Crime Fix with Angenette Levy - 3 New Developments From Bryan Kohberger's Hearing in Idaho Student Murders

Starting point is 00:00:00 Wondery Plus subscribers can binge all episodes of this Law and Crimes series ad-free right now. Join Wondery Plus in the Wondery app, Apple Podcasts, or Spotify. Our duty is to investigate police work. We do that in every case. Brian Koberger back in court. His attorney's fighting to move his trial. And for more access to FBI records that led to Koberger being named a suspect. I have the top moments from his hearing. Thanks for joining me here on Crime Fix. I'm Anjanette Levy. Brian Koberger was back in court and we thought Judge Judge might set a trial date. That didn't happen, but it's now crystal clear the trial is not starting before the spring of 2025,

Starting point is 00:00:44 and that would be the absolute earliest that it would start. Koberger's lawyers want the trial moved out of Latah County. They just don't think that he can get a fair trial because of all of the publicity surrounding this case. And there has been a lot, but not as much with the gag order that's been in place since his arrest. Here's a little of what was said about moving the trial in court. I think we need to address it before a trial setting. It doesn't make sense to set a trial, get right up to it, and then have to have everybody who's under subpoena rescheduled

Starting point is 00:01:17 and have to have the public and the families of everybody disappointed because we're going to reset it at the last minute. So I think we should take care of whether or not the court should change venues sooner rather than later. So we would ask the court to either deny that motion at this time or to set a hearing further down the road and closer to trial. How do you really know if there's some prejudice without trying to see the jury. It's really a catch-22. So there's no decision on whether the trial will be moved. That decision will come much later after

Starting point is 00:01:52 a hearing is held on the issue. The prosecution wants the trial to stay in Latah County. As you know, the defense wants it moved. There was also discussion about the genetic genealogy the FBI used to identify Koberger as a suspect in the murders of Maddie Mogan, Kelly Gonsalves, Ethan Chapin, and Zanna Cronodal. Judge Judge allowed Koberger's lawyers to see some of the material from the FBI, which is unprecedented. Typically, law enforcement does not turn over that material to defense attorneys. But Ann Taylor says she wants more people on her team, specifically her investigators, to be allowed to see that information. Right now, only her genetic genealogy experts can review it.

Starting point is 00:02:35 Their stated reasoning is, quote, to investigate how and when Mr. Koberger was identified as a suspect, end quote. State maintains they don't need access to all of that highly sensitive information to satisfy that purpose that is laid out in the November 28, 2023 letter from the FBI to the state.

Starting point is 00:02:57 So we would ask that one, they be named. If they are granted access, that it be to that letter and that the balance of the materials be protected. Your Honor, I know what letter Ms. Jennings refers to, and I think our experts should have access to the actual materials. That letter is a summary. It's a police summary. Our duty is to investigate police work. We do that in every case and with our heightened duties and a death penalty case, our investigators should have access to the entire record. What I'd like to do

Starting point is 00:03:33 is just get some justification for digging in deeper, if necessary. And I'm not sure it's necessary, but you know, I'm going to keep an open mind about that. So for right now, I would say, let's just get your experts looking at the IGG stuff and exactly what they can read from that. Joining me to discuss the latest twist in this case are two people who've been in the trenches defending clients. Bill Gallagher is a Cincinnati-based defense attorney who's tried and defended 13 death penalty cases. That's right, 13. And Jonna Spilbor is a defense attorney from New York. Thanks to both of you for coming on. Bill, I'll start with you. The defense doesn't think Brian Koberger can get a fair trial in Latah County. It's a county of 40,000 people. The press coverage has been

Starting point is 00:04:32 unprecedented. The defense wants this case moved. The state is saying, look, we think we can try this case here, and we don't even know if there's any prejudice. The judge kind of agrees. How are we going to know that there's any prejudice before we even try to seat a jury? So your thoughts on that? I really think that, I mean, the traditional way is what you try and pick a jury and see if you can. That's normally what most state laws require you to do. But I have seen, especially in high profile cases, at times where people have done surveys in advance of a trial and use those survey results as an indication of what the general population in that jurisdiction might be feeling about a case. And that would be at least a preliminary way to do that. And so that it doesn't further delay the trial.

