Kohberger's Trial Moves to Boise

0:00Hi, everyone. It's Kana Whitworth, and I'm back with an important update on Brian Koberger's trial. trial. Judge John Judge has agreed to move the trial out of Moscow, where the four University of Idaho students were murdered, and the Idaho Supreme Court has chosen Boise. The judge sided with the defense that Latah County was tainted by pretrial publicity, and there's a new judge who will hear the case, Stephen Hippler. Koberger has been charged with the four murders and maintains his innocence. Joining me to talk about this development is Brian Buckmeyer, ABC Legal Contributor, who spent his entire career as a defense attorney.

0:49Brian, you and I have discussed this case at length, and you watched the hearing a couple of weeks ago. It was interesting, though, because this is very rare for a change to actually be granted. And here we are. Well, thank you for having me. It's very rare that an emotion like this is even made, let alone granted. But I think from the evidence that they present in the arguments that they made, they had a strong showing. And I'm not too surprised that they got the change of venue. And one thing we heard is that this is really hard on the families in particular, right, for them to have to travel to a trial.

1:19But the defense made compelling arguments and they leaned heavily on these witnesses to talk about this survey that they conducted in Moscow, in several different counties, to show that this county has pre-trial prejudice, essentially, against their client. Do you think it was some of those statistics that weighed heavily? So in the decision that came down in the court, there were two reasons for why the change of venue went through. One was for the presumed prejudice that the defense had proven, but also just for the convenience of the venue, that it appeared that Latah County might've had some difficulties with conducting this trial.

1:55But to the first point, the prejudice, yes, I do think that some of the surveys were a bit of a tipping point in helping to show when people responded like, I feel pressure that he has to be found guilty. They'll burn down the courthouse if he isn't. He has to prove to me that he is not guilty, going against the presumption of innocence. So I think a lot of those answers help the defense for sure. Nobody in the state of Idaho is unaware of this case. Frankly, it's of high relevance across this country. I've heard from people in other countries that know about this case. And so moving it to Boise, is it just about really the size of the jury pool that you have access to now?

2:34It's the most populated city. So I think the size plays a part of it all in that, yeah, the size and the distance. So the size, you've got more people. So you're hoping, statistically speaking, you'll get less people that interested with the case and also the distance. I mean, think of it this way, right? I'm born and raised in Toronto, Canada. I live in New York. New York is a city that I love. But if something bad happened in Toronto, where my family grew up, where I have strong connections there, I may be a little bit biased as to if someone goes and kills multiple students in that school. Now, I love and live in New York, but I don't have the connections in the same way that I do at Toronto.

3:09And I think that's really at the heart of the defense's argument, that the strong connections, the need for justice to be done in this community, it's too difficult for people within that community to make that decision. And they're considering the constitutional rights of Brian Kober. The other thing that's changing now, too, is the judge, right? So the judge in Moscow had the decision. He could have stayed on the case. But as you and I were going through these filings, it was clear very early on that he was not going to stay on it. So a new judge has also been assigned. And these were decisions made by the Idaho Supreme Court as to the judge and the where.

3:41And we're trying to learn about this new judge, Steve Hippler. And it's my understanding he was what, appointed in 2013. And he's known for presiding as well over the mental health court program in that county. And one thing that's kind of interesting to me, Brian, is that while some of these victims' families, in particular Kaylee Gonzalez's family, very frustrated with this trial moving so far away from them, especially considering it could be three months long. But they seem to be encouraged by the fact that there is a new judge overseeing this case. In fact, they called it a new chapter for them.

4:15And they went on to say that Judge Hitler's strength and determination does not go unnoticed. What is it like, though, for a case like this to land in this judge's lap? So the Supreme Court selecting a new judge, I don't think that's kind of like a wheel of fortune, spin of the wheel. Whoever it lands on, it goes to that judge. I think there is a lot of thought behind this in terms of this judge's reputation, their record, the way they handle cases. There are probably a bit numerous positive words to be said of the defense bar as well as the prosecutors. And I think when you select a judge like this for a case that you know is going to have this much impact on the community, the state, the country, I think that probably that Judge Hippler's record is above reproach.

4:57And so it makes a lot of sense. I think we're going to at least see or hear from this judge pretty quickly here because lawyers for Brian Koberger have filed what has been really described as a hefty batch of requests with the court because they want the death penalty removed. This is not the first time they've made this effort, but they are making it again. It was slated to take place in Moscow in November, but now this will go to Ada County. I don't have a date. How quickly do you think that they'll move all that? Noting here, they still have to move the defendant as well. Yeah, so there's a lot of moving pieces here.

5:29The Department of Corrections or the equivalent in Idaho will have to move Brian Koberger. The moving of him is an obstacle. Where he stays, I'm assuming he's not going to be in Gen Pop, but Boise, I'm assuming, has a larger detention center than that of Latak County, so that shouldn't be an issue. And then, of course, like you're saying, the motions that are going to be presented to the judge, the defense is going to try to get a second bite of the apple of everything that they can. Judge Hitler and Judge Judge sit at the same level as judges. And so one can overrule the other, especially if one hasn't ruled on a motion as yet.

