Crime Fix with Angenette Levy - Bryan Kohberger Accuses FBI of Hiding Evidence in Fiery Hearing: 'Utter Nonsense!'

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. So if I talk about things that are in the affidavit, and if I talk about things that we're seeking that the state wants to hide, I think that's fair game for the public to hear. Fighting words from Brian Koberger's lawyer, Ann Taylor. She's accusing the FBI and the prosecution of hiding evidence from her team. To be clear, the state has nothing to hide. And the prosecution is firing back at a recent claim by the defense

Starting point is 00:00:35 about where Brian Koberger says he was the night four University of Idaho students were murdered. Thanks for joining me for Crime Fix. I'm Ann Jeanette Levy. For a while, things appeared to be pretty cordial between the prosecution and the defense in Brian Koberger's case, but things have become pretty heated lately. It seemed to go south during the fight over the defense conducting a juror survey, which they're still allowed to do after a big court fight. Now there's a big conflict over whether an upcoming hearing should be closed to the public. The prosecution wants the hearing sealed or closed, meaning only attorneys and court staff can attend, no members of the public, and certainly no members of the media.

Starting point is 00:01:16 There's information that Brian Koberger's defense team believes they're entitled to, and they haven't received it. And what exactly that might be kind of remains a mystery because everything related to discovery in this case is filed under seal. But Ann Taylor dropped a few hints. More on that in a minute. But first, Ashley Jennings, an assistant prosecutor for Latah County, argued about why she believes an upcoming hearing should be closed. Take a listen. So judge the applicable authority today and determining whether or not we should close the May 14th hearing is Idaho Administrative Court Rule 32 and Idaho Code 74-124. Both contemplate balancing this public right to

Starting point is 00:02:01 an open hearing versus the interest such as privacy, safety, and the right to a public trial or to a fair trial. In deciding whether or not to file the motion to close the hearing, the state weighed those interests and ultimately came down that the need to protect the privacy and the sensitive information and ultimately protect the state and defendant's right to a fair trial outweighs the right to an open hearing. Feel confident that when the court does the same balancing test, it'll come to the same conclusion. Jennings says the information that would be discussed in this upcoming hearing was discussed in a motion that was originally

Starting point is 00:02:41 filed under seal, so the public couldn't see it. Now the defense wants it discussed in public. Now the defense is taking a contradictory position and asking the court to ignore all the previous filings, and this is just entirely inconsistent. To be clear, the state has nothing to hide. However, it's crucial that we protect, as we have been trying, the integrity of this case and that we protect, ultimately, the right to a fair trial. So let's look at the factors. Balancing a public's right to an open hearing and the party's right to a fair trial. So Ashley Jennings kind of has a point there. It does seem inconsistent. Here's Ann Taylor's response to that. It's been brought up that we've filed a lot of documents

Starting point is 00:03:31 under seal. We have. We have. Those are documents that end up in the public record that thousands of people can read. And we file those under seal for expediency and saying, this is exactly what we want from discovery. If the court looks at the documents and the court can, and probably has through the year and a half, this case has been pending. There are a lot of names and specific bits of information in there. And so for expediency, we file those under seal and for the reasons outlined in Idaho Court Administrative Rule 32. But what we're talking about now is a public hearing. When the state has decided to not give

Starting point is 00:04:12 us information or to drag their feet on giving us information, we're talking about a public hearing where we have a right to be in the public eye of public hearing. Brian's the one with the right. It's his Sixth Amendment right to have a public hearing. When the state wants to close a hearing or any party and the other party objects, which we do, the court is guided by case law. You're going to get no argument from me when it comes to keeping courtrooms open to the public. I've been covering courts for a really long time and closing courtrooms in criminal cases is really rare. It really doesn't happen often. It should be done out in the open, the court's business. But the defense kind of brought this on themselves to a degree. They didn't even want cameras in the courtroom. They've agreed to file things under seal.

Starting point is 00:05:00 And now they want things out in the open again. And I'm all for that. The prosecution had this to say about what could happen if the hearing were to be open to the public. If the court decides to open this hearing to the public, the state defense will be discussing evidence without any context. This will undoubtedly fuel speculation, lead to assumptions and false narratives. The evidence discussed may not even be offered and most of it likely will not be offered by either party or tribe because it's either not relevant or material. The public will not have any means or context

Starting point is 00:05:40 to be able to differentiate that. So this probably has you wondering, what is this information and why is it so important? Well, some of it has to do with video from the area of the King Road house on the night of the murders. Another example of this, Your Honor, is with the video tape that they've relied a lot on in their probable cause affidavit that we've received different parts of. Part of the hearing on the 14th is to talk about the different parts of that video that we've received and how we need the whole context. This is the video that they say places this car near the residence. We've received little tiny pieces of that. And we think Brian's right to a fair trial means the public needs to know that they've withheld the audio from a great portion of that and that it starts a long time before the little clip that we've received. To do this in a