Starting point is 00:05:20 I'm the defense lawyer. That would be my argument. Why are we all going to show up at the courthouse ready to try a case that's going to take months if two, three, four days into it, we realize we're in the wrong venue. We can't try this here. We're going to have to go somewhere else in the state and then start all over again. That's not really fair to anybody getting ready for such a long and involved trial. So, hey, let's just do a survey. Maybe they can even agree on the questions from both sides to figure out whether or not residents of that area have sort of prejudged this case. And Judge Judge talked about that, you know, the fact that they

Starting point is 00:05:57 could send out the jury questionnaire and evaluate it from there. But are you talking about maybe sending out a survey even before a questionnaire bill? Right. I'm thinking I'm sending, we're not sending it necessarily to prospective jurors. We're going to, we're going to figure a way, I think, to do the same sort of cross section of the community survey that sort of be representative. Lots of universities have, you know, departments that do this all the time, that do survey type of work. And they can get into a little bit more about what have you read in the press about this? What are your feelings about this? Without poisoning necessarily the mind of an actual juror, you can tell the judge these are what the attitudes are well before we even think about jury selection. You can do it now. Wow. That's really interesting. Jonna, what are your thoughts? Because this is a case that I think has had an unprecedented amount of press coverage. And I say that because we have social media now.

Starting point is 00:06:55 We have Facebook groups. We have Reddit. We have Twitter. We have TikTok. My God, TikTok. If you go on TikTok, the number of videos about this case, it's insane. Now, I'm not saying every juror in Latah County, Idaho, is on TikTok or Reddit reading all of this stuff. But there's a lot out there about this case. You know, in the Vallow case and the Daybell case, they just moved these things. They were like, you know what? We're moving it. We're moving it to Boise. That's it. So what is your thought? Do you think this is something maybe they should just pick it up and move it? Or do they have to try to see the jury first?

Starting point is 00:07:35 Yeah. So ordinarily, I don't get my feathers ruffled over changes of venue for the reasons that you just said. In this day and age, guys, I mean, with so much digital out there, our smartphones that never shut off, like everybody knows about every high profile case. So usually a change of venue really is something that turns out not to be necessary or not to be a big deal. However, this case I do think is different because it is very, very small town, because it's a death penalty case, because the circumstances are just so gruesome. And there's been so much coverage. I mean, you mentioned before we went on the air today, 9000 tips. Well, how many of those 9000 were from the 40,000 people in that small little community? I mean, that's a big it's a it's a big number. And my thought is kind of similar. Like, why not just get ahead of it? What harm is there in changing the venue to a nearby or not so nearby town to avoid what Bill was talking about, to avoid the wasting of everyone's time and resources, calling all these people in for Wadir only to learn that it's not going to be possible to get the fair and impartial jury. So if ever there was a case that screamed for a change of venue, I think this one's it. I want to take a second to tell you about truthfinder.com.

Starting point is 00:08:55 The cases we cover, like this one, really make me think about how important it is for all of us to stay safe. And Truthfinder is a website that I think can help all of us do that. Truthfinder is one of the largest public record search services in the world. The goal is to help people like you learn the truth about the people in your lives. I've covered a lot of stories about crime, so I know you can never be too careful.

Starting point is 00:09:20 Truthfinder background checks anyone you search to look for any possible red flags. Here's how it works. Log on to truthfinder.com and, for example, type in the name Brian Koberger. Results will appear within seconds telling you what they know about him. I've even searched myself and other people in my family just to see what comes up. I've also searched people I've met along the way just to see what's out there about them. So right now, you can get 50% off of confidential background reports.

Starting point is 00:09:48 Just log on to www.truthfinder.com slash LC crime fix and you can access information about almost anyone. To me, a county of 40,000, I mean, not everybody is plugged in. I mean, not everybody watches the news, which I always hate when I hear people, you know, during jury selection, when they, A, don't believe the news and B, don't watch the news. Drives me crazy. I don't understand how you do that. And a lot of people, I guess, just watch, you know, home and garden shows and stuff, which I'm totally cool with. But, you know, again, I just don't understand. I don't think you have to be in the weeds into a case like knowing about it, knowing that this horrible crime happened in your backyard for college students slaughtered in the middle of the night in their off campus home. Of course,

Starting point is 00:10:39 you're going to know about that, but not every prospective juror is in the weeds. But there is a lot of press coverage about this. Another thing I want to talk about is the fact that neither side believes this case can be tried before the spring of 2025. Judge Judge, you know, it gives him major heartburn. He just can't believe that he would even have to think about setting something out that far. But this is a case that's unique in that right now, as it stands, and there's more discovery to come, although the state says the defense has the bulk of it, the defense has 51 terabytes, 51 terabytes of information to comb through. And that's a ton of information. Plus, they have the mitigation