6:00Just one other thought that keeps popping into my mind here in terms of the efforts to get this trial out of Moscow. You know, there's a lot of kids that grew up in Boise that attended the University of Idaho, right? One amongst them is one of the surviving roommates. that was in that house. She lives in Boise. And now, I mean, the trial is coming down right in front of everybody there in Boise. What will that impact be like in that community? I think it's a heavy weight to put on a community because while the pressures that exist in Laetau County might not exist in Boise, it doesn't mean that there are not pressures there.

6:36I think people, as you pointed out, are fully aware of this case. They are now fully aware that it's coming to their backyard. And I think anyone who gets a jury notice to show up in and around the time that we learn that this case is going to go to trial, they're going to walk in there with the heaviest of burdens and responsibility to try to listen to this case. So it's a lot to bring to any community. We do know that we have seen Boise can handle a big case like this. We've seen Lori Vallow and Daybell. I mean, they played out right there in Boise. Yeah. And actually, they had the same situation where there was a change of venue that Lori Vallow Daybell and Chad Daybell, the quote-unquote doomsday couple, a story that had wrapped the nation, if not the world, in its story for all Swiss interns.

7:22And Ada County did a great job of handling that case. And when I say great job of handling the case, I'm not saying, well, they were found guilty, so that's a great job. I'm saying the protection, the officers, the court staff, the clerks, the judge, the prosecution, the defense, the way the system operated was as it should have. And so there's a recipe for success already there. Managing the logistics of it. And noting here that even though this is going to Ada County, Latah County still has to pay for it. They have to pay for the transportation of the witnesses, which will include several Moscow police officers and people that attended the university.

7:56So there will still be a heavy burden financially on Latah County, even if this is playing out there in Ada County. But also, Brian, I mean, we're expecting at minimum a three-month trial starting in June as of now. I'm not asking you to look into your crystal ball, but I am curious as to your thoughts here on, do you think that this June trial date will hold? All right. So I do have a bit of a tiny crystal ball. I just try not to let everyone know this. I think there is a possibility that it does get shifted. And this is why I say this. We don't know what the court calendar is like in Boise, Idaho.

8:30I would anticipate that a case like this in New York, or at least in Brooklyn and Manhattan, we call this like the ceremonial court part. It's the largest court part in the building that has the ability to house all the media, all of the defendants, all of the moving pieces. I'm assuming Boise has one and maybe only one. And so the question becomes, is there a big case there that's already handling that case? Does the judge have the ability and the resources to handle the case on this date? Latah County picked that date based on the availability in that courtroom, not based on the availability in Boise.

9:01So is there a chance that they get moved just because of judicial economy trying to balance all the other cases in there? Yeah, there's a good chance, but I think this judge is going to try to push ahead with this timeline for the sake of all parties involved.

9:36vary based on how you buy.

9:47Do you think that his defense has a shot at getting the death penalty off the table? That one is a difficult one. Do I think they have a shot? Yes. Do I think you can throw a football 80 yards and get a touchdown? Yeah, I've seen it before, but it's very difficult. This is the type of case, and this is coming from a person who is not a large proponent of the death penalty, both personally and also in terms of its application. But even as a person, as myself, with those strong convictions, if there was ever a case to argue that the death penalty should exist, this is one that you have a strong argument for.

10:21If this person is found guilty, this is why the death penalty exists. And I think just that idea of a person, if found guilty of murdering four college students in this way, the defense is really have an uphill battle. And the judge is going to have a real hard time of saying, you know what, you've met the burden of this not being a death penalty case. It just seems like a tough argument to make. It sounds like their argument, Brian, is that they're saying there was no check placed on the prosecutor that was seeking it, Bill Thompson, and that they're calling it almost essentially forced Brian Koberger to then abandon his right to a speedy trial.

10:55that's how they're trying to go after that. Hey, one former public defender to a current public defender, I like the way you move. I like the argument. It's creative. I think it gives you something to argue, especially if you have case law to support it. But I don't think that that is your slam dunk, even a three-point shot that's going to really make it. I think if anything, you have created a really great appellate issue that you can really theoretically dig into post-conviction if that occurs. but I would be shocked to see a trial judge agree with that. It's interesting. I mean, we have seen Ann Taylor and Brian Koberger's defense team essentially throw everything they can at the wall, trying to see what sticks.

11:37So we kind of know that that's the name of the game here, but we've heard time and time again from the prosecution, they want this to go to trial once, they want it to stick, and they don't want to have those appeal issues. Yeah. And Ann Taylor, for everything I've seen and read, she is a public defender's public defender. She is doing a phenomenal job. She is what we call the best defense money cannot buy because she's a sign not paid for. And so I tip my hat to her from one professional to the next. But that's a difficult argument to win, I think. Brian, now that this trial is moving 300 miles away from where the crime took place, and in all likelihood, everyone involved is highly aware of this case.

