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

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. We think that the court ought to strike the death penalty, this time citing autism spectrum disorder, and the defense doesn't want the word psychopath used at trial as prosecutors try to bar him from presenting his partial alibi or accusing other people of the crime. I have the details in motions just filed. Welcome to Crime Fix. I'm Anjanette Levy. It's been a busy, busy week in Brian Koberger's case as his attorneys and prosecutors get ready for trial by filing a flurry of new motions. Koberger could be put to death if he's convicted of murdering four University of Idaho students.

Starting point is 00:00:58 His attorneys have said he's innocent, and they've tried unsuccessfully to get DNA evidence and much of the other evidence collected against him thrown out. But prosecutors say they have the goods on Koberger. They say he murdered Maddie Mogan, Kaylee Gonsalves, Ethan Chapin, and Zanna Kernodle in a home off campus in November of 2022. All four students were stabbed to death, some as they slept. Now let's say Koberger is convicted and the jury finds he should be sentenced to death. The firing squad is now an option in Idaho. Koberger's lawyers have already tried once to have the death penalty removed as a possible punishment. Here's his attorney Ann Taylor last year.

Starting point is 00:01:42 The firing squad ended up on the books because of the difficulty obtaining the drugs to kill somebody. That's why the firing squad came back. Idaho brings it back in 2023. They bring it back because it's not reliable to believe they're always going to be able to get the chemicals to execute somebody. And that's the real problem here. The firing squad hasn't been funded well enough to be built there Are building it right now as I recall from the media at least that the construction is actually underway But I may be wrong about that Well, I haven't talked to the

Starting point is 00:02:18 Director of the Department of Corrections and that's probably who I would take my word from if that's actually happening right now I think there's some additional problems with the firing squad, though. I think there's some problems with the way our statute lays it out, too. Judge Hippler denied the request to strike the death penalty, and that wasn't a surprise. But now the defense is taking another swing at striking the death penalty. The defense has filed a motion to strike the death penalty. The defense has filed a motion to strike the death penalty citing autism spectrum disorder, but the exhibits attached to the motion are sealed, like many of the other documents in the case. Now, this is the first time

Starting point is 00:02:56 we've heard anything about Brian Koberger possibly being on the autism spectrum, which includes Asperger's syndrome. The defense is also asking for permission to file other motions to strike the death penalty. So they're not giving up this fight, not buying a long shot. And get this, prosecutors are asking to bar the defense from presenting neuropsychological and psychiatric evidence. Now, a lot of the documents, as I mentioned, are sealed in this case, but the prosecution says they're doing this in response to witnesses the defense wants to call. Remember, Idaho doesn't have an insanity defense. Prosecutors cite a statute which provides that mental condition shall not be a defense

Starting point is 00:03:37 to any charge of criminal conduct except expert evidence on the issues of any state of mind, which is an element of the case. Now, pretty interesting because the defense apparently wants to call those witnesses into response to witnesses the prosecutors want to call. The defense had written, testimony is not intended to be a mental element defense pursuant to Idaho Code 18-207, but rather this testimony is about state of mind as well as factual defense testimony to anticipated testimony elicited by the state. Now, I think this may have to do with testimony that prosecutors want to present about what was going on with Brian Koberger in his life

Starting point is 00:04:19 at the time that these murders were committed. There have been reports that things were not going well for him with his teaching assistant position at Washington State University. We'll see at trial. But another thing that caught my eye, the defense has filed a motion asking the judge to bar the use of the word psychopath or sociopath at trial. That might come in during the penalty phase. More on that later. Now, remember when the house on King Road was torn down? Haley Gonsalves' family was incredibly upset. They were worried that it would be needed for trial and that the home was torn down prematurely.

Starting point is 00:04:54 But the defense and the prosecution both agreed the house would not be needed for trial and signed off on the university tearing the house down. So the house came down in December of 2023. The house had a really odd layout, so prosecutors are asking the judge to allow them to show the jury a 3D model of the house. They write, this model will consist of three levels, which can be removed by level to show the interior layout of the residence. The interior layout will depict wall and doors placements, i.e. no furniture, human depictions, etc. The model will be placed on a rolling table for portability within the courtroom, can be placed out of the way when not in use. This model is being constructed by the Federal Bureau of Investigation based on depictions, documentation, and measurements taken at the scene prior to demolition of the 1122 King Road residence. Now remember, the feds had gone back to the house to measure it. Prosecutors continue,

Starting point is 00:05:52 the primary purpose of this model is to aid the jury in having a better understanding of the layout of the residence, which is unconventional, and to illustrate where certain events occurred within the residence. The model will aid certain witnesses, i.e. law enforcement, surviving roommates, individuals responding to the crime scene, and crime scene analysts in demonstrating the location of victims, location of witnesses, location of items of evidence, items related to their testimony, path of travel, etc. The state anticipates laying the proper foundation to establish the model accurately reflects the layout of the 1122 King Road residence.

