A new gag order in the Idaho murders case effectively silences victims' families

• A judge in the Idaho murders case expanded her gag order to include lawyers for victims' families.
• The order previously only applied to prosecutors and the defense attorney.

The Idaho judge overseeing the case against Bryan Kohberger, the suspect accused of fatally stabbing four University of Idaho students last year, expanded her gag order on Wednesday, forbidding attorneys representing victims, victims' families, and witnesses from speaking publicly about the case.

Kohberger, 28, faces four first-degree murder charges in the deaths of Kaylee Goncalves, 21, Madison Mogen, 21, Xana Kernodle, 20, and Ethan Chapin, 20. Attorneys for the students' families have been outspoken about the case, responding to media inquiries, issuing statements, and even weighing in on major developments like Kohberger's arrest and the release of police documents.

But Judge Megan Marshall's newly amended gag order bars "any attorney representing a witness, victim, or victim's family" from making any comments about the case that go beyond quoting or referring to official public records. The order had previously only applied to prosecutors and Kohberger's defense attorney. The attorneys are now not even permitted to speak publicly about the characters of the victims.

Though the order does not explicitly bar a victim or a victim's relative from speaking publicly about the case, some relatives of the victims have relied on their attorneys as spokespeople, using them to navigate the media frenzy on their behalves.

Experts told Insider that judges across the country have been increasingly liberal with issuing gag orders in criminal cases, a practice some argue undermines attorneys' freedom of speech and shields the criminal justice system from public scrutiny. Margaret Tarkington, a law professor at Indiana University who specializes in the First Amendment rights of lawyers, told Insider the judge in the Kohberger case was treading in "murky waters" with the inclusion of the victims' attorneys.

"I think there's a very solid argument that it would be unconstitutional to prohibit victims from making statements," Tarkington said. "That undermines this whole right to public access to criminal proceedings, which is foundational in the US justice system — this idea that we will not have secret criminal proceedings."

While gag orders often prohibit prosecutors and defense attorneys from speaking about their cases, it's unclear how common it is for gag orders to target victims and their families.

Ken Paulson, the director of the Free Speech Center at Middle Tennessee State University, told Insider that while the practice was likely "not unprecedented," it would be hard to justify in this case.

"It's difficult to understand why the lawyers for the victims' families should be deprived of their free speech rights, particularly in a case in which the details of the crime and identity of the accused are universally known," Paulson said.

The gag order also carries implications for the news media attempting to cover the Idaho murders, according to David Heller, deputy director of the Media Law Resource Center.

"While this order doesn't gag the press directly it does so more subtlety by silencing all the sources of information about the case — including, most broadly, the victims' representatives," Heller told Insider. "A fair trial is important, but so too is vigorous press scrutiny of court proceedings."

He added that it's also uncommon to issue gag orders before disputes over fair trial issues arise.

Jon Bruschke, a professor at California State University, Fullerton, who has studied pretrial publicity, told Insider research shows gag orders are often ineffective. The vast majority of criminal defendants who go to trial are convicted with or without the protection of a gag order.

Much of the pretrial publicity in a criminal case comes months or even years before the trial begins, Bruschke said. In Kohberger's case, his next hearing won't occur for another five months, and a trial could take even longer to begin.

"Just imagine: you have to sit through a trial that's gonna be six to nine months long, listening to expert after expert, and forensic specialists, and science, and a bunch of statistics you don't understand. How likely is it that what's really gonna tip your decision in the end is something you saw on the news three months before the trial started?" Bruschke said. "Human memory isn't that good."