Crime Fix with Angenette Levy - 7 New Details Revealed In Bryan Kohberger's Death Penalty Case

Starting point is 00:00:00 Wondery Plus subscribers can binge all episodes of this Law & Crimes series ad-free right now. Join Wondery Plus in the Wondery app, Apple Podcasts, or Spotify. This new year, why not let Audible expand your life by listening? Audible CA contains over 890,000 total titles within its current library, including audiobooks, podcasts, and exclusive Audible Originals that'll inspire and motivate you. Tap into your well-being with advice and insight from leading professionals and experts on better health, relationships, career, finance, investing, and more. Maybe you want to kick a bad habit or start a good one. If you're looking to encourage

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Starting point is 00:01:34 and the judge was not holding back. But you've made some serious accusations against the state of hiding evidence, and yet you've provided no factual basis, zero, that that evidence existed. And prosecutors are firing back at the defense. We have a lot better aggravating evidence than the fact that he has level one autism. I go through some of the new details that we've learned about the case. Welcome to Crime Fix. I'm Anjanette Levy. It was a long, long day in court for Brian Koberger, his lawyers and prosecutors, as they argued over what evidence the jury would hear at his trial this summer. Koberger's lawyers and prosecutors have filed a number of motions

Starting point is 00:02:22 discussing everything from Koberger's car and cell phone records, a surviving roommate's description of a man with bushy eyebrows, Koberger's Amazon records, his autism diagnosis, and whether the death penalty should be a possible punishment for him. Koberger's lawyers say he maintains his innocence in the murders of Maddie Mogan, Keely Gonsalves, Ethan Chapin, and Zanna Kernodle at a home near the University of Idaho campus in Moscow in November of 2022. Now, we learned some new things about the case at this hearing, we usually do,

Starting point is 00:02:54 and I'm going to go through those, but first, let's listen to some of the arguments. Koberger's lawyers have asked Judge Hippler to bar prosecutors from labeling him a psychopath or a sociopath. Here's Ann Taylor. If that's allowed to happen, then Mr. Koberger is colored with an opinion or a way the state to label him in testimony as a psychopath or a sociopath. Because any kind of testing is unreliable, that would become problematic within the rules of evidence to do so. And the inflammatory nature of those

Starting point is 00:03:47 kinds of labels would. I'm not aware of any testing that has been done that has reached that conclusion. Am I missing something? You are not missing anything. There has not been any testing. There has not been any labeling. Now, a lot of people were confused by this request. Why is she asking for this? Ann Taylor said it was simply preventative, but prosecutors said they weren't going to use those words anyway. Here's Judge Hippler. With respect to the use of terms psychopath or sociopath, I do understand that there is no evidence that the defendant specifically has been tested and found to be with that diagnosis or personality disorder, if you will. And I understand the state is not intending to, at this point, seek to attach that label. Absent evidence, competent forensic evidence, if you will,

Starting point is 00:04:51 qualified expert evidence, and I haven't worked all the way through penalty phase, and I suppose that could come up in penalty phase of things, but for now, certainly for the guilt phase, innocence phase of the trial, I am ordering that the state and its witnesses not use those two terms or their equivalents. I want to take just a moment to tell you about Upside, the sponsor of today's Law & Crime YouTube takeover. Upside is a great free app that gets you cash back on things like gas, groceries, and restaurants. This is real cash back. It's money that appears in your Upside app that you can transfer straight into your bank account. I've used Upside when I go to Dunkin' Donuts for a cup of tea, which I do pretty often. I claimed an offer for Dunkin' on the app.

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Starting point is 00:06:11 The defense also wants to bar the prosecution from using inflammatory evidence, like extremely graphic crime scene photos from King Road. Let's hear what the judge had to say about that. The photographs or videos of the decedents and the state of the crime scene. This, I would imagine from what I've seen, some of those photographs are particularly graphic, but make no mistake, these murders, whoever committed them, were brutal and were horrific. And so I suspect that the evidence will reflect that. Now, if it comes to cumulative evidence or perhaps some that are unnecessarily graphic, we can address that on a case-by-case basis. Now, here's something new that we learned about the details of a traffic stop involving Brian Koberger on August 21st, 2022. This happened