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Starting point is 00:07:10 start a claim from your phone in eight clicks or less. So if you're ever hurt, start a claim at forthepeople.com slash crime fix or click the link in the description and pinned in the comments. It's not clear whether the defense will object to the model of the house, but you never know. When Koberger's trial begins, his defense may want to point the finger at other suspects, but prosecutors don't want that happening. Koberger's lawyers have already brought up two unknown DNA profiles found at the King Road house. We've told you about this before. At a recent hearing, Ann Taylor asked the lead detective, if I told you the lab report showed unknown male B came from a blood spot on the handrail going between the second and the first floor, does that help jog your memory when asking him about it?

Starting point is 00:07:57 So there was a blood spot on a handrail and male DNA found on gloves outside the house. The defense has brought these up a couple of times. Prosecutors are asking the judge to bar evidence about alternative suspects. Prosecutors write, the Idaho Supreme Court noted the trial court must first consider and determine whether the evidence is relevant. The second step is to determine whether the probative value of the proffered evidence is substantially outweighed by the danger of unfair prejudice, confusion of the Prosecutors do not want Koberger using the some other dude did it defense. They write, in this case, during the course of the investigation, literally thousands of tips regarding possible perpetrators were received by law enforcement,

Starting point is 00:08:50 with the exception of information regarding the defendant. None of these tips were substantiated. The state submits that any attempt by the defendant to offer or argue an alternative perpetrator theory without evidence specifically connecting persons other than the defendant to the homicides would do nothing more than mislead and confuse the jury and would also result in undue delay, waste of time, would be a needless presentation of cumulative evidence and unfairly prejudice the state. Under the Idaho Supreme Court's ruling in Meister, this should be prohibited. The prosecution is also asking Judge Hippler to bar the defense from presenting their

Starting point is 00:09:30 alibi at trial. You know, the one where he was out driving west of Moscow, including visiting Huawei Park. The prosecutor writes, the defendant has yet to specify the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi, as directed by the February 23, 2024 order setting deadlines and hearing, and as discussed in the state's April 26, 2024 response to notice of defendant's supplemental response to state's alibi demand. So there is a lot to talk about. And to do that, I want to bring in Philip Dubé. He has worked as court appointed counsel in Los Angeles County. Philip, there have been a lot of motions in

Starting point is 00:10:18 limine filed to address issues at trial. And I want to start with this first one about the state basically saying Brian Koberger's alibi, this alibi he's presenting that he's at this park and he's driving around, not really an alibi. And so Judge Hippler should tell them they can't present this at trial. Your thoughts on this? Well, it's a little complicated. And I'll tell you, obviously he wants the jury to know that he was elsewhere at the time of the crime, that he was either praying and chanting and sitting in the lotus position, maybe doing Pilates stretches, looking at the stars as opposed to slitting for students throats. given that. The problem is you have to disclose that upon a discovery request from the prosecution early. You can't just wait to the 11th hour. And there are reciprocal rules of discovery in the state of Idaho that require the defense to turn over all the facts surrounding the alibi, any witnesses who can corroborate it, any physical or circumstantial evidence or digital evidence that you might have.

Starting point is 00:11:25 If you don't turn it over, it deprives the state of its ability to investigate it and to rebut it. The remedy is discretionary exclusion by the judge. So in theory, Judge Hippler could just say, you know what? You didn't turn this over. Knock off this gamesmanship. There is now a doomsday sanction for this type of gamesmanship, and that is exclusion. So move on to your next defense theory. It's not going to be alibi. Now, on the other hand, you never want to deprive a defendant of a defense. And it is discretionary for a reason. There may be legitimate good cause reasons why the defense did not turn it over. It could be that they were waiting for the

Starting point is 00:12:05 prosecution to provide them with really important probative evidence to prove his whereabouts that they could not get on their own through the subpoena power. And it could be that the prosecution was dilatory or lollygagging and not getting it to the defense to show that he in fact has an alibi. But if that is the case, the prosecution had it all along. So they really can't cry foul if the very evidence that they need to refute the alibi was already in their possession. Well, the defense has accused the state many times of multiple discovery violations. They want to strike the death penalty because of that again. So they've made many of these arguments. But they're saying the state is saying, look, you missed your deadline and you haven't given us any witnesses. You haven't

