Moscow homicides case attorneys serving subpoenas. How many the public may never know

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MOSCOW Idaho Statesman — Attorneys prosecuting and defending Bryan Kohberger have filed subpoenas requiring documents be turned over and witnesses testify in the Moscow student homicides case. But the public is not privy to where the legal orders were issued and what evidence they’ve unearthed — at least not yet.
So far, at least one witness and one of Kohberger’s former employers have been served with subpoenas, according to court and public records obtained by the Idaho Statesman. The court-issued legal demand compels the recipient to follow the order or risk contempt of court, which can entail jail and fines.
In January, the eastern Pennsylvania school district that Kohberger attended, and where he later worked as a weekend security officer, received a subpoena for his academic and personnel records, as the Statesman previously reported. It remains unclear whether Kohberger’s defense or the prosecution sought the records, and administrators at the Pleasant Valley School District haven’t responded to several requests for comment from the Statesman dating to February.
Kohberger, 28, is charged with four counts of first-degree murder and one count of felony burglary in the November stabbing deaths of four University of Idaho students at an off-campus rental home in Moscow. The victims were seniors Kaylee Goncalves and Madison Mogen, each 21, junior Xana Kernodle, 20, and freshman Ethan Chapin, 20.
In April, Kohberger’s attorneys had a witness subpoena served in Nevada to one of the two roommates who went unharmed in the knife attack, court records showed. In filing for the demand, Kohberger’s public defenders asserted the surviving roommate has knowledge that helps disprove their client’s guilt, and compelled her to show up next month in Idaho for Kohberger’s preliminary hearing.
The roommate’s attorney challenged the subpoena in court before reaching a compromise with Kohberger’s defense that allowed her client to avoid traveling to Moscow, the Statesman also previously reported. The roommate agreed to an interview with Kohberger’s attorneys in northwest Nevada where she lives, and the subpoena was voided.
But it’s likely that attorneys on both sides of the Moscow homicide case have served a number of other subpoenas as they build their respective cases, legal experts told the Statesman.
“Subpoenas can cast a very, very, very wide net, and you can go on a fishing expedition,” Edwina Elcox, a Boise-based criminal defense attorney, said in a phone interview. “Theoretically, there could be a lot of subpoenas issued in this case because of all of the digital evidence and social media platforms at issue.”
Idaho allows attorneys to obtain subpoenas without specifying where they’ll be served. Only the judge in the case or a clerk of the court may issue the legal demand — or a certificate to prompt a subpoena when it’s issued in another state, like those known about in the Kohberger case and served in Pennsylvania and Nevada.
Under Idaho law, however, attorneys can request a subpoena without identifying the recipient and have it signed by a clerk. Like a blank check, the attorney must add the recipient’s name before it is served, per Idaho code.
“There’s no explanation when you are getting subpoenas issued,” Elcox said. “There’s nobody looking over your shoulder, a checks and balances: ‘What and who and why?’ You say, ‘I need these subpoenas issued, please and thank you,’ and you’re on your way.”
Attorneys also may seek the issuance of subpoenas in closed-door proceedings held with a judge when dealing with sensitive information. The public and members of the media are not allowed to be present, or in most circumstances even know that such a hearing took place.
But unless issued in the closed-door setting or sealed by a judge, subpoenas are subject to disclosure in public records requests. The Idaho Public Records Act does not lend a specific exemption for unsealed subpoenas.
Magistrate Judge Megan Marshall of the 2nd Judicial District Court in Latah County is presiding over the Kohberger case. She partially denied a Statesman records request for all subpoena-related filings from either the Latah County Prosecutor’s Office or Kohberger’s defense, citing those subpoenas issued in closed-door proceedings, and out-of-state witness filings, like the one the defense obtained for the surviving roommate.
Marshall granted access to all other subpoena records that have been “returned and filed” in the case, which is when they become available to the public. No records were provided with her response.
The subpoena returns also are posted on the state’s courts website, Marshall wrote, and Tonya Dodge, Latah County’s clerk of the court, confirmed to the Statesman by email. The website houses filings available to the public for high-profile cases such as Kohberger’s.
But Idaho law does not require or specify when attorneys must file such subpoena returns with the court, thereby releasing the information to the public. In fact, it’s not uncommon that these filings aren’t submitted at all unless an issue arises, like a problematic witness, Elcox said.
Through the discovery process, the prosecution’s subpoena records should otherwise be available to the defense.
“They don’t get to play hide the ball with the defense,” Elcox said. “So the defense is getting the information anyway, and it’s more of a way to strategically keep it out of the public eye, at least for the time being.”
Of the nearly 150 court filings listed in the Kohberger case to date on the Idaho courts website, no subpoena records are currently available.
“None have been returned to the court at this time,” Dodge said.
Meanwhile this week, Kohberger’s legal team added another death penalty-qualified public defender on Monday, a court filing showed. Elisa Massoth, a criminal defense attorney based in Payette County, joined his defense as co-counsel to Anne Taylor and Jay Logsdon, both of the Kootenai County Public Defender’s Office.
Massoth also is co-counsel in the defense of John Cody Hart, the 28-year-old man charged with the first-degree murders of a couple who owned a hotel in New Meadows and were fatally shot in October. Prosecutors in the case have said they are seeking the death penalty.
Kohberger’s case qualifies for the death penalty, but prosecutors have not yet said if they will seek it.
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Source: eastidahonews.com