ID - 4 Univ of Idaho Students Murdered - Bryan Kohberger Arrested - Moscow # 70

[NCWatcher]

It’s unlikely LE would have shared any information about the investigation, including a drug-related motive, with the Public Defender’s office at the time when BK’s ID attorney was appointed.

JMO

True. But it's not a big leap to think the distribution/sale of drugs and alcohol might occur at campus "party houses." That's been happening ever since there were party houses on campuses. Alcohol was the main party drug prior to the 1960s but after all, 1968 was 55 years ago!

There's no evidence that I know of to suggest drugs or drug dealing played a role in this crime but insider knowledge isn't required for someone to wonder about drugs. And as a PD, I expect AT has represented lots of local people in drug cases, not only the 3 parents we've heard about. So she's probably pretty familiar with what goes on.
JMO

 

[Chrissymick]

IMO there is a difference between the ethical COI issue and the appeal of a criminal case. A defendant could lose a COI appeal in the criminal case for harmless error and the attorney could still face discipline for a COI issue. Most attorneys are not going to analyze this sort of COI by whether or not the defendant will win an appeal, but whether or not the potential COI or COI will materially limit their representation of a client...IMO

Agreed, but I don't think

 

[CityKid]

The problem for the defendant's attorney arises when the defendant wants to explore alternate theories and ask his attorney to start investigating the parent(s) of one of the victims and their involvement with drugs. The defendant may want to look at whether some drug dealers had motive to hurt the family of someone who stole/snitched/etc against said drug dealer.

Is his current attorney in a position to tell her investigators to go investigate her former clients? Does the attorney have to withhold information from the client or their investigator because she obtained that information through her former representation of the person her client wants investigated? To do so she would have to get the previous client's waiver to divulge that information to the new client. IMO....not sure the victim's parents would waive attorney confidences so the attorney could vigorously represent the person accused of killing their child.

Now perhaps the defendant's attorney has not thought about this potential angle, but as soon as the defendant hears that any of the victim's family was involved with drugs in anyway, they have a right to ask their attorney to investigate this for their case. If an attorney's previous representations hinder that in any way, there is a serious conflict issue that will stick to this case like gum on the bottom of a shoe...IMO.

Interesting to hear this from an attorney; thank you @Cassady! Before we knew anything except that four students had been killed, my thoughts went to drugs and perhaps a deal going wrong. After hearing what we know now about parents' histories, I really thought that would be what happened. I didn't expect a random grad student would be the culprit. I could absolutely see exploration of alternate theories as part of the defense strategy (and I think it's fair for the defense to do so) and this turning into a conflict of interest. (I haven't weighed in much on this aspect because I'm from a big city and I'm not familiar with the way this works out when there are so few attorneys qualified for death penalty cases in a large geographic area.)

 

[Justice101]

Yes, very good to hear from attorneys in regard to this COI issue and examples of how this might go down that road while defending someone.

 

[CGray123]

Or, if she is replaced with a different public defender, he would claim he did not have the most effective counsel because she is the top public defender.

As our attorneys have pointed out, a conflict involving one attorney in the PD office could be imputed to all, requiring the appointment of outside counsel. However, a client can waive the imputed conflict and continue to be represented by the organization. Nothing is ever simple in this area, it seems. Here's the Idaho rule:

"RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless...

(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7. ..."

and Rule. 1.7 says the conflict can be waived if:

"(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing."

Idaho. Rules of Professional Conduct

 

[maskedwoman]

Idaho prosecutors will seek death penalty in Kohberger trial, says judge

Prosecutors are likely to seek the death penalty for Bryan Kohberger, who is accused of murdering four Idaho University students, according to Belvin Perry.

www.newsweek.com

That headline ticked me off. Belvin Perry has no idea what the prosecutors will do, only what they are likely to do. And, of course, the article says likely. <modsnip - media tactics are off limits> MOOooooo

 

[WingsOverTX]

Yes, it’s the “perception is reality” trope. If the masses perceive it as a conflict of interest, it becomes a conflict of interest. Jmo

I don't think it's about "the masses" & doubt public sentiment will play any role in the final decision to find another PD or keep AT on the case.

I also think it is GREAT such an issue is in the public domain. Criminal justice issues mostly get resolved behind closed doors. This came to my attention in the Morphew case where an investigation revealed the extent of lack of public knowledge about criminal case adjudication due to judges deciding to keep proceedings private in Colorado more often than not.

And despite a new rule to help prevent it, it's still happening there:

Judge’s one-word order closing entire court file raises questions about adherence to new Supreme Court rule - Colorado Freedom of Information Coalition

The rule has been in effect since May 10, so it was surprising to see a judge issue a one-word order temporarily sealing all documents in a felony menacing case against Fifth Judicial District Court Judge Mark Thompson. “GRANTED” is all Judge Paul Dunkelman wrote. His order did not contain any...

coloradofoic.org

Except for the unfortunate consequence of three parents of the victims having their public criminal records outed, this very public conflict of interest debate is to me a healthy one.