Starting point is 00:12:57 met the code requirements for presenting an alibi. So Hippler seems like he doesn't really put up with any type of, you know, nonsense. So do you see him saying, you know, basically put up or shut up to the defense, hand over the witnesses if you have them? I think what the court's going to do, and it's very common, the court's going to set what we call a compliance date. In other words, make an order saying, look, I'm not going to exclude it, but I'm going to give you a drop dead deadline. If you do not meet that deadline that I am telling you now, you're not going to put on that defense. So what he's going to do is give them a date. And then that date is always subject to a good cause continuancy. For whatever reason, they cannot turn it over. And it goes back to what I just said a moment ago, and that is they could be waiting for discovery from the prosecution to help buttress

Starting point is 00:13:50 their alibi defense. And you just put it all out there on the record and the judge can factor that in. But there is no way on God's green earth that the judge is going to exclude alibi. At most, he just might put the trial over, give them a little more time so that everybody is on equal footing in presenting the case. Let's move on now to the barring of the some other dude did it defense. The state is saying they shouldn't be allowed to point the finger at a third party, other suspects, unless they meet certain requirements under Idaho case law. And they mentioned the Meister case. Are they doing this in part because of this unknown male DNA? I mean, I feel like this is pretty common. I've seen this in other cases where prosecutors say they shouldn't be allowed to point

Starting point is 00:14:37 the finger at other people unless they have evidence of it. But does this have something to do with those unknown male DNA profiles that the defense has brought up in court time and time again? I'm sure that's what it is, because that's the only evidence that they have that somebody else might have been at that house. And to be fair, it really could be an alternative type perpetrator of the crime. But again, it goes back to what I just said moments ago. They already have that discovery. Remember, the defense learned of it through the prosecution. So it should come as no surprise and no shock that they're going to try to use that biological evidence to link this

Starting point is 00:15:18 sort of unknown third party culprit to the homicide. Now, the problem is for the defense, if you really think about it, it's sort of inconsistent. He's saying he was sitting in the lotus position, contemplating his navel, looking at the stars. OK, how can you have an alibi? OK. And yet claim that there is a third party culprit. You have to kind of pick your poison, if you will. Otherwise, you're going to have to put on both defenses and it's going to look desperate to the jury. The problem with third party culprit or alternative type perpetrators is that you have to have more evidence than just the means, the motive, and the opportunity for this unknown third party to have committed it. You need something concrete to really link that person to the crime, as opposed to just some evidence of

Starting point is 00:16:06 presence of another person's DNA in the abstract. And what they should do maybe, if they haven't already, is run that specimen through CODIS, the Combined DNA Index, or through investigative genealogy like they did to Brian Koberger, and see if you can find out who that is. If you're not going to do that, then it looks like the state's hiding the ball because I don't believe that the defense has the capability of just presenting a specimen to private data banks and asking them to do an IGG run. They can't do it because it's law enforcement activity in nature and the defense has no standing or contractual right to do it. Yeah, there's been conflicting answers given about the unknown male DNA. The prosecution

Starting point is 00:16:53 said in some court filings over a year ago and in court that there weren't enough points or whatever it wasn't suitable to upload to CODIS. And then the detective said at a recent hearing, we couldn't pull, you know, the unknown, you know, which turned out to be Coburger's DNA, they're saying on the knife sheath, we couldn't pull that out of CODIS and then insert these other ones. So there's been two kind of conflicting accounts of how that went down.

Starting point is 00:17:18 But yeah, like IGG, they could do that and figure out who these people are and then go interview them. And then there you go. That takes care of that. This 3D model thing that they want to bring in, this defense agreed to tear the house down. They said, we don't need it. State says, we don't need the house. There was a big hullabaloo about tearing down the King Road house before trial. Now the state wants that. They said the FBI is making a 3D model. They can take it apart and show people where things happen in the house. It's a wonky shaped house.

Starting point is 00:17:53 Do you think the defense objects to this? I don't think so, to be honest with you, because if you really think about it, let's just pretend that the house was still standing. In theory, the prosecution could have moved for what's called a jury viewing. And in theory, the judge could have allowed the jury to actually go out to the scene. But I doubt that the court would have done that. Instead, the court might have said, well, look, what else do you have that's a reasonable facsimile of that house? Do you have a video, for example? Do you have a model of the home? What else do you have? Well, they're bringing in the next best thing. And that is basically a playhouse, if you

Starting point is 00:18:31 will, of that. Sounds like a dollhouse. That haunted house, like a dollhouse. Exactly. Albeit a little Alice in Wonderland-ish because it's miniaturized. But nonetheless, if it sort of meets the specs of the size and the dimensions of all the rooms in that house, I think it's the next best evidence. I want to get to the big one now. The state is going back to the death penalty. OK, they are saying now and I don't know why they didn't bring this up before that they want to strike the death penalty and they're citing autism spectrum disorder, which includes Asperger's syndrome. And I bring that up because Brian Koberger from the little bit we've seen, if he's on the autism spectrum, I would think it