Starting point is 00:07:22 about two miles from the King Road House the night before classes started at the University of Idaho. Prosecutors want the jury to see that traffic stop to show Koberger in his car, but the defense disagrees. In this video, things that make it more prejudicial than probative are that it provides presence in Moscow. It is at night. It is a visual of the car that is not just the make and model. It is Mr. Koberger's statement that he doesn't think seatbelts provide much in the way of safety. Mr. Koberger's question about why they need his phone number. Mr. Koberger's question about how the officer reacts when people lie to him about wearing a seatbelt. If the court allows this evidence in, the state has the ability to use this to make many other points beyond identity,

Starting point is 00:08:22 and the jury would have the ability to potentially seek to ask to rewatch the video and draw other conclusions that we are worried about, such as, as I mentioned, him being at night, not wanting to, it being at night, him not wanting to give his phone number, which could be construed as he wants to hide his identity. Now, we knew about this traffic stop and requested the video. It's the only one involving Koberger that's never been released. Prosecutors simply won't give it up to the public. Bill Thompson argued the jury should see this video. Just because the defendant doesn't like the fact that we can prove who he is, that we can prove what car he's driving,

Starting point is 00:09:05 that we can prove what his phone number is, that we can prove his address. I mean, those are all things that tie together to connect the defendant to the homicides. Just because they don't like that isn't a basis to object to it. Now, Judge Hippler said certain aspects of the video are concerning, like Koberger asking police why they need his phone number. So stay tuned for a ruling on that video. Koberger's lawyers also argued their motion to keep the surviving roommate, DM, from using the words bushy eyebrows to describe a man she saw walking through the King Road house, which is how this selfie of Brian Koberger came to light. He took it six hours after the homicides occurred. Prosecutors say it shows his

Starting point is 00:09:45 eyebrows that morning. Koberger's lawyers say DM's account is unreliable for many reasons. She described herself as, quote, probably very drunk. And given the amount of alcohol, she told law enforcement about consuming the entire day. That makes sense. She started with champagne mimosas in the morning, then white claws nine to ten throughout the day. Then that night before she got home, she was involved in a drinking game and drank Borg, which is hard alcohol and flavoring. Her degree of attention, given this, supports unreliability. Factor three, the accuracy of the description. Her description is that she saw a person wearing all black, not insanely tall. She doesn't know if she saw lips and nose.

Starting point is 00:10:33 She is certain he is white. She never mentions eyebrows herself initially. The person who asked about eyebrows was law enforcement. Now, Koberger's lawyer said that DM told detectives that she saw Zanna Kronodal at some point and thought she was simply passed out from drinking too much. Prosecutor Ashley Jennings responded that DM is a reliable witness. The male DM saw that night was covered head to toe. The only thing that was uncovered was a portion of his face. That does not lend itself to positively identifying any particular person. Therefore, an identification procedure was not used and that Manson-Bigger's test is inapplicable. Instead, on four separate occasions before Brian Koberger was even identified or arrested,

Starting point is 00:11:28 DM gave consistent descriptions of the male she saw in the residence that night at around 4 a.m. Every time she described this person as being white, male, wearing all black, a few inches taller than her. She's 5'10", wearing a mask, skinny, athletic tone build, and not a voice that she recognized. During three of those interviews, she then describes the male's eyebrows, and she describes them as being bushy. Obviously, there was some focus on the eyes or the eyebrows by investigators because this is the only portion that she could see. She never wavers in her description of the person that she saw. She's very clear about what she does remember and what she doesn't remember. Defense put the state of Mr.

Starting point is 00:12:23 Coburger's eyebrows into question in an attempt to discredit DM's testimony or description. They wrote, Mr. Koberger does not have bushy eyebrows. Judge Hippler did not rule on that motion. He will do so later. Now, just in the last month, the defense has revealed that Brian Koberger has been diagnosed with autism, and they're revealing this for a number of reasons. But first, Koberger's lawyers diagnosed with autism, and they're revealing this for a number of reasons. But first, Koberger's lawyers say they don't want his autism used against him as an aggravating factor in the penalty phase if the jury finds him guilty. Your Honor, when I look through the mounds of discovery, there are probably 100 hours of interviews of people that Mr. Koberger went to school with at WSU. And of course, those interviews come just hours and days after the headlines hit that Mr. Koberger's

Starting point is 00:13:14 been arrested in this case. And people that he went to school with, that he interacted with, had unkind things to say about him. And a lot of their unkind things, when you understand them in the context of autism, the way he may stand in a room near a doorway, the way he may look too long at a person, their interviews are different when you know he has autism and you know the characteristics he displays. But those awful comments, those mean comments about him, if the state uses those as aggravators, that's using his autism characteristics. So this was a pretty interesting argument that Ann Taylor made.