If we want the media to alert us on such issues then we have to understand it may "blow up." It's much worse for the norm - secrecy - to rule the day.

JMO

 

[CGray123]

I do not see the "appearance" language in either the ABA Model Rules or in the Idaho rules

'Model Rules of Professional Conduct

https://isb.idaho.gov/wp-content/uploads/irpc.pdf

believe that practice has backed off the "appearance" language because it is so subjective, but I do not have the history of all the ABA/Idaho rules to review. Current rules talk about "materiality" and "remoteness."

Maybe by reassigning CN(K) a new atty, ID authorities believe that any problem was cured- she is independently represented.

Also, I have to say so many times I have seen people in more populous states say: "why do we have so many lawyers?" Here you see, in a rural area, what happens when you have just a few. What is the likihood, in a rural area, that a lawyer or court officer would be in some possibly small way, acquainted with the family members of a defendant? Pretty likely IMO.

You're right. The extremely vague and subjective "appearance of impropriety" standard was abandoned (for attorneys) decades ago in favor of the more specific and enforceable rules found in IIRC Rule 8.4:

"RULE 8.4 MISCONDUCT

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conductor other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law."

 

[WingsOverTX]

There could be a possibility that the murderer (BK is the accused suspect by LE, so will go with that premise that it is "he" for the sake of brevity) might have known beforehand/before the murders were committed that some of the victims' family members had had drug offenses which he could have learned about through public records beforehand/before the murders, and JMO he surmised that:

• Some of the victims' family members having had drug offenses could serve as possible distractions on "motives" as an attempt to obfuscate and to lead LE in other directions/on a wild goose chase/astray "And/Or:"
• The type of murders (stabbing people viciously one on one/one by one in their beds or bedrooms in the dark of the night) looked like a "crime of passion" that could have been committed by one of the four victims' intimate partners or ex partners or some random stalker/incel bent on revenge killings (e.g., someone in one or more of the 4 victims' personal sphere or just outside it) "And/Or:"
• The location of the murders (a college student rental house just off campus but "cheek and jowl" with fraternity/sorority houses) where 3 of the 4 victims lived and the 4th victim spent time, and the area the house was located was rumoured to be a a place to party and the house the victims lived/spent time in was rumoured to be a "party house" where, presumably, many many people's DNA would be present that would seriously complicate LE's ability to "dial in" on one person's DNA that could be the culprit.

So, IMOO, BK planned for and set up multiple versions of some "tell-tale" and/or relatively obvious possible distracting motives in an attempt to deflect from his motives (no one is privvy to) and/or to create a possible "perfect storm" of complex confusion on the motive for the murders in an attempt to "stump" local LE (Moscow PD).

Acknowledging that "motive" in and of itself is not a key component of solving murders and evidence truly is the "go-by" that can be used by the prosecution to prove innocence or guilt on a case by case basis, IMO, the evidence can often be the real "prove-out" that serves as the underlying reasons for motive.

IMOO the above possibilities are the basis(es) for why BK asked LE in PA upon his arrest something along the lines of "Have you arrested anyone else"?

IMO, that was because he thought he had been so thorough and comprehensive in setting up so many possible "ulterior motives" for the murders, that he was actually super surprised that LE "came for him" and so just had to throw further questions towards LE whether they did just come for "him alone" when he was arrested (and accused as the only suspect) when he really thought they would be distracted for so much longer, if not forever, in investigating the murders and identifying suspects.

JMOO, etc. and RIP Ethan, Kaylee, Maddie, and Xana <3, justice is coming

Really? I think you're giving a perp who left a knife sheath at the scene of the crime (among other errors that allowed a quick perp ID) WAY TOO MUCH CREDIT.

MOO

 

[CGray123]

Idaho prosecutors will seek death penalty in Kohberger trial, says judge

Prosecutors are likely to seek the death penalty for Bryan Kohberger, who is accused of murdering four Idaho University students, according to Belvin Perry.

www.newsweek.com

That headline ticked me off. Belvin Perry has no idea what the prosecutors will do, only what they are likely to do. And, of course, the article says likely. <modsnip - media tactics are off limits> MOOooooo

He attempted to rationalize his comment based on the DP statute's aggravating factors that make the charges facing BK eligible. However, as he should know, most murders are eligible for the DP under this standard.

 

[maskedwoman]

He attempted to rationalize his comment based on the DP statute's aggravating factors that make the charges facing BK eligible. However, as he should know, most murders are eligible for the DP under this standard.

