OPINION: Absolute Kohberger gag order is absolutely excessive

Look no further than last week’s developments in the Bryan Kohberger murder case for proof that stopping anyone associated with it from uttering even a single word in public goes too far.

On the heels of Kohberger’s arrest last December for the murders of University of Idaho students Kaylee Goncalves, Madison Mogen, Xana Kernodle and Ethan Chapin, Latah County Magistrate Judge Megan Marshall imposed a broad gag order on attorneys on both sides as well as those representing witnesses, victims or the victims’ family, investigators and law enforcement personnel.

A coalition of media outlets, including the Lewiston Tribune and Moscow-Pullman Daily News, is in court arguing the measure is overly broad.

Here’s one measure: Presumably a gag order is in place to prevent people with access to sensitive evidence from disclosing anything that could taint a jury pool responsible for deciding Kohberger’s guilt or innocence at trial. But what purpose could such an order serve if all it accomplishes is preventing Latah County’s duly elected prosecutor from explaining procedural choices he has made?

For months, the public had been expecting to learn something about the case when Kohberger appeared in court for a preliminary hearing set for June 26. The forum, familiar to fans of the old “Perry Mason” TV series, requires prosecutors to submit enough — but certainly not all — of their evidence in order to convince a sitting magistrate to order a defendant to stand trial.

Idaho’s system traditionally — but not always — relies on preliminary hearings. And about four decades ago, Idaho media groups successfully urged Idaho courts to keep these forums open to the public.

Defendants are under no obligation to present evidence and most do not. But, as the Idaho Statesman’s Kevin Fixler reported in April, Kohberger’s lawyers were making plans to interview a surviving witness as a source of exculpatory evidence.

All of which came to an end last week when Latah County Prosecutor William Thompson announced he had taken the case to a secret grand jury — and secured an indictment requiring Kohberger to answer to the murder charges in district court. Last week, Kohberger chose to stand silent, and Second District Court Judge John Judge entered a not guilty plea on his behalf.

This sent news organizations scrambling for legal analysts not associated with the matter to offer some background information.

For the Tribune, it was Nez Perce County Prosecutor Justin Coleman.

For the Statesman, it was Boise-based criminal defense attorney Edwina Elcox.

But why not Thompson?

You could ask him why he elected to empanel a grand jury?

He’d answer: gag order.

Did he do so to spare surviving victims and others from facing cross-examination in a public setting?

Gag order.

Were the victims’ families consulted?

Gag order.

When did he change his mind about seeking an indictment rather than pursuing a preliminary hearing?

How long was the case before a grand jury?

Why was he reluctant to share details of the case with a public that has been shut out from official information for months?

Gag order. Gag order. Gag order.

This is not about substance. That’s an issue of fairness.

This is about process. That raises concerns about accountability and transparency.

Of the three branches of government, none is more reliant upon the public’s trust than the judiciary. We’re asked to believe the process is fair and impartial. But how confident can we be if the judicial system operates behind closed doors and beyond the reach of simple questions about what is being done and why.

If the system is too tight-lipped, rumors and distrust fill the vacuum.

Any gag order that impedes a community’s right to watchdog its criminal courts is a gag order that’s become excessive.

It’s difficult to believe Thompson wants to avoid answering at least some of these benign questions. When this issue goes before Judge next month, he should trim the gag order back enough to give the prosecutor that opportunity. — M.T.