Starting point is 00:13:56 The prosecution said though that it won't be using Koberger's autism diagnosis against him. Here's Assistant Attorney General Jeff Nye. The state has no plans whatsoever to use the autism during the penalty phase as any kind of aggravation whatsoever. There is no plan to put on students from the university to talk about their personal views of this individual. To be quite frank, if we get to a penalty phase, we have a lot better aggravating evidence than the fact that he has level one autism. And frankly, it's just not a persuasive argument to ask a jury to impose the penalty of

Starting point is 00:14:31 death because someone has autism. So this next motion is really important because it has to do with Brian Koberger's family being in the courtroom during the trial. Prosecutors have said they may call members of Koberger's family to testify so they can't be in the courtroom until after they do so. That made it sound like they may be cooperating with prosecutors, but Koberger's lawyers say not so fast. The state submits that by simply placing our client's family on its witness list, that is enough to warrant exclusion and further that they may call family members. I want to note that they have not subpoenaed them. The state's attorneys have not interviewed them and they know that Mr. Koberger's family does not have any interest in helping them. They also know from watching all of Mr. Koberger's video visits how much his family loves him and supports him and that he is

Starting point is 00:15:29 absolutely dependent on them having been in isolation for almost two and a half years and by the time we get to trial it will be almost three years. His parents attend every court hearing, and the only reason that they are not here in person is that they do not have the money to fly back and forth from the East Coast. If they had the financial resources, they would be here in person every single court date. Sequestration of witnesses under IRE 615 is discretionary. The language in the statute is that they may be excluded by the court. This means that there's court discretion in that decision, and there's a reason for that. So that was some really interesting information that we learned from Coburger's lawyer. His family is standing behind him. Here's what Ashley Jennings said in response.

Starting point is 00:16:26 In no way is the state intending to use its subpoena power in order to exclude Mr. Koberger's family from the courtroom. The state's not aware of any authority to support this argument that the defendant has a Sixth Amendment right to have his family in the courtroom. He, of course, under the Sixth Amendment has the right to a public trial, but that's not his choosing of who is in that courtroom. Totally understand it's within your discretion to allow certain immediate family members in the courtroom to support Mr. Koehberger? Is there a reason you can't simply take up whatever family members you may need to testify in your case in chief right at the beginning? Other than you know obviously I know you have a narrative on how you want to lay these things out but what I will tell you is both sides ought to get used to the idea that with a three-month trial the trial

Starting point is 00:17:23 schedule will not be held hostage to your narrative. In other words, we'll be taking things out of order, stopping witnesses to put another one on to make sure we get them through them and picking them up again. And so is there a reason you couldn't call whatever family members you need right away? Well, I will say, you know, we have no intention of calling all the family members. We have the intention of calling a few of the family members who serve certain purposes. I can't think of a reason that we couldn't. Obviously, it's not ideal. It's completely out of context.

Starting point is 00:17:55 It's out of order. This is like a gumbo. You are going to put all the pieces that go into that into the pot. At the end of the day, the jury is going to decide whether it's a good soup or not from the state's perspective. And so I think we get too obsessively stuck on the idea of exactly the order these things need to come in right and so I'm not sure why you couldn't call the family members you need up front and then we take away this concern I can certainly understand the defense perspective the need and desire to have the defendants support a family here in the courtroom?

