A dispute has broken out regarding the Idaho student murders case over a defense survey of potential jurors in Latah County.
The defense was conducting the survey to gather evidence for a potential change-of-venue motion when the judge issued an order barring both sides from contacting jurors.
The defense argued this violated the defendant’s due process rights and that the survey questions were based on publicly reported facts.
While the prosecution claimed the survey violated a sealed order, the defense said it was not distributing information but rather asking about preexisting media influence.
The defense filed a motion to rescind the order so the surveys could continue, arguing it is properly preparing for a venue hearing.
“The late Friday afternoon filing was a strategic action by the State,” defense attorney Anne Taylor wrote.
“Both parties are prohibited from contacting potential jurors about this case, including via third parties, until further order of this Court,” Judge John Judge wrote. “A hearing on this issue will be held as soon as practicable.”
“In order to gather sufficient evidence to support their application, the defense retained an expert who ‘sampled’ the potential juror pool to assess potential bias in Latah County,” New Jersey-based defense attorney David Gelman said. “This was done by way of a telephone survey of 400 residents.”
“The defense is not ‘disclosing’ information,” Taylor wrote. “The defense is asking prospective jurors in the county of Latah as to what information they are aware of that was previously ‘disclosed’ vis-a-vis the press.”
“Two things seem to favor the defense,” Gelman said. “First, the surveys do indeed appear to be about gathering information as opposed to disseminating information. Second, even if the motion to change venue were denied, any potential adverse impact upon the juror pool because of the survey will be not only negligible due to the small number of jurors contacted, but also addressable via voir dire.”
Legal experts said the defense appears to be appropriately gathering information and any survey impact could be addressed in jury selection. A hearing on the issue is pending.
“I highly doubt the defense did anything to run afoul of the court’s order, and I think the defense is absolutely doing its due diligence,” said Edwina Elcox, a Boise-based defense attorney. “The defense made a sound legal argument with respect to what they must establish for a change of venue.”
“I think the defense’s expert backs up the reasoning behind the defense strategy,” Elcox said.
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