Agreed. I was not upset with Belvin Perry. I was irritated at Newsweek for putting "will" in the headline as if it were settled, all decided. His quote made it clear he was giving his opinion about what was likely based on all the known facts. And, of course, anyone who read only the headline will tell everyone they discuss it with that BK definitely is going to get the DP.

 

[wary]

Or, if she is replaced with a different public defender, he would claim he did not have the most effective counsel because she is the top public defender.

Has that claim ever been made and upheld, I wonder? Don’t they have to point to specific things that their counsel did wrong?

MOO

 

[Skigirl]

Or, if she is replaced with a different public defender, he would claim he did not have the most effective counsel because she is the top public defender.

There is no right to have the very very very best lawyer, the requirement is that they have the right to representation by counsel. Counsel needs to fall a lot shorter than "not the very best" in order for "ineffective assistance of counsel" to be an issue. IMO.

 

[CGray123]

I don't think it's about "the masses" & doubt public sentiment will play any role in the final decision to find another PD or keep AT on the case.

I also think it is GREAT such an issue is in the public domain. Criminal justice issues mostly get resolved behind closed doors. This came to my attention in the Morphew case where an investigation revealed the extent of lack of public knowledge about criminal case adjudication due to judges deciding to keep proceedings private in Colorado more often than not.

And despite a new rule to help prevent it, it's still happening there:

Judge’s one-word order closing entire court file raises questions about adherence to new Supreme Court rule - Colorado Freedom of Information Coalition

The rule has been in effect since May 10, so it was surprising to see a judge issue a one-word order temporarily sealing all documents in a felony menacing case against Fifth Judicial District Court Judge Mark Thompson. “GRANTED” is all Judge Paul Dunkelman wrote. His order did not contain any...

coloradofoic.org

Except for the unfortunate consequence of three parents of the victims having their public criminal records outed, this very public conflict of interest debate is to me a healthy one.

If we want the media to alert us on such issues then we have to understand it may "blow up." It's much worse for the norm - secrecy - to rule the day.

JMO

I agree that it would be healthy for the public to understand better the COI rules (and other ethical standards) that apply to attorneys (I think the coverage has done an extremely poor job of that, so far). However, I think it's important to remember a couple of things:

1. The public interest in transparency must be balanced against the defendant's rights to have a fair trial by an impartial tribunal, in which he is presumed innocent until guilt is proved beyond a reasonable doubt. Absolute openness can never be an absolute good in these circumstances.

2. The Constitutional requirement that hearings and trials be open to the public assures that we will know the charges, the evidence supporting them, and the legal issues presented. To me, this diminishes the urgency to know every detail from the time of arrest. Public oversight isn't about media attracting eyeballs by sensationalizing issues and satisfying salacious curiosity: it's about assuring that our justice system is working as intended.

3. The Colorado rule setting standards for closing court records allows a judge to do so for compelling reasons, which she must state in her order, and this is still commonly done before the preliminary hearing. The article you have cited is from 2021, just after the rule became effective. The problem with the judge's order sealing the record was not that sealing was unjustified: rather, it was that the judge did not specify her reasons for doing so. After the closure allowed time for careful redaction of the records, they were unsealed.

 

[jepop]

There could be a possibility that the murderer (BK is the accused suspect by LE, so will go with that premise that it is "he" for the sake of brevity) might have known beforehand/before the murders were committed that some of the victims' family members had had drug offenses which he could have learned about through public records beforehand/before the murders, and JMO he surmised that:

• Some of the victims' family members having had drug offenses could serve as possible distractions on "motives" as an attempt to obfuscate and to lead LE in other directions/on a wild goose chase/astray "And/Or:"
• The type of murders (stabbing people viciously one on one/one by one in their beds or bedrooms in the dark of the night) looked like a "crime of passion" that could have been committed by one of the four victims' intimate partners or ex partners or some random stalker/incel bent on revenge killings (e.g., someone in one or more of the 4 victims' personal sphere or just outside it) "And/Or:"
• The location of the murders (a college student rental house just off campus but "cheek and jowl" with fraternity/sorority houses) where 3 of the 4 victims lived and the 4th victim spent time, and the area the house was located was rumoured to be a a place to party and the house the victims lived/spent time in was rumoured to be a "party house" where, presumably, many many people's DNA would be present that would seriously complicate LE's ability to "dial in" on one person's DNA that could be the culprit.

So, IMOO, BK planned for and set up multiple versions of some "tell-tale" and/or relatively obvious possible distracting motives in an attempt to deflect from his motives (no one is privvy to) and/or to create a possible "perfect storm" of complex confusion on the motive for the murders in an attempt to "stump" local LE (Moscow PD).

Acknowledging that "motive" in and of itself is not a key component of solving murders and evidence truly is the "go-by" that can be used by the prosecution to prove innocence or guilt on a case by case basis, IMO, the evidence can often be the real "prove-out" that serves as the underlying reasons for motive.