Starting point is 00:06:42 vacuum, judge, when documents are filed under seal, that's fine. Those are documents, but this hearing needs to be in the public eye. Remember, that video is really important because originally the FBI analyst said the car was a white Hyundai Elantra and it was a model made between the years of 2011 and 2013. But the probable cause affidavit said that changed. The analyst went back and looked again and decided that model could have been made between 2011 and 2016. Koberger drove a 2015 Hyundai Elantra. Brian has been essentially convicted in the media. You don't have to read but a few articles to see how negative they are about him. He has a right to have this information withheld, brought out in public, so that people can see it's not

Starting point is 00:07:32 this neat little package. So people can start to wonder if Brian's innocent. Your Honor, Brian is innocent. And he has an absolute Sixth Amendment right to have his hearings in public. There's also other information the defense wants related to cell tower records. But that order was to protect information, the IGG information, that they say details how the state got to Brian in the first place. That's been sealed. That's fine. We respect that. But you have to question, why can we not talk about the things they're not giving us? Why can we not talk about the cell phone information, the tower information, the drive test information in a public arena? Why should Brian have to have his case when he's asking for this information be done in a little vacuum where the state says what the public can

Starting point is 00:08:22 hear and what the public can't hear? One of the things that Ann Taylor wants is the FBI's CAST report. I spoke with retired FBI agent and attorney Bobby Chacon about the CAST report and what that is. Yeah, the CAST is the cellular analysis survey team. And that report would be the data of Kohlberger's cell phone movements that the FBI provided that assistance to Idaho for this case. It is an interesting situation because the FBI is not a party to this process. They're not a party to this proceeding. So they're not in court at these hearings. So it's almost like the court either has to compel the FBI to come in and provide that or compel the state to get it from the FBI. And I would assume that's what the defense is going to try for, to have the court compel the state to get it from the FBI, whatever it is

Starting point is 00:09:14 that they want. Or they can, you know, I mean, I guess they could subpoena the FBI into court, the FBI agents into court to provide that information and or testimony about it. But I think that CAST in recent years has claimed to have technology that can greatly increase the accuracy of cell phone triangulation data much more accurate than was previously done in the past. That actually, though, is subject to some controversy. There are some experts in that field that push back on the FBI's claims of how accurate that can actually be. Now, as we know, the prosecution is relying heavily on cell phone information in this case, and so is the defense.

Starting point is 00:09:58 Absolutely. Absolutely. Because not only is it a big part of his alibi, but it's also a big part of the prosecution's claims that he was at that house, not only on the night of the murder, but maybe on previous occasions as well. So I think that cell phone data is going to be a huge piece of the evidence in this case, both for the defense and for the prosecution. So, you know, for his alibi and for their theory of the case that he was in that area, you know, again, on the night of the murder and previously. So I think that there, you know, you have the DNA on the ninth sheet, you have the

Starting point is 00:10:30 witness that was left alive in the house, and you have the cell phone data. Those are the three big pillars here, I believe. And so I think that that cell phone data is definitely going to be heavily contested, both in these pretrial motions and hearings and at the trial in front of a jury. I think you're going to have a lot of expert testimony come in. It's going to be kind of a battle of the cell phone experts in this case. I want to take a short break from this update on Brian Koberger's case to tell you about something that can help you learn more about the people in your life. It's a great website, and it's called truthfinder.com. Truthfinder is one of the world's largest public record search services. Truthfinder has one goal, and that's to help you and me learn the truth about

Starting point is 00:11:15 the people we meet each day. Here's how it works. Simply log on to truthfinder.com and put in a name. Within minutes, maybe even seconds, you will get reports that include phone numbers, addresses, friends and family members, criminal records, and much more. It will also show you sex offender statuses for people who might live in your neighborhood. The cases that I cover each day make it clear that you have to do everything you can do to keep you and your loved ones safe. So right now, Crime Fix viewers can get 50% off of confidential background reports. Just log on to truthfinder.com slash lccrimefix and start accessing information about almost anyone. That's truthfinder.com

Starting point is 00:11:59 slash lccrimefix. The defense has already said it will call an expert, Cy Ray, a retired police officer, to testify about Brian Koberger's cell phone and the fact that his analysis says it was in Pullman, Washington and not Moscow on the night of the murders. The defense plans to use Ray to back up Brian Koberger's alibi that he was out hiking and or running and looking at the stars. So where is this cast report? We're happy to. And when we get the cast report, we'll disclose it. If we do not have it, we are not withholding it. As simple as that. I read that last night.

Starting point is 00:12:35 Okay. Your Honor, I do have several other examples, but in light of what the court said, I won't provide them right at the moment. There are other issues. I understand. And I understand your frustration. And it's a big deal. It's been before.

Starting point is 00:12:53 I understand that, too. And I acknowledge that. Sometimes, you know, we just can't quite get what we want from other people who might have it that don't want to give it up. So that's that's one of one of my challenges on the 14th. So there is something that both Judge Judge and Taylor consider to be a big deal, but they're dancing around it in public. They won't come out and say exactly what it is. But things have become a little too tense between the defense and the prosecution for judge judges liking. Take a listen. I trust both of you. OK, your integrity.