12:15But there is a mountain of filings that this new judge is going to have to go through. There's, of course, been the gag order that we've been dealing with in Latah County. Where do they pick up this case? Do they have to start at square one? I'm going to explain it to you the same way that I would explain it to a client of mine. The short answer is no, you don't start at square one. The Judge Hippler will take the case as Judge Judge had and should continue going forward, taking the same rulings that Judge Judge had and then just moving forth any kind of new motions. However, I would say this.

12:45As a child of divorce, if one parent says, Brian, you can't have cookies after nine o 'clock. Like, well, when I go to the other parent, because they're at the same level and have the same authority, I may, again, as a child of divorce, try to play one parent off the other. And because they have the same authority, I may be able to revisit the same issue that the first judge denied with the second judge. And that may work. So we are not at square one, but you might see more of the same issues relitigated because there's a new judge there. Do you think the gag order could go away? I know everyone at ABC would love that.

13:20I think that's a pretty long shot to happen. I think the basis and the reasons for the gag order still remain very strong. And while the new judge, Judge Hitler, does have the ability to revisit and remove the gag order, that is a tall order. There would have to be some sort of new circumstances or a change of position by the prosecution and the defense for a judge to really say, I will reconsider this and I will change it. But it's possible. ABC can do a new filing. The defense can file a new motion. This judge can do whatever they want. They do not have to follow the previous orders of judge, judge.

13:54I want to ask you another question, too. And forgive me for putting you on the spot with this. One thing I heard from the Gonzalez family was a lot of frustration when the change of venue order was granted. And they brought up a few things that they felt were concessions, kind of, that they or the prosecution had made in order to try to keep it, you know, in Latak County. They brought up the non-dissemination order, the gag order. and private hearings. But they also brought up the fact that the defendant, Brian Koberger, was allowed to be dressed in a suit for every hearing that was televised, even if it came through just those YouTube cameras, right?

14:31That he wasn't in that orange prison jumpsuit. And additionally to that, Brian, they brought up the fact of like, who's paying for that? Who's paying for his suits? And I noticed the coat he had on the last time, in all likelihood, was pretty new. The vents hadn't been cut yet. Yeah. So I'll say this. I don't know who's paying for Brian Koberger's suits, but I will say this. I used to work at the Legal Aid Society in New York. It's the largest, oldest, and probably most well-funded public defenders in the country. And my clients wore my old suits. We probably had the resources to pay for our client's suits.

15:02But what we did was if attorneys had old suits or they retired, we had a suit closet that we gave to our clients. So it would really baffle me that Latah County or that Ann Taylor's office or even the state of Idaho, who I think in the past has been sued because their public defenders offices were so underfunded, have the ability to pay for suits for Brian Koberger. I would probably think that those are being donated from another public defender or something along those lines. And that goes – I'm sorry. I respect the family's decisions and their points. But a jumpsuit just makes you look guilty where you have a presumption of innocence.

15:37everyone should have the ability to walk into a court, whether it be physically seen as having the presumption of innocence or not. And a suit does help that in many regards. So I'm pro let the person wear a suit. If you're guilty, a suit won't change it, but allow that presumption to exist. That's so interesting. Any other thoughts, Brian? No, I think what's going on here in Laetit County and now moving to Ada County is the attempt to preserve what we believe the system should be. And so moving the case, if it preserves that presumption of innocence, if it maintains the constitutional rights of an individual, whether they are innocent or actually guilty, that's what we want.

16:14And sometimes justice is hard to get to and it's long and we don't have the patience, but we want to make sure we get it right and get it right the first time. Yeah. And especially in the end here, if this change of venue for people on the outside of this, if it validates the outcome because they feel like overall it was more fair, no matter what the outcome is, right? Then you also probably don't spend a ton of time in appeals court. Yeah. I mean, death penalty cases by their nature, one of the larger arguments are that life in prison without parole is easier from a financial standpoint because of all of the appeals when it comes to a death penalty case.

16:50And so just the fact that it's a death penalty case, there will be a long and very expensive appeal if death is the ultimate answer here. We'll see how the judge handles that next hearing and that next request from the defense. It sounds like that will be perhaps his first task. Brian, thank you so much for being here with us and helping us understand all of this. We always, always appreciate you. My pleasure. Thank you for having me.

17:25I've been speaking with the Gonzalves family, as I often do, and they gave us a statement when this venue location was decided, as well as the judge. And part of the statement expresses gratitude. And also they said, everything can change, but the only four names that truly matter will remain the same. The only ones you should ever see as a title to an article. Kaylee, Maddie, Zanna, and Ethan. More than four students. More than four victims. More than the University of Idaho 4. And our thanks to Brian Buckmeyer, again an ABC News legal contributor and defense attorney. and that's it for this update but we will continue to monitor this case and bring you updates as the news warrants.