IMOO the above possibilities are the basis(es) for why BK asked LE in PA upon his arrest something along the lines of "Have you arrested anyone else"?

IMO, that was because he thought he had been so thorough and comprehensive in setting up so many possible "ulterior motives" for the murders, that he was actually super surprised that LE "came for him" and so just had to throw further questions towards LE whether they did just come for "him alone" when he was arrested (and accused as the only suspect) when he really thought they would be distracted for so much longer, if not forever, in investigating the murders and identifying suspects.

JMOO, etc. and RIP Ethan, Kaylee, Maddie, and Xana <3, justice is coming

Far out. I respect your right to speculate but reading that just about fried my brain circuits with its complexity. It seems far far from the realms of possibility to me but that is JMO ofcourse. If LE are investigating with the same rigour and professionalism they used to gain arrest (MOO), I think we will see much more evidence on the how of the crime at the PH (and/or trial). EBM - sentence delete.

 

[ktm44]

BBM

Not to mention she's the POA for one of those parents.

ETA: she (AT) had to have known about X, because didn't her mom put AT as POA a few days AFTER the murders? I'm just picturing the conversation where AT said, 'well, can't your daughter do it' and mom replying with, 'well, no because.....'. JMO

I don't think she has a POA and while I'm not certain the wording on that was correct, if there was a POA for the mother, it would have been written so that someone within the public defenders office could invoke it.

It also seems like mom may not have been available for some reason to receive any paperwork that showing her representation had changed. I certainly understand why she feels as she does but I don't believe that when you use public funds for legal representation, there is any guarantee that you can hand select your representation.

The same public defender could have quit her job and joined a private practice and there would still be a paper trail terminating her relationships with current clients.

I've watched the same interviews with lawyers that many others have and yet our own verified lawyers have indicated that given they don't know the subtle nuances of this situation, they don't know if it's a conflict or not so I'm uncertain how those of us without legal background can be so sure.

 

[CSIDreamer]

There is no right to have the very very very best lawyer, the requirement is that they have the right to representation by counsel. Counsel needs to fall a lot shorter than "not the very best" in order for "ineffective assistance of counsel" to be an issue. IMO.

I agree. He is required to be assigned qualified counsel. In this horrific case, I'm fairly certain AT is the ONLY qualified counsel currently in the pool in that area.

I'm still not convinced there is a conflict. It isn’t like her previous clients and Kohberger are going to be testifying against EACH OTHER.

When I think about it in my decidedly non lawyer head, I'm not even sure the parents of any of the 4 should be/need to be called to testify during the trial. It seems none of them knew him, so what could they possibly testify about?

Of course, the sentencing phase and victim impact statements are a different matter.

Everything all JMO.

 

[Sundog]

How does he even know what is going on? Isn’t he restricted from media, internet etc? Asking as I do not know.

Possibly informed from parents when they talk over the phone, or his attorney has briefed him on what is going on so that he doesn't hear about the controversy first from the media or other inmates.

 

[CGray123]

If this is a DP case do all 4 families have to agree that BK get the death penalty for it to happen?

This decision is solely the prosecutor's to make. As victims, the families must be informed and they have a right to be heard, but they don't get a vote or a veto. The decision is constrained by statutory criteria, but almost all murder cases meet the criteria so I can't tell you how the DAs make these decisions as to which murderers get LWOP and which get death. That may be a Constitutional problem for Idaho, down the road - as to sentencing not conviction.

 

[Moriarty]

As our attorneys have pointed out, a conflict involving one attorney in the PD office could be imputed to all, requiring the appointment of outside counsel. However, a client can waive the imputed conflict and continue to be represented by the organization. Nothing is ever simple in this area, it seems. Here's the Idaho rule:

"RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless...

EXCEPT (and there always seems to be at least one exception in these rules and codes!), the Supreme Court of Idaho has ruled that Public Defenders offices are not firms within the understanding of 1.10 of the code, since they are not for profit nor financial endeavours. As I'm sure has already been stated here somewhere, possible COI imputation to an entire public defender's office is performed on a case by case need, and there must be clear concurrent conflict of interest with other lawyers in the PD office. With the appointment of a conflict defender to replace AT, there is no concurrent COI, IMO.

The case that set this standard is itself interesting in light of BK: a man convicted of murdering his wife claimed after the trial his PD and the entire PD office had a conflict of interest because someone in that office had represented the mother of the victim. The mother's case was a civil matter seeking the life insurance of her deceased/murdered daughter and depended on finding the man guilty as the slayer. That case appears to have far more conflict of interest possibility than BK and AT, yet the courts found there was none because the man himself admitted he received an adequate defense.