Episode Details

Bryan Kohberger’s attorneys did not oppose allowing the Associated Press and the coalition of news organizations to intervene for the limited purpose of challenging the nondissemination order, but they strongly opposed what the media ultimately wanted the court to do: eliminate that order. The defense argued that the extraordinary amount of publicity surrounding the murders had already created a serious danger to Kohberger’s ability to receive a fair trial before an impartial jury. His attorneys maintained that the nondissemination order was not a gag order on the press because reporters remained free to investigate the case, attend public proceedings and publish whatever information they independently obtained. Instead, the restrictions applied primarily to attorneys, investigators, law-enforcement personnel and others directly involved in the litigation, preventing them from making potentially prejudicial statements outside the courtroom. Kohberger’s defense argued that statements from lawyers and law enforcement carried particular credibility with the public and therefore had an increased ability to influence prospective jurors. To support that position, the defense presented evidence documenting the enormous volume of media coverage surrounding the case and argued that much of that coverage had already portrayed Kohberger negatively.


The defense therefore urged the court to preserve restrictions on what participants in the case could publicly discuss, arguing that Kohberger’s Sixth Amendment right to a fair trial outweighed the indirect limitations the order placed on the media’s ability to obtain information from those participants. Kohberger’s attorneys also pushed back against the argument that the order represented an unconstitutional prior restraint on the press, emphasizing that the media itself was not prohibited from speaking or publishing. Their concern was that removing the restrictions would encourage additional public commentary from people with inside knowledge of the investigation, increasing the possibility that prospective jurors would encounter information, accusations or interpretations of the evidence before hearing it in court. Judge John Judge ultimately agreed with much of that reasoning and refused to vacate the nondissemination order, although he acknowledged that portions of the existing order were arguably vague or overly broad and replaced it with a narrower version. The ruling preserved restrictions on statements that were substantially likely to materially prejudice the proceedings while allowing the press to continue independently reporting on the case. In effect, Kohberger’s position was that the media could cover the prosecution as aggressively as it wanted, but prosecutors, defense lawyers, police and other participants should not be allowed to litigate the case through the press before a jury was ever selected.



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