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Opinion: Gag order fuels wild speculation in Idaho killings

We journalists hate judicial gag orders, and you should, too.

While judges insist they protect the rights of the accused, I maintain that they are the tool of a lazy judiciary which has many other ways to protect a defendant’s right to a fair trial.

The main reason I strongly object to them is because they cut off the flow of official information from those who have the most direct contact with a case. This leads journalists to rely on other means of inquiry which too often result in speculative and uncorroborated information.

Latah County (Idaho) Court Magistrate Judge Megan Marshall has expanded her original gag order involving the highly flammable University of Idaho student murders case.

This sweeping gag order prohibits attorneys representing the victims’ families from discussing the case publicly. This is on top of the broad original gag order she first issued early this month which prevents anyone involved in the case from discussing the proceedings publicly.

Bryan Kohburger, 28, has been charged with four counts of homicide in the stabbing deaths of University of Idaho students Ethan Chapin, Kaylee Goncalves, Xena Kernodle and Madison Mogen in November in an off-campus apartment complex.

Kohburger was taken into custody during the early-morning hours of Dec. 30 at the home of his parents in Chestnuthill Township, Monroe County. The home is part of the sprawling Indian Mountain Lake gated community located in Monroe and Carbon counties.

There is no doubt that the two-hour NBC Dateline program on Jan. 13 was a big factor in the judge’s most recent decision, especially because Goncalves’ parents were featured prominently during the program as they gave their views on their daughter’s tragic death.

Judge Marshall issued the first order shortly after Kohburger was arrested. She followed this with: “Any attorney representing witnesses, victim, or victim‘s family, as well as the parties to the action, including but not limited to investigators, law enforcement personnel, and agents for the prosecuting attorney or defense attorney, are prohibited from making extrajudicial statements (written or oral) concerning this case.’’

You will notice that the news media are not included in the gag order, because, in the past, courts have ruled that this smacks of prior restraint and violates the First Amendment’s Freedom of the Press provision.

Here’s what the judge’s prohibition involves: Attorneys for the victims’ families cannot discuss evidence in the case, Kohburger’s character, credibility or criminal record (if there is one), results of any examinations in the case, opinions on the merits of the case, anything that would result in impacting the fairness of a trial.

This ruling will remain in force until there is a verdict, which could easily be next year or beyond, depending on legal maneuvers by both the prosecution and Kohburger’s defense. Kohburger has denied the charges.

One of the prime reasons a judge takes the extraordinary steps to impose a gag order is to give the defendant the rights of the presumption of innocence, but I maintain that there are several other major alternatives to the insane restrictions of a gag order.

For example, if the judge believes Kohburger cannot get a fair trial in Latah County because of the extensive attention the case has gotten, she can decree a change of venue (move the case to a different jurisdiction in Idaho) or she can require a change of venire (bring in members of a jury from another jurisdiction in Idaho to hear the case in Latah County).

What I fear is that wild speculation about Kohburger and this sensational case will intensify among online sleuths who are determined to “solve” the case. It also will lead to other programs such as the outrageous speculation of Fox News’ commentator Nancy Grace. Even the NBC Dateline case, which applauded the excellent and meticulous police work of Idaho and Pennsylvania authorities, then went overboard by speaking to Kohburger’s classmates from his days at Pleasant Valley High School, DeSales University, where he earned a master’s degree, and Washington State University, about 10 miles from Moscow, Idaho, where the students were killed. Kohburger was enrolled in the university’s Ph.D program and was a teaching assistant there when he was arrested.

Does the fact that Kohburger was overweight and bullied as a middle-schooler make him a coldblooded killer? Of course not, on its face, but that is the conclusion some of these disclosures would have us come to. Otherwise, what’s the purpose in dredging up something like this from 20 years ago.

When it comes right down to it, I want to gag when I hear a judge has imposed a gag order, because she is doing the accused or the public no favor.

By Bruce Frassinelli?|?tneditor@tnonline.com