Starting point is 00:18:47 I do too. And I guess my preference would be for that, even though it would be out of context and interfere with the state's preference of how to present its case. And I think I do take issue with the defendant being able to direct how the state presents its case to a jury. So Judge Hippler basically told the prosecutors to adjust and call whichever Koberger family members they need to call early in the trial so they can be in the courtroom to support him. Now, we've heard a lot about Brian Koberger's Amazon account, and prosecutors have said he bought a K-Bar knife and sheath on Amazon in March of 2022, eight months before the murders. As lawyers say, testimony about

Starting point is 00:19:31 click activity on that account is unreliable and shouldn't be allowed at trial. You also just proffered that, you know, that based on the information that you understand, that that equates to a purchase. And I've put a declaration in front of you from an expert that says that Amazon doesn't work exactly that way. And that's the problem, that when it is represented as a click, that that indicates to the average person that he sat at a desk and clicked and made a purchase when there's a lot more to them. And maybe I'm completely out to lunch, but as I understand it, to buy something on Amazon, you've got to put it in your shopping cart and hit purchase. Am I wrong about that?

Starting point is 00:20:17 No, that is a step, but how it gets in your cart and what items get in your cart really has to do with the whole model and the ecosystem of the way that Amazon works, right? And so the state wants to apply argument in an argument. They will apply intent to purchase a K-bar to get to November 13th, 2022. The evidence to argue at closing arguments. But we still have to have testimony that explains those things in between. Now, Ashley Jennings says this shouldn't even be up for discussion. Judge, this is pretty simple. Shane Cox and Mike Douglas, since he gets brought up, they're fact witnesses. They're not going to have opinions.

Starting point is 00:21:07 They review records. They're going to testify to what those records show. Shane Cox's testimony is laid out in the supplemental amended disclosure. This is exactly what he's going to testify to. And what he's going to say, he's very careful in what he says that he's going to say. That's what we're anticipating. There is no grounds to exclude his testimony. We applied for and we were granted a search warrant for Brian Koberger's Amazon.com user activity.

Starting point is 00:21:38 The search warrant was narrow in scope to items related to the homicide and evidence related to the seizing of knives. In this case, it was knives and knife accessories. It directed law enforcement to see certain items, his customer click activity pertaining to knives and accessories, his payment method used, details of items in cart, including all items added to the cart or removed from the cart or wish listed or in a shopping basket, all suggestions made to the account, all records regarding reviews by other Amazon users, advertising data, devices used to connect to the account, and all accounts linked to the account. The state requested the data between limited time periods, March 20th to March

Starting point is 00:22:33 30th, and November 1st to December 6th. Those were the relevant time periods. And in response, we got responsive data, and that's what we plan on presenting to the jury. Amazon's use of AI is not a basis to exclude and it's completely irrelevant. AI doesn't click on things for a user. There are no legal grounds to exclude this. But listen to this. We learned something new about how the state claims Brian Koberger bought this K-Bar knife, and it came from Judge Hipler. Special Agent Douglas's testimony, that seems to have shifted a bit from he's going to talk about bank records and debit purchases, and it's become bigger without any opinion. I don't know what his opinion about anything will be. That needs to be limited. I think he can come in and talk through the financial records

Starting point is 00:23:25 and say, this shows a transaction with Mr. Koberger's credit card to purchase a Amazon gift card, and that this Amazon gift card was used to purchase a knife. If he can say all of those things, I think that his ability to talk about receiving a bank record and looking at it and saw a purchase history, I think that's fine. But to provide an opinion about what that means, that's not disclosed. Well, Your Honor, I don't want to wait to find out. I'm asking the court. My point is, I'm not in a position to exclude their testimony because they haven't shown me that they're offering something beyond what they've disclosed. So the state is going to prove that Brian Koberger bought an Amazon gift card and then

Starting point is 00:24:15 used it to buy the knife. That's their claim. Now, remember when I told you that Brian Koberger claimed his alibi was that he was out driving the night of the murders and that he did that often to go to a park and look at the stars? Well, the state says that doesn't qualify as an alibi was that he was out driving the night of the murders and that he did that often to go to a park and look at the stars. Well, the state says that doesn't qualify as an alibi, but Ann Taylor says it does partially. Mr. Koberger has consistently maintained his innocence and said that he was out driving in the early morning hours of November 13th, 2022. And you can testify to that. I'm going to get to that.