Starting point is 00:19:17 would be at the very high functioning end. What do you make of this? Because the exhibits that are attached to this motion are sealed. Gosh, like, is this a is this a last ditch effort to strike the death penalty? I mean, and I'm thinking Asperger's only because that is on the higher, higher functioning end of this. And he's a TA and it talks about social awkwardness, having trouble maintaining relationships, things like that. Those are hallmarks of Asperger's syndrome. Yeah. Well, first of all, the U.S. Supreme Court held back, and I think it was 2002, in a case called Atkins v. Virginia, that states cannot execute the intellectually disabled, period. So what it would do, and I don't know that I would necessarily call it a last ditch effort. It's basically what I call a process of accretion in litigating a case, and particularly a capital case. You start with your initial line of attack, and that was get all the evidence, look at it, and see if any of it is inadmissible. And then you file your necessary suppression motions where the evidence can't come in on constitutional grounds. And unfortunately,

Starting point is 00:20:32 the defense suffered all kinds of defeats on that front. So now what do you do? Well, now you're focusing more on penalty. And if you can invoke your rights under Atkins, then you request what's called an Atkins hearing. And that is a hearing where a judge actually takes testimony from all the experts and decides whether or not the capital defendant meets the criteria of being intellectually disabled. And essentially what the defense has to show is that he has a sub average, and it's typically way below 70. And in fact, in the Atkins case, I think Mr. Atkins, who was 18, had an IQ of 59. I mean, he was mildly mentally retarded. And I don't even know if it's politically correct to even use that expression anymore. But back in those days, that was the operative sort of clinical language that they used.

Starting point is 00:21:22 And then you have to show that they have poor performance and social and adaptive and behavioral skills. And you also have to show that these deficiencies probably were exhibited before the age of 18, because you have to show that this was like a lifelong battle and not something that you're just going to discover or manufacture in your adult years to skirt the death penalty, if you will. So now what it is, it's a question for the court and it's litigated at the Atkins hearing. And for now, the motion is impounded or sealed because there's certain, I don't want to say proprietary, but private confidential opinions that were rendered probably by various neuropsychologists who may have done some testing, psychiatrists and then regular clinical psychologists. So you keep that kind of non-public until the hearing.

Starting point is 00:22:17 This other motion that's been filed is pretty interesting to me, too, because I don't know if I've ever maybe I have heard, actually, I've covered a lot of cases and I've seen some prosecutors say some things over the years that were somewhat inflammatory. But the defense has filed a motion about the use of the word sociopath or psychopath at the trial. They don't want that, either of those terms used, you know, a psychopath is clinically somebody with no conscience. And sociopath is kind of like a brother of that or a cousin of that. So, wow. Why would they file that? Because that to me seems like something that might come in maybe in a penalty phase, if you're talking about possible testimony from a psychiatric expert or a psychological expert. It's certainly not, to me, something that would come in in your case in chief.

Starting point is 00:23:12 Well, every state has a definition for the parties to a criminal action. In other words, the defendant, the plaintiff, which is usually the state or the people of the state, and then certainly the victims and the witnesses, and they all have definitions. The definition of a defendant is not a psychopath. It is not a sociopath. If you go beyond the legal definition of the name parties, it can be very prejudicial. If you keep referring to Brian Koberger as a psychopath when he is presumed innocent, rather than the generic title given to him by the legislature, just by virtue of being accused, it tends to tilt the balance, if you will, in favor of guilt before you've even heard one shred of evidence. So I think it's inappropriate. It's unethical. Just like you don't refer to

Starting point is 00:24:05 victims as a defense attorney, as liars, as money grabbers, you know, as people out for their own interests. They are victims. They are witnesses. And you let a jury decide. Now, in closing, it might be fair comment by weaving in all of the evidence that was presented at the trial in characterizing the parties and the witnesses based on what is in evidence. And if that's the case, then at least it's not, I don't want to say inflammatory, but it's certainly not unethical. It's only unethical if you comment outside the record or if you comment on anything that has been excluded by the court. I think it's fair game to sanitize it, keep the party's names to what they are referred to in law rather than what you want to refer to them in social settings, if you will. And we are in a

Starting point is 00:24:59 legal setting, and I think it would be very prejudicial to refer to him as a psychopath. Yeah, most definitely. Well, we'll see how it all plays out. The defense is also looking to exclude that IgG evidence, the genetic genealogy, DNA evidence. Never. Yeah, it's interesting. There's a lot going on and they've actually brought their DNA expert, Bricka Barlow on as counsel now. So it's very interesting stuff, Philip Dubé.

Starting point is 00:25:30 Thank you so much for your time as always. Have a great day. And that's it for this episode of Crime Fix. I'm Anjanette Levy. Thanks so much for being with me. I'll see you back here next time.

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

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

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