Bryan Kohberger attorneys want indictment dismissed. It’s an ‘uphill battle,’ experts say

A motion to dismiss the indictment that accuses Bryan Kohberger of murdering four University of Idaho students, filed last week, would have far-reaching implications for the way grand juries indict people in Idaho if it succeeds, two retired Idaho Supreme Court justices told the Idaho Statesman.

Kohberger’s defense attorneys argued in the motion posted Thursday that grand jurors were incorrectly given a lower than necessary standard of proof to indict him. The state court system announced in May that the grand jury for the case indicted him with four counts of first-degree murder and one count of felony burglary in connection with the fatal stabbings in November. At the time, Kohberger was a graduate student in Pullman, Washington, roughly 9 miles from Moscow, where the killings took place .

The victims were U of I seniors Madison Mogen and Kaylee Goncalves, both 21, as well as junior Xana Kernodle and freshman Ethan Chapin, both 20. Prosecutors plan to seek the death penalty against Kohberger.

Jay Logsdon, chief deputy of litigation for the Kootenai County public defender, said in the motion that the Idaho Constitution and state law say a grand jury’s standard of proof should be beyond a reasonable doubt.

If Kohberger’s defense team succeeds in the motion, retired Idaho Supreme Court Chief Justice Jim Jones told the Statesman in an email, they would “overturn longstanding Idaho law regarding the standard that must be met to support a grand jury indictment” – making the new standard beyond a reasonable doubt, not the current, lower standard of probable cause.

But Jones said it’s unlikely Kohberger’s attorneys will win.

“It’s really hard to flub a grand jury,” he said in a phone interview. “There’s not much you can do to screw up the process. I don’t think this has any chance of success.”

Logsdon argued that an Idaho statute states, “The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.”

Former Attorney General David Leroy, now a Boise criminal defense lawyer, agreed with Logsdon’s interpretation. “It’s a quirky situation that has lain undetected in Idaho criminal procedure for more than a century,” he told the Statesman.

Joel Horton, a retired Supreme Court justice, told the Statesman that the statute, which does not use the phrase “reasonable doubt,” is “ambiguous.” The state constitution doesn’t offer much clarity about the standard of proof issue either, he said.

Horton said the motion will be an “uphill battle” to win. A successful ruling could essentially result in the end of grand juries in Idaho without new legislation, he said, because it would make it more difficult to charge someone through that process and require the presentation of more evidence.

Even Logsdon acknowledged that succeeding on the motion would be a challenge.

“The defense recognizes that the whole of modern jurisprudence on this issue is against it, as well as at least one founding father of this state,” he said in the motion.

But Logsdon framed the motion as something that would help others, too, by overturning a “tragic and unconstitutional” misinterpretation of the grand jury indictment standard in Idaho.

“Mr. Kohberger is asking this court to recognize the long string of error that led us here and give back the people of this state the protections they are owed,” he said.

Jones sees it as a more self-serving tactic.

“I think they are looking for some kind of Hail Mary thing,” he said. “They’ve already got a tough job.”

Second District Judge John Judge will hear the motion on Aug. 18. That day, he will also hear a defense motion to compel discovery that seeks more information from prosecutors about the DNA techniques used to find Kohberger, as well as a motion in which the defense asks to pause Kohberger’s case because of issues with convening grand jurors. The defense addresses its rationale for the third motion in a sealed affidavit, but not publicly.