Starting point is 00:24:48 We provided Mr. Ray as a partial corroboration of Mr. Koberger's alibi in an abundance of caution. The thing I didn't want was to be here with Mr. Thompson saying they should have told us they had a partial corroboration. Now they can't use it. So that's why we disclosed Mr. Ray as early as we possibly could. Mr. Ray took the stand in a motion hearing last May, I believe, and the state chose not to cross-examine him. I disagree that Mr. Judge, Judge Judge, gave us repeated opportunities to produce more. There was a mix up about what an order meant when speedy trial was waived and the trial was reset and all of the deadlines were extended. The problem is Idaho requires someone to have a witness who can vouch for an alibi and Koberger hasn't provided that. Well, we knew the defendant was out driving around that. Well, we knew who the defendant was out

Starting point is 00:25:45 driving around. We have other evidence that show the defendant was out driving around. His phone was turned off, so we can't trace his exact location at the time of the offenses, but it overlaps and coincides with the time of the murders. The can's been kicked down the road several times on this, and it's nobody's fault. Judge Judge afforded the defendant multiple opportunities to provide a compliant alibi response. That never occurred. The defendant's response from April earlier this year, excuse me, from earlier this year doesn't have anything new or different. It talks about partial corroboration of a partial alibi, which frankly the statute doesn't talk about partial anything, nor can we find that in the case law. The defendant acknowledges that their

Starting point is 00:26:49 cell phone expert, Mr. Ray, can't account for the time of the homicides itself. Of course, we know that because his phone was turned off. So the only person who can testify to an alibi if there is an alibi is the defendant himself. If he elects to testify, that's fine. So the only person that Brian Koberger has testifying about his partial alibi at this point is his cell phone expert, Cy Ray. The notion of partial corroboration of alibis is concerning because that kind of begs the question between complying with the alibi disclosure statute or not. Why shouldn't we just look at this in terms of the defendant's version is that Mr. Ray,

Starting point is 00:27:34 in his expert work, is going to testify the defendant was at a certain place at a certain time, which is up to 250, whatever it was. As of this point, they have provided no other alibi witness. Yes, sir. Or the alibi instruction likely is not going to be given? Yes, sir. If they come across evidence that supports an alibi, is there obligation to immediately make you and the court aware of it. And then we'll deal with the issue of whether it is the timeliness of it and how we deal with it. Thank you, Your Honor. The court articulated it much better than I could. That's exactly what we were looking for. Thank you. So you heard it. As of now, Brian Koberger does not have an alibi, but that could always change.

Starting point is 00:28:25 Now, let's get back to Koberger's cell phone expert, Cy Ray. He has accused prosecutors of withholding timing advance records for Koberger's cell phone. But prosecutors say they've done no such thing. And Judge Hippler was not happy. And I'm and I'm not upset, but I just for Mr. Ray's information, because he wasn't here the first day I started this trial with you folks. I said, I don't want theatrics. I don't want accusations that aren't supported with evidence about supposed bad conduct of the parties. You're all professionals.

Starting point is 00:28:58 I respect you all. And the accusations he made in there are very concerning. The kinds of accusations of truth that would get people disbarred. And so without any evidence and apparently sidestepping the clear explanation, he makes those. And so that doesn't make me happy. Now, there have been a lot of questions about whether Brian Koberger knew or ever encountered the four victims. His attorneys have said there was no social media connection. Well, Judge Hippler has gone beyond that.

Starting point is 00:29:33 Take a listen. We've watched a lot of the video that's contained on that server. Also on that server are vast amounts of bank records, vast, vast amounts of cell phone for all of the people that Ms. Jennings mentioned, the deceased and people close to them and other people. They've indicated that they've, their experts have examined that and found no connection between Mr. Koberger and the decedents. I'm grateful to have recently learned that. I mean, that's what we believed, but that was in that March disclosure when they said that they'd examined those. And those were computers, the seven computers, I believe. It's that kind of thing

Starting point is 00:30:22 that takes a lot of time. So Hippler is saying no connection has been found between the victims and Koberger when examining computers. This raises the question, if there's no connection, what could possibly be the motive in this case? There is a lot more to discuss and we will on the next episode of Crime Fix. So stay tuned. I'm Anjanette Levy. Thanks so much for being with me. I'll see you back here next time.

Crime Fix with Angenette Levy - 7 New Details Revealed In Bryan Kohberger's Death Penalty Case

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