Starting point is 00:13:38 So I don't want this pointing the fingers back and forth. I don't think it's very helpful. It doesn't really help me. And, you know, it started at the last hearing. And I really want you all to just tone it down a little bit. I mean, you can argue all you want, but when it starts to be personal, it's destructive. I mean, you're really, really good lawyers. So let's just focus on the issues. So this is the second time just recently that Judge Judge has told both sides to basically chill out.

Starting point is 00:14:22 I do, for the record, need to clarify the representations of the defense that we are intentionally withholding things that they're entitled to is just utter nonsense. We have strived. We are continuing every week to provide additional discovery. We have more discovery coming. We hope that much of what they felt they had to file a motion to compel on instead of being patient and wait because our discovery deadline isn't until September. That we'll have and be able to make that available

Starting point is 00:14:51 between now and the hearings on the 14th. And there may very well be little of anything we have to fight about. Your Honor also noted, there are some things that we simply do not have the power to access. And we are trying, we have been trying consistently through cooperative efforts,

Starting point is 00:15:08 as well as following the process with the federal government. They have been good partners, but they have their own rules to work with. This is the motions for the subpoenas due to Steak'Em isn't the first TUI process and the court is aware. We've been pursuing TUI process for all types of information for months. So the characterization that we are just consciously withholding information to

Starting point is 00:15:30 frustrate the defense is utter nonsense. That is not true. We will provide everything we can that is provable under the rules. So Judge Judge said he will seal that upcoming hearing on May 14th where this motion to compel discovery will be heard. And he said there could be a portion of that hearing that could be open to the public. He'll just have to wait and see. He's also going to sign some subpoenas for the FBI to try to get this information that the defense wants. And remember that alibi information that Brian Koberger submitted to the court? Well, the state is asking judge, judge to reject that information. They're saying they've been prejudiced and haven't had an ability to investigate it properly because it's not specific enough. And if Brian Koberger wants to offer an

Starting point is 00:16:15 alibi, the prosecution said the only reason he should be able to is if he takes the stand because he doesn't have anybody who can say he was anywhere else but the scene of the murders that night. Here's what former prosecutor Andy Wilson said about Koberger's alibi information when we spoke about it recently. Well, first of all, the Idaho Criminal Code requires that if you're going to use an alibi defense, you have to file notice of it. This is part of that process. And the whole idea is to put the prosecution really kind of on notice of what it is you're going to try to say. So they can prepare to present rebuttal evidence to deal with whatever that defense is going to be. So typically, from a prosecution point of view,

Starting point is 00:16:59 what you'd like to see with an alibi is, or with a notice of alibi, is some level of specificity. And what I see here is this is just kind of a general plea. Hey, the defendant was out in the country in the middle of the night looking at the moon, looking at stars. Again, from a prosecutor point of view, I certainly would respond and ask for more specificity. I would ask for specific witnesses who may be able to prove his comings and goings. They did list a witness that they're going to try to use to show where he was through phone records, but I just don't think that that's probably general enough to do what you have to do with respect to the alibi. Yeah. I mean, I think they're going to want a specific person who can actually testify to this.

Starting point is 00:17:49 That's what I'm guessing they mean by a witness, a person that can put you there. I'm also here seeing that they say he was at this favorite spot of his. It's Hawaii Park. And that this became a favorite spot of his as he moved from Pennsylvania to Washington in June of 2022. This is somewhere he frequented. He was a night owl, so he would frequently go on these drives. And he actually had photos, including in November of 2022, at the same month of the murders, of the sky and of the moon and the stars. So this guy's out and about at night, late at night in the early morning hours, according to the defense, taking pictures of the stars and the moon at this park. So does that help him that this is somebody who is out and about at times in the middle

Starting point is 00:18:42 of the night? So I don't think it does. Again, it doesn't provide enough specificity to actually prove that he was somewhere else at the time of the murders. As a matter of fact, when I prosecute cases, I like the notice of an alibi because it kind of tips the defense's hands. It kind of shows me what they may or may not do with respect to the case. And there's a couple of different things I look for. Number one is you can get a notice of alibi that shows that your defense is going to be, you're just going to throw anything you can against the wall. So, and again, that's kind of what you see here. It's just kind of an absurd

Starting point is 00:19:23 story. This guy likes to just go out in the middle of the night and take pictures of the moon and the sky. And look, I'm not saying he does that, but you also have to deal with the fact that his DNA is in the scene. You've got to deal with the fact that he drives the exact same car that we know is over in the area of the murders. And just to say that he was out, you know, the exact same night of the murders, and he's out just driving around the countryside, it's just absurd. The other thing that I look for with respect to a notice of alibi is a lot of times it can kind of indicate whether or not the defendant's ultimately going to testify in the case. Because I've seen alibi notices where, look, the only not the defendant's ultimately going to testify in the case.