(NewsNation) — A judge will hear arguments Friday over a gag order in the criminal case against Bryan Kohberger, the man charged with killing four Idaho college students late last year.
Although the judge may alter the order, it’s unlikely it will be lifted altogether, said NewsNation legal contributor Sara Azari, a criminal attorney and co-host of The Presumption podcast.
“We can expect clarification with respect to the families — whether it applies to them or not, or to what extent — and we can expect maybe a slight modification,” Azari said.
Kohberger’s case garnered widespread publicity in November when police were called to an off-campus home and discovered the bodies of four University of Idaho students –Kaylee Goncalves, Madison Mogen, Ethan Chapin and Xana Kernodle. The gag order in Kohberger’s case was originally ordered in January, following months of around-the-clock news coverage and public speculation.
It’s not unheard of for judges to limit public knowledge about cases that draw considerable media attention.
The basis for this move is rooted in a high-profile 1950s murder trial in which a man was convicted of killing his pregnant wife. More than a decade after his conviction, the Supreme Court determined he hadn’t received a fair trial in light of the potentially harmful publicity that surrounded the case.
As a result, gag orders are often issued as an attempt to protect the integrity of the trial and avoid swaying a potential jury pool, Azari said.
“A good prosecutor does not want to get a conviction by cheating or anything that is constitutionally challengeable because they’re opening themselves up to a conviction that could be overturned,” said Azari, who is not an attorney on the case. “What good is a conviction if it doesn’t stick?”
Before a gag order is issued, there must be an overhanging risk of interference with the fair trial process. Any gag order issued as a result must be what is considered the “least restrictive” to make sure First Amendment rights aren’t violated in the process, according to the justice department.
In the Kohberger case, 30 news organizations including the Associated Press sought to appeal or change the gag order in February. Those efforts ultimately failed to eliminate the order, but they’ll have another chance to make their case Friday.
On one hand, the news organizations say the gag order in Kohberger’s case violates the First Amendment and limits news coverage because it is “vague,” broad and unreasonably restrictive, according to court documents.
Goncalves’ family has also asked for clarification about the order, which they say prevents them from speaking about the case.
However, prosecutors and Kohberger’s defense attorney want to see the order remain in place to ensure a fair trial and an impartial jury, they wrote in court filings.
In lieu of official information, the case has been the subject of at least one law enforcement leak and widespread speculation, Azari said. In that way, the gag order may be doing more harm than good, she said.
“Every move he makes, everything he files – people are reading between the lines,” Azari said. “(They) are often misinterpreting what is a standard language on an order, for example.”
With the gag order in place, attorneys on either side are barred from clearing up potential misinformation, Azari added.
“Sometimes you might have a gag order and there are no issues,” Azari said. “But in this case, it’s been problematic because the speculation, for lack of knowledge, has (I think) really damaged Kohberger in a way that perhaps actually having knowledge about the evidence may not have.”
In May, Kohberger chose not to enter a plea on any of the first-degree murder or burglary charges filed against him. The decision, referred to as “standing silent” resulted in default not-guilty pleas on all five counts while the case is ongoing.
A four- to six-week jury trial is tentatively set to begin Oct. 2.
