I don't think the Response to Discovery released today by the Prosecution addressed that? You could be thinking of LE's Application for Premises Search Warrant and the Judge's comments in that Warrant (from12/29/22)?
ID - 4 Univ of Idaho Students Murdered - Bryan Kohberger Arrested - Moscow # 70
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mooseandcoffee
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I don't know all of the rules, for certain. Clients were able to ask about conflicts and attorneys would as well. I would say that representing victims of the case in the past certainly has the image of a conflict of interest, if nothing else.
mooseandcoffee
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Not necessarily. In my husband's office, there is a head PD who would assign the big cases.
I'm not sure that is right in this case, though it may well be for others. Dna is also circumstantial evidence and the prosecution must infer from its presence on the sheath that BK was in the house at the time the crime was committed. MOO
@gliving, I wanted to add that it took me an extraordinary amount of time to get my head around the search warrant docs and what they were likely saying re the sheath dna and probable cause. Actually pulling the quotes and posting here was really clarifying so glad for the prompt! (go play now IYW
).
maskedwoman
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Thank you! It is excellent and the ending of this part will really make you think. MOOoooo
I know it won't be out for years, but I am looking forward to reading Howard Blum's book on this case.
I don't think of the issue of changing counsel over BK's objection itself as the sole grounds for a successful appeal. Rather, I see it as part of a narrative about how badly he was represented. The narrative would start with the ACLU's argument in Tucker v State of Idaho: that the state PD system is so starved for resources that its lawyers cannot provide Constitutionally competent representation. It would proceed through the litany of second guessing based on 20/20 hindsight that is nearly always possible in these cases, and include the unnecessary removal of AT under media pressure as a dramatic point of emphasis.Appealing Conviction on Claim of Not Getting "The Top" Counsel?
@wary
If you have not already seen post I made ~ 30 min. ago, pls read.
Q 1. Have done no research, but not aware of crim convictions being overturned on def't not getting "The Top" counsel.
[[[ETA
Just think, if not getting "the top" counsel "in the state was basis for overturning conviction, wouldn't (nearly) all convicted def'ts win on appeal?
Then go to trial again, & if convicted, appeal again on same basis? Or as our cohort @Laughing says; Lather. Rinse Repeat.
Not all def'ts get "the top" counsel.
Also quite subjective. If the accused is convicted, is that automatically reversible error, if he did not have "the top" counsel????????????]]]
"Ineffective Assistance of Counsel" is the basic standard for an appellate ct. to overturn a crim. conviction & order a new trial. Read my earlier post.
Q2. Yes, per SCOTUS.
" To prove they received ineffective assistance, a criminal defendant must show two things:
"Deficient performance by counsel."
"Resulting prejudice, in that but for the deficient performance, there is a “reasonable probability” that the result of the proceeding would have differed."
"The foregoing test was set forth in Strickland v. Washington (1984)"
Ineffective assistance of counsel - Wikipedia
en.wikipedia.org
Of course they have and I noticed during the last interview with the mother, there seemed to be two goals, discredit BK’s lawyer and pump for undisclosed information.
kittythehare
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paywalled
Bryan Kohberger defense attorney represented Maddie Mogen's dad
The lawyer representing the only suspect in the brutal slayings of four University of Idaho students in the town of Moscow in November has multiple ties to the victims' parents.
- Bryan Kohberger's defense attorney has multiple ties to the victims' families
- His lawyer is Anne Taylor, the chief public defender for Kootenai County
- Taylor was linked to the cases of Xana Kenodle and Madison Mogen's parents
A possible conflict of interest ?
What does everyone think ?
Imo.
Victims' Families. Death Penalty Sentencing?
FAMILIES
Under ID. statute, victims are "afforded the opportunity to communicate with the prosecution in criminal... offenses, and be advised of any proposed plea agreement..."*
So the families may, individually or collectively, communicate w the prosecution. And they may have varying beliefs about the DP.
PROSECUTOR
The prosecution is not legally bound to comply w families' preferences. In some cases, one family's beliefs about the DP (or other possible sentences) may conflict w another family's beliefs, and a prosecutor could not accommodate all. Nor could a judge in making the final ruling re sentence.
