Kohberger principally claims he received ineffective assistance of counsel, meaning his attorneys allegedly failed to provide constitutionally adequate representation. That is not the same thing as showing another lawyer might have approached the case differently.
“There are a lot of different ways to go about lawyering,” Gross says. “You have to really show that there was some decision a lawyer made that no objectively reasonable attorney would have made with the information in front of them.”
An ineffective-assistance claim requires a defendant to establish both deficient representation and resulting prejudice. In the guilty-plea context, Idaho courts have held that a defendant must show a reasonable probability that, without counsel’s alleged errors, the defendant would have rejected the plea and gone to trial.
Eric Faddis, founding partner of The Law Offices of Eric Faddis and a former felony prosecutor who now practices criminal defense, says evaluating Kohberger’s claim would require a close examination of how his former attorneys handled the case.
“You want to learn more about what the defense attorney did, why they did it, whether they communicated it to the client and what the client’s response was,” Faddis tells A&E Crime + Investigation.
That could include examining what Kohberger’s lawyers investigated, whether they consulted experts, how they weighed the evidence and whether they gave Kohberger enough information to make an informed decision about the risks and benefits of going to trial.
“The stakes couldn’t be higher,” Faddis says of counseling someone facing a possible death sentence. “It is usually a very emotionally charged situation.”
That creates an unusual tension in Kohberger’s challenge. The plea agreement gave him a substantial benefit by taking the death penalty off the table. But Gross says the enormous pressure established by a possible death sentence can also become relevant when a defendant later alleges coercion.
“The higher the penalty, the more salience it gives somebody’s argument that they felt that they were coerced into offering a plea,” Gross says.
What Would the Court Look At?
Among his claims, Kohberger alleges his former lawyers failed to adequately disclose or review evidence he believes could have helped his defense, including material recovered from the victims’ hands.
A report from the FBI’s Trace Evidence Unit found debris in Chapin’s right hand and Kernodle’s left hand. The two were found only a few feet apart inside the home. According to the report, the debris was examined for hairs microscopically consistent with Kohberger’s head-hair sample, but none were found.
The report was included in a June 6, 2025, filing by Kohberger’s then-attorney Anne Taylor, about a month before he accepted the plea deal. Kohberger now points to that evidence as support for his innocence claim, but the absence of hairs consistent with his sample does not, by itself, establish that the material was exculpatory or that it would have changed the outcome of the case.
Faddis cautions against drawing conclusions from the allegation alone.
“We need to be cautious when evaluating Kohberger’s claims of ineffective assistance here,” he says.
The public doesn’t know everything Kohberger’s attorneys did behind the scenes, including what investigation or expert consultation took place and how individual pieces of evidence factored into their recommendation to accept a plea, Faddis says. Sometimes, an attorney may conclude that a potentially favorable piece of evidence does not outweigh other evidence prosecutors could present at trial.
Those conversations between Kohberger and his former attorneys could become central to his challenge.
But that examination could be complicated by attorney-client confidentiality and privilege. If the case proceeds far enough, Faddis says Kohberger’s former attorneys could potentially be called as witnesses and questioned about what they did, why they did it, what they communicated to Kohberger and under what circumstances.
A judge would then have to determine whether those facts satisfy the requirements of Kohberger’s legal claims.
What Happens If Bryan Kohberger Wins His Request?
Kohberger’s post-conviction case is already shaping up to be lengthy.
Judge Steven Hippler has scheduled a status conference for June 3, 2027, and an evidentiary hearing for June 17, 2027, if needed. The state has sought dismissal of Kohberger’s petition, but the court has not yet ruled on the request.
There is now another dispute that will be heard much sooner. Kohberger’s post-conviction attorneys are seeking to disqualify Hippler from presiding over the case, arguing that the judge’s prior role and statements during sentencing raise concerns about his ability to impartially decide issues in the post-conviction proceeding. A hearing on that issue is scheduled for October 15.
Gross says post-conviction litigation can involve several procedural stages before a court reaches the ultimate merits of a defendant’s allegations.
“This could procedurally, and rightly so, take a bit,” she says.
And even if Kohberger ultimately succeeds, the result would not be freedom, but returning to the position he occupied before he pleaded guilty. That means Kohberger could once again face the original first-degree murder charges—and the death penalty, which prosecutors agreed not to seek as part of the plea deal, could once again be on the table.
“The remedy is you go back where you started,” Gross says.
Kohberger is currently serving four consecutive life sentences without the possibility of parole at the Idaho Maximum Security Institution.
