Kohberger lawyer wants the public to see request for the judge to rethink dismissing charges

In a capital murder case that has been marked by secrecy and media restrictions, a lawyer for accused Idaho college killer Bryan Kohberger is now asking the judge to make public their arguments that he should rethink his decision to deny their ask to toss out the charges.

"Mr. Kohberger acknowledges the right of the public to be fully informed of the issues," his lawyer wrote in a new filing posted to the docket Tuesday and filed on Friday.

Kohberger's defense had previously made two different attempts to get the indictment against him dismissed. In one, they argued that the grand jury was given inaccurate instructions -- that they used the wrong standard of proof. In the other, they argued that prosecutors withheld evidence that might aid Kohberger in defending himself, and biased the grand jury.

The judge denied both in mid-December. Just before Christmas, Kohberger's team asked the judge to reconsider that decision – filing a request under seal.

Kohberger's high-profile case has largely been veiled in secrecy due to a strict non-dissemination or so-called "gag" order in place. The defense has repeatedly criticized some media portrayals of their client, and the judge himself has chastised the media for what he called "disappointing" behavior filming proceedings by some members of the press. Both Kohberger's defense and prosecutors leading the case against him have supported limiting cameras in the courtroom – or even banning them entirely.

Now, Kohberger's lawyer wants the public to know where they stand, at least on this particular matter of asking the judge to rethink his decision to dismiss the charges.

"Capital case litigation is largely a matter of creating or avoiding as many appellate issues as possible. The prosecution wants to avoid them, the defense wants to create them," said Matt Murphy, a former prosecutor in Orange County, California and ABC News legal contributor.

"The defense has already made their position clear on the trial record. That properly preserved the issue for appeal review," Murphy added. "'Unsealing' it now just opens it up for the public. This has the twin dangers of poisoning prospective jurors, or running afoul of the Court's desire not to try the case in the media."

PHOTO: Bryan Kohberger enters the courtroom for a hearing on Aug. 18, 2023 in Moscow, Idaho. Kohberger is accused of killing four University of Idaho students in Nov. 2022.  (August Frank-Pool/Getty Images, FILE)
PHOTO: Bryan Kohberger enters the courtroom for a hearing on Aug. 18, 2023 in Moscow, Idaho. Kohberger is accused of killing four University of Idaho students in Nov. 2022. (August Frank-Pool/Getty Images, FILE)

In their new filing, Kohberger's lawyer says they only asked for those particular filings to be sealed in the first place "solely" because prosecutors wanted it -- and they were on deadline to file the motion, so they acquiesced.

They say their client "has a right" for the relevant criminal rule "to apply as it is written rather than disadvantage him with items remaining sealed that are not within the scope" of that rule.

Arguments on Kohberger's requests for the judge to reconsider his decision not to toss out the charges are set to be heard in pretrial hearings on Jan. 26.

(MORE: University of Idaho murders: The timeline of events)

Prosecutors allege that in the early morning hours of Nov. 13, 2022, Kohberger, a criminology Ph.D. student at nearby Washington State University, broke into an off-campus home and stabbed four University of Idaho students to death: Ethan Chapin, 20; Madison Mogen, 21; Xana Kernodle, 20, and Kaylee Goncalves, 21.

After a six-week hunt, police zeroed in on Kohberger as the suspect, arresting him in December 2022 at his family's home in Pennsylvania. He was indicted in May and charged with four counts of first-degree murder and one count of burglary. At his arraignment, he declined to offer a plea, so the judge entered a not-guilty plea on his behalf.

Kohberger could face the death penalty, if convicted.

His lawyers have said their client wasn't in the home where the homicides occurred and was driving around alone that night.

In August, Kohberger waived his right to a speedy trial, indefinitely delaying what was supposed to be an Oct. 2 start date.

A new trial date has not been set.

Kohberger lawyer wants the public to see request for the judge to rethink dismissing charges originally appeared on abcnews.go.com