But practically speaking, as an elected official, the prosecution will give families' input some weight.**
^ imo ^ As always, welcoming clarification or correction, esp'ly from our legal professionals.
______________________________________________
ID. statute
"19-5306. RIGHTS OF VICTIM DURING INVESTIGATION, PROSECUTION, AND DISPOSITION OF THE CRIME. (1) Each victim of a criminal or juvenile offense shall be:..."
"(e) Heard, upon request, at all criminal justice proceedings considering a plea of guilty, sentencing, incarceration, placing on probation or release of the defendant unless manifest injustice would result;
"(f) Afforded the opportunity to communicate with the prosecution in criminal or juvenile offenses, and be advised of any proposed plea agreement by the prosecuting attorney prior to entering into a plea agreement in criminal or juvenile offenses involving crimes of violence, sex crimes or crimes against children;
"(h) Consulted by the presentence investigator during the preparation of the presentence report and have included in that report a statement of the impact which the defendant’s criminal conduct had upon the victim and shall be allowed to read, prior to the sentencing hearing, the presentence report relating to the crime..."
"(5) As used in this section:
(a) "Victim" is an individual who suffers direct or threatened physical, financial or emotional harm as the result of the commission of a crime or juvenile offense;..."
legislature.idaho.gov
** "The elected Prosecuting Attorney defends or prosecutes actions, applications, or motions in the District Court or Magistrate's division in which the People, the State or the County is a party."
See Prosecutor tab.
@Ccging Short answer: No, the four families here do not "have to agree" on DP (or any issue) "for it to happen."
FAMILIES
Under ID. statute, victims are "afforded the opportunity to communicate with the prosecution in criminal... offenses, and be advised of any proposed plea agreement..."*
So the families may, individually or collectively, communicate w the prosecution. And they may have varying beliefs about the DP.
PROSECUTOR
The prosecution is not legally bound to comply w families' preferences. In some cases, one family's beliefs about the DP (or other possible sentences) may conflict w another family's beliefs, and a prosecutor could not accommodate all. Nor could a judge in making the final ruling re sentence.
But practically speaking, as an elected official, the prosecution will give families' input some weight.**
^ imo ^ As always, welcoming clarification or correction, esp'ly from our legal professionals.
______________________________________________
ID. statute
"19-5306. RIGHTS OF VICTIM DURING INVESTIGATION, PROSECUTION, AND DISPOSITION OF THE CRIME. (1) Each victim of a criminal or juvenile offense shall be:..."
"(e) Heard, upon request, at all criminal justice proceedings considering a plea of guilty, sentencing, incarceration, placing on probation or release of the defendant unless manifest injustice would result;
"(f) Afforded the opportunity to communicate with the prosecution in criminal or juvenile offenses, and be advised of any proposed plea agreement by the prosecuting attorney prior to entering into a plea agreement in criminal or juvenile offenses involving crimes of violence, sex crimes or crimes against children;
"(h) Consulted by the presentence investigator during the preparation of the presentence report and have included in that report a statement of the impact which the defendant’s criminal conduct had upon the victim and shall be allowed to read, prior to the sentencing hearing, the presentence report relating to the crime..."
"(5) As used in this section:
(a) "Victim" is an individual who suffers direct or threatened physical, financial or emotional harm as the result of the commission of a crime or juvenile offense;..."
Section 19-5306 – Idaho State Legislature
legislature.idaho.gov
** "The elected Prosecuting Attorney defends or prosecutes actions, applications, or motions in the District Court or Magistrate's division in which the People, the State or the County is a party."
See Prosecutor tab.
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WingsOverTX
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The last thread & this one have addressed the COI issue pretty thoroughly. A lot of great defense of varying viewpoints by our fellow sleuthers has been shared!Bryan Kohberger defense attorney represented Maddie Mogen's dad
The lawyer representing the only suspect in the brutal slayings of four University of Idaho students in the town of Moscow in November has multiple ties to the victims' parents.www.dailymail.co.uk
- Bryan Kohberger's defense attorney has multiple ties to the victims' families
- His lawyer is Anne Taylor, the chief public defender for Kootenai County
- Taylor was linked to the cases of Xana Kenodle and Madison Mogen's parents
A possible conflict of interest ?
What does everyone think ?
Imo.
I'm very curious what the judge will decide if the issue rises to that level, which I anticipate it will.
Such a decision will reveal a lot about Idaho statutes & how they are interpreted in a high-profile case with potential, but no guarantee, to have the status quo become an issue on appeal after conviction.
Just my 2 cents
Bbm
Exactly.
mooseandcoffee
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Do the families actually have to agree? They aren't filing charges--the DA/prosecutor is. They might consult with the families, but they don't really have a say I don't think.
IF therre is an actual conflict of interest - not a potential or hypothetical conflict that creates bad look in the public eye, or an uncomfortable ethical situation for a conscientious attorney; and
IF BK did not or can not waive the conflict; and
IF the conflict demonstrably results in actual substandard representation that likely contributed to BK's conviction, then BK could argue that AT's representation denied him his Constitutional right to effective assistance of counsel.
For me, those are big "ifs." I think AT will stay on the case, and there will be no COI. Others see it differently, and that's OK.
One attorney has declared that CK (CN) could seek to disqualify AT from representing BK. I'm not sure that's true, since the court has approved substitution of counsel in her case. But assuming CK is hoping for a successful prosecution, conviction and death sentence for BK, trying to disqualify AT could - perversely - create a defense issue damaging to the prosecution.
I've come around to @Cassady 's POV to a limited extent. Here's the hypothetical that could blow things up if it's real. This is pure speculation on my part:
Let's imagine that from the beginning, CK (or another of AT's parent clients) has been interviewed several times by investigators who were looking for drug related motives for XK's murder. She has led them to believe that neither she nor her daughter has been threatened by dealers. However, in the course of AT's representation she has made a statement to the contrary. AT would be constrained to keep this statement confidential even though it would help BK's SODDI defense. That would be a real conflict of interest that could significantly affect the outcome of BK's trial.
I can think of no other scenario in which AT would have a real COI. If CK were to seek AT's disqualification, BK and his supporters would certainly suggest that CK's motive was to conceal the truth about an alternate perpetrator in order to secure BK's conviction. That proceeding could turn into a PR nightmare and perhaps a legal problem for the DA - not to mention AT if she had not withdrawn from the case before CK filed her motion.
All this is imaginary and I don't believe there's any truth to it. The PD's intake process for BK would have included a discussion of this potential conflict issue, and AT would know what CK did and did not say in confidence. Yes, this assumes that the PD has capital defense standards and procedures in place and uses them, but I have no reason to assume otherwise.
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@mooseandcoffee
Families do not have to agree re DP. Prosecutor can seek it or not, is not obligated to comply w families' beliefs or preferences.
@mooseandcoffee Like you post says, prosecutor files the crim charges.
What is "families having a say"???
1. If it's an opportunity to communicate w prosecutor, yes, can express their feelings & beliefs to proecutor. And after conviction, victim impact stmts at sentencing phase.
2. If it's families actually deciding whether prosecutor should or should not seek death penalty, NO, families do not "get a say" on that.
FYI, ID Victims' Rights. Citations and Quotations.
ID - 4 Univ of Idaho Students Murdered - Bryan Kohberger Arrested - Moscow # 70
I believe that is addressed in the Discovery document that was released today where LE said the PCW is strong enough to stand alone wo the knife sheath.jmo I don't think the Response to Discovery released today by the Prosecution addressed that? You could be thinking of LE's Application for...
www.websleuths.com
CSIDreamer
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I'm guessing if a family member disagrees with the DP (if the prosecutor files for it) then they can probably voice their opinion in the victim statement phase? JMHO@mooseandcoffee
Families do not have to agree re DP. Prosecutor can seek it or not, is not obligated to comply w families' beliefs or preferences.
@mooseandcoffee Like you post says, prosecutor files the crim charges.
What is "families having a say"???
1. If it's an opportunity to communicate w prosecutor, yes, can express their feelings & beliefs to proecutor. And after conviction, victim impact stmts at sentencing phase.
2. If it's families actually deciding whether prosecutor should or should not seek death penalty, NO, families do not "get a say" on that.
FYI, ID Victims' Rights. Citations and Quotations.
ID - 4 Univ of Idaho Students Murdered - Bryan Kohberger Arrested - Moscow # 70
I believe that is addressed in the Discovery document that was released today where LE said the PCW is strong enough to stand alone wo the knife sheath.jmo I don't think the Response to Discovery released today by the Prosecution addressed that? You could be thinking of LE's Application for...
I'm Nobody
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MOO. It's a wait and see world--COI and DP
Pre-trial pre-conviction I'm hopeful that a change of venue happens so this COI "ineffective counsel" chip is taken away from BK and image in the public (jury pool). My fear is that there may be a chip on someone's shoulder to prove they can handle this huge national interest case which could actually mess it up, reasons stated by @CGray123 and others. Besides the PD's potential use of a drug-related motive, there is the alleged stalking of XK which her mother may have discussed/mentioned to AT. It's my belief that size matters here. The PD's office seems too small to handle family cases that oppose each other. Think about that in any other legal situations, divorce? your lawyer drops you to rep your spouse. Dom violence? burglary? When would that be okay? I get AT is the only DP qualified PD. My first thought, AT was emergency appointed and they'll appoint someone else, but there is no someone else qualified there. So why are they keeping this case? I want a Fair trial, no chips on either side. MOO
Post-conviction I'm hopeful Idaho swaps the killer to another state where his punishment doesn't take decades due to Idaho's lack of drugs for death penalty.
Our constitution states where trials should take place, not where post-conviction punishments should happen.
"In practice, it is prison bureaucrats — not judges, not legislatures, and not political communities — who choose where punishment may take place." [pg 1872 prisoner trade]
harvardlawreview.org
Pre-trial pre-conviction I'm hopeful that a change of venue happens so this COI "ineffective counsel" chip is taken away from BK and image in the public (jury pool). My fear is that there may be a chip on someone's shoulder to prove they can handle this huge national interest case which could actually mess it up, reasons stated by @CGray123 and others. Besides the PD's potential use of a drug-related motive, there is the alleged stalking of XK which her mother may have discussed/mentioned to AT. It's my belief that size matters here. The PD's office seems too small to handle family cases that oppose each other. Think about that in any other legal situations, divorce? your lawyer drops you to rep your spouse. Dom violence? burglary? When would that be okay? I get AT is the only DP qualified PD. My first thought, AT was emergency appointed and they'll appoint someone else, but there is no someone else qualified there. So why are they keeping this case? I want a Fair trial, no chips on either side. MOO
Post-conviction I'm hopeful Idaho swaps the killer to another state where his punishment doesn't take decades due to Idaho's lack of drugs for death penalty.
Our constitution states where trials should take place, not where post-conviction punishments should happen.
"In practice, it is prison bureaucrats — not judges, not legislatures, and not political communities — who choose where punishment may take place." [pg 1872 prisoner trade]
Article III Judicial Branch Section 2 Justiciability Clause 3 Trials
- The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed;
The Prisoner Trade - Harvard Law Review
It is tempting to assume that the United States has fifty distinct state prison systems. For a time, that assumption was correct. In the...
harvardlawreview.org
Maybe. I guess it depends when in the process you mean. I'm not a lawyer but...
ICJI 1700 Death Penalty Sentencing Instructions - Idaho Supreme Court https://isc.idaho.gov/jury/criminal/1700/DeathPenaltySentencingInst-All.pdf
Jury is told (bold added by me)
Victims have the right to personally address you by making a victim impact statement, which is a statement concerning the victim’s personal characteristics and the emotional impact of the murder. A victim impact statement is not made under oath and is not subject to cross-examination. A victim may not make any statements that are characterizations or opinions about the crime, the defendant, or the appropriate sentence, and you should disregard any such comments.
JMO
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