This article was shared from the Idaho Statesman, written by Kevin Fixler
Up until taking his case, Bryan Kohberger’s court-appointed public defender was actively representing a parent of one of the four Moscow stabbing victims her client is accused of killing, court records show.
Anne Taylor, chief of the Kootenai County Public Defender’s Office, filed an attorney withdrawal notice in Kootenai County Court for the parent on Jan. 5 — the same day Kohberger made his first court appearance in Idaho in Latah County. The parent previously was sentenced on unrelated misdemeanor charges.
In that case, as well as another where the parent faces two felony charges, the public defender’s office withdrew in favor of a local criminal defense attorney unrelated to Taylor or the county’s public defender’s office. The new attorney is listed as the “conflict public defender” in court documents.
The Idaho Statesman is not naming the parent with connections to Taylor. The only reason these criminal charges are being reported is to establish the connection between Taylor and family of the homicide victims.
Legal experts said the new detail in the high-profile case raised conflict-of-interest questions, when presented with the information by the Idaho Statesman.
“Anytime a former client is involved in a current representation, a lawyer should evaluate any potential conflicts,” Brad Andrews, former counsel for the Idaho State Bar, told the Statesman by phone. “Conflicts are very factually based, and so the lawyer decides whether the lawyer has a conflict.”
The four stabbing victims were U of I seniors Madison Mogen, 21, and Kaylee Goncalves, 21; junior Xana Kernodle, 20; and freshman Ethan Chapin, 20. The off-campus rental house where they died is located about 9 miles east of Washington State University in Pullman, where Kohberger was a Ph.D. student.
Kohberger, 28, was arrested in eastern Pennsylvania at his parent’s house on Dec. 30, extradited to Idaho and charged with four counts of first-degree murder, as well as a count of felony burglary.
Taylor is one of just 13 public defenders in Idaho approved by the state’s public defense commission to lead a capital punishment case. She’s also the only one in all of North Idaho. Prosecutors have yet to indicate whether they will seek the death penalty in Kohberger’s case.
Since 2000, the county public defender’s office has represented the homicide victim’s parent off and on in several cases, court records showed. Since Taylor took over, her office has defended the parent in four cases, including a misdemeanor from August 2017, for which Taylor took over as the attorney of record in September 2022.
Taylor’s office also has represented another parent of a Moscow homicides victim in four criminal cases since she became chief public defender. In two cases, online court records name Taylor as an “inactive” attorney.
Taylor, 57, has led Kootenai County’s public defender office since June 2017. She previously worked in the same office from 2004 to 2012, then shifted to private practice before returning to take the helm, according to the Coeur d’Alene Press.
Taylor is an Idaho native and earned her law degree from the University of Idaho in 1998, the Kootenai County-based newspaper reported.
LEGAL EXPERT: POTENTIAL CONFLICT ‘NOT EASY TO ANSWER’
The Idaho State Bar provides direction to attorneys in its Rules of Professional Conduct about conflicts of interest.
“Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client,” its rule on conflicts and current clients reads. “Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person or from the lawyer’s own interests.”
Bob Boruchowitz is a longtime attorney and director of the Defender Initiative at Seattle University’s law school, which aims to improve public defense representation. In an interview with the Statesman, he declined to state whether Taylor’s situation constituted a conflict of interest, instead saying that lawyers should be guided by their state codes, and even consult others in the practice when possible conflicts arise.
“Each lawyer needs to assess the possibility of a conflict with the ethical rule in front of her, and talk with clients,” Boruchowitz said by phone. “A lot of these questions are not easy to answer, and it benefits having multiple people looking at them and sorting through the potential issues.”
Public defenders in Idaho also operate under slightly more relaxed conflict rules because of the nature of the work to ensure needy defendants receive adequate legal representation, per case law established in Idaho v. Severson.
“When I discussed potential conflicts with lawyers, part of my advice was the lawyer should assure they are able to exercise their independent professional judgment,” said Andrews, the retired Idaho State Bar counsel.
Kohberger could receive the death penalty if convicted. Idaho is one of 24 U.S. states that actively maintains capital punishment. Prosecutors have 60 days from the time Kohberger enters a plea to file notice with the court whether they’ll seek the death sentence.
Beyond possible conflicts on their face, Boruchowitz pointed to the typical practice of defense attorneys seeking to speak with victims’ families in the course of a possible sentencing period to obtain their buy-in for a life sentence and bypass the death penalty.
“Certainly effective representation in a capital case, if it’s going to get to the penalty phase, there’s got to be an effort to talk to the family,” Boruchowitz said.
Stephen Gillers, legal ethics professor at NYU’s law school, told the Statesman there’s a practical solution to such a scenario, which he stated is unusual because it happens infrequently.
“There’s a concept called ‘shadow counsel,’ ” Gillers said by phone Monday. “When a lawyer has a conflict that’s relatively minor that a lawyer may wish not to handle — or may not be allowed to handle — the lawyer can ask someone else to do that part of the case.”
It is unclear whether Kohberger is aware of his attorney’s prior connection to the parents of two of the four students he is accused of killing. Previous Statesman requests for an in-person interview with Kohberger through Taylor, and the Latah County Sheriff’s Office, which manages the county jail where he’s being held, did not receive responses.
The Statesman attempted to contact the two parents involved. One did not comment; the other could not be reached.
A gag order issued by 2nd District Court Judge Megan Marshall on Jan. 3, which she expanded last week, restricts Taylor from commenting about Kohberger’s case outside of court filings. Taylor and her office did not respond Monday to email and phone messages from the Statesman seeking comment about their prior representation of the two parents.
Also Monday, a Latah County Court clerk offered no comment to the Statesman about whether Marshall was aware of Taylor’s prior representation before appointing the public defender in the Kohberger case.
Aside from Taylor, a dozen public defenders in Idaho are qualified to lead a capital case. But each of them resides well outside North Idaho.
Another 10 public defenders are qualified to act as co-counsel on a capital case, including two in North Idaho. One is Taylor’s chief deputy of litigation, Jay Logsdon, who is her co-counsel in the Kohberger case. The other is attorney Susie Jensen, the former Bonner County chief public defender. Gov. Brad Little appointed Jensen as a judge in Idaho’s 1st District in November.
Latah County public defender Deb McCormick previously represented Moscow gunman John Lee, who pleaded guilty in 2016 to three counts of murder in exchange for life in prison and to avoid the death penalty. But McCormick is not currently approved to lead or co-counsel a capital case, according to the list of eligible Idaho public defenders updated in December.
Kohberger and Taylor are scheduled to be back in Latah County Court for his preliminary hearing starting at 9 a.m. Pacific on June 26.
This story was originally published January 23, 2023 7:11 PM.