Starting point is 00:11:25 phase. It's not like just the trial phase. They also have to prepare for the mitigation phase. And so that's a lot of information, Bill. I don't know if you've had a case approaching that many terabytes of information because they're going to have to have investigators, I would assume, who are going to comb through all of those tips to see if there's anything they can look into. They're going to have to look at all of the surveillance footage. Can you imagine going through hours and hours of surveillance footage, how mind-numbing that would be? What is it going to take to prepare a case like this? It's going to require a huge team, first of all, and people that have designated tasks such as just you're mentioning, right?

Starting point is 00:12:08 People that start combing through what have to be there, but also have to have legal training so that they know what they're looking for. You can't just have the trial lawyers do it. They'll never get through everything. But you can't just give it to an investigator because there are issues, constitutional issues that may come up, whether it's Fourth Amendment issues primarily, right? Search and seizure. But you're also looking for evidence to be used in trial, whether it be impeachment of witnesses or whether it be evidence that tends to negate some element that's in there. So all the people on the team have to have some legal training, but they're going to be spending weeks, if not months. The biggest case I've ever had was four terabytes. I can't begin to imagine what 51 terabytes looks like.

Starting point is 00:12:53 Four terabytes. Wow. Even four terabytes. That's still a lot of information. Jonna, preparing for a case like this, I mean, they do have experts. They've said that they have investigators on the team, but it's still a lot of information to go through, even if you do have a large team working with you. Yeah, it is. And because the case is so unique, as you mentioned, it's not one of those cases where as a defense attorney, you would want to rush it through and exercise your client's right to a speedy trial with the hope that the state is going to be unable to get even more evidence to use against him. Now, that happens a lot. Like sometimes we don't want to wait a year and a half, two years to try a case because that just gives the prosecutor more time to prepare.

Starting point is 00:13:41 But in this case, it seems like if they've got 51 terabytes of information, although I guarantee you some of that is repetitive and duplicates, but that means they've already got what they probably feel is enough to convict him in this death penalty case. So it only makes sense for the defense to say, give us all the time we need. It's no skin off your back. The defendant is incarcerated. He's not going to get out pending the trial in this case. So what harm is it if you give the defense all the time they need to go through all of this stuff? And while we're on the subject, also make sure you give the defense all of this stuff, because I know there are some

Starting point is 00:14:21 fights about that as well. Yeah, definitely. One of the things that I think is kind of interesting is the fact that, you know, Judge Judge has said, you know, I just can't imagine setting something out that far into 2025. Like the thought of setting a trial out that far out into the future is just mind boggling to him. But I think this is a really big case and there's a lot to prepare on the defense side. So I don't find it that unusual because I've seen cases that, frankly, have taken years, Bill, to get to trial. I mean, maybe nobody likes that, but that can sometimes happen in these big cases. I mean, it was really possible that even though the prosecutors don't think they can be ready until spring, there's no question when the defense will be ready as well.

Starting point is 00:15:07 The defense is not going to rush. I completely agree that there is absolutely no reason for the defense to rush in this case. And nobody should be pushing the defense to rush in this case. This is a death penalty case. It's in a smaller community. There are limited resources. I know lots of resources are going into this, but the last thing that I think any prosecutor really should want is to have to try this case twice. And what I mean by that is making some error now by pushing somebody to trial before they're actually ready would be a mistake. It's going to get scrutiny along the way

Starting point is 00:15:43 all the way through, and this judge should find a way to sort of relax and understand this is absolutely rare, unique instance, and it just is going to take time. Now, the next thing they discussed at this hearing was the investigative genetic genealogy that the FBI performed this work to identify a suspect in this case. And this has been really significant because they had nothing. I mean, they knew they had a white car they were looking for. You know, after this happened, they put out the video or the picture of the white car and they said, we're looking for a car of this model, Hyundai Elantra of this year. But other than that, they had nothing. I was out there, you know, a few weeks after this happened.

Starting point is 00:16:30 And then, you know, they find out they've got this single source male DNA on the knife sheath, on the snap. It's not in CODIS. It's not in the system. So they turn it over to the FBI. The FBI starts building the family trees and they do what they do. I don't know what they do, but they did it. And they say, hey, go look at this Koberger guy and figure out if this is your guy. And then it all kind of comes together in mid-December and then they get an arrest December 29th. So the defense was allowed to look at some of this material jana which has been unprecedented typically the defense does not get access to these materials and they want their investigators not their genetic genealogy experts but their investigators to be able to kind of look at

Starting point is 00:17:20 this material as well the state's like you know what you don't need to look at this material as well. The state's like, you know what? You don't need to look at their, your investigators don't need to look at this. You've got experts. So why on earth should your people get to look at this? We've already given you an, a letter from the FBI. They kind of went through the sequence of what they did in this case. Why do you need all of this? The judge kind of agreed. He said he's open minded to maybe revisiting the issue. But this is my theory. I think they want the investigators and everybody going through this because I think they think if we can get that, if something went wrong in this process, if we can get that DNA, that identification tossed out, then maybe this whole thing falls apart. Yes, absolutely. And this is where I get really hot under the collar. Absolutely, the defense should have every piece of information that was used to identify this defendant in this needle in a haystack crime. Not only should it be discoverable, but it could

Starting point is 00:18:18 eventually be Brady material. I mean, this is fairly new. DNA is not new, but this genetic genealogy is new. And what gets me really hot under the collar is not just that it makes me defend a defendant who, if in fact he is guilty, he's just the worst of the worst. So it's really a fine line. But if he's not, if this genetic genealogy is not what it's cracked up to be, what about the, I mean, I don't know about you guys. I did the whole 23andMe thing. I don't remember signing or checking a box that said you can use my spit to arrest my relatives. I don't remember signing off on that.

Starting point is 00:18:56 And if that's the case, if we all signed off and didn't know it, should we be calling these places and saying, hey, get rid of my DNA profile? I'm not consenting to that. I just don't think right now it's as reliable as other DNA testing. And for that reason, this is a great example of why the defense should get all of it, why the investigators should go through it, the experts should go through it. And there should be no argument about that because

Starting point is 00:19:22 it's not really tested. It's new. This was needle in a haystack. And hey, he's got a right. He's got a right to an absolute defense. So I say give it all to them. Bill, do you think it's enough that they are? I mean, the judge has allowed them to view some of the material, not all of it. But the judge is like, look, you've got these genetic genealogy experts on your team. They can look at it. But your investigators, I mean, they can look at the letter that outlines the procedure. The defense is like, but that's just like notes. You know, we need to really get into the nitty gritty here and we want them involved in the conversation. Should investigators be involved in this or should it just be the experts?

Starting point is 00:20:05 You know, this is not well-settled science. And because it's not well-settled science, I think that anyone working on the defense team should really get access to the information that is new. The FBI has a long, long history of claiming that they were experts at something, only to later on find out that they really weren't the experts that they claimed to be or the science that they relied upon was not as accurate as they thought it was. And a lot of it comes down to the ability to drill down into their notes, into the procedures, into what was going on. And that may be just for the scientists to look at, but you'd be surprised at what ex-police officers, who I'm assuming some of the investigators are probably ex-investigators, might notice than an expert might not notice. And because it's new, and you should be allowing the defense to have full challenge to it. We saw this early on with DNA. Everyone said it was infallible. Maybe not so much. Fingerprints, not so much. Markings on shell casings. I mean, there are

Starting point is 00:21:12 lots of issues where over time, we found out that it's not everything it was presented to be. And this is where you're asking somebody to be executed. You're asking, this is the ultimate punishment. We're not talking about money damages. We're asking, this is the ultimate punishment. We're not talking about money damages. We're not talking about a low-level felony. Somebody could be executed as a result of this. And you shouldn't be doing it on something new that the FBI is claiming that they are now experts at. Well, Judge Judge said he's not shutting the door on it.

Starting point is 00:21:41 He has an open mind. They could revisit it. So we'll see what happens. Brian Koberger will be back in court in May. Johnna Spilbor and Bill Gallagher, thank you so much for coming on. I appreciate it. Always a pleasure. Always wonderful. And that's it for this edition of Crime Fix. I'm Anjanette Levy. We'll see you back here tomorrow night. Until then, have a great night. Vanessa Vine. Savannah Williamson is one of our producers. Diane Kay and Alyssa Fisher book our guests. And Brad Mabey is our audio editor.

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Crime Fix with Angenette Levy - 3 New Developments From Bryan Kohberger's Hearing in Idaho Student Murders

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Crime Fix with Angenette Levy - 3 New Developments From Bryan Kohberger's Hearing in Idaho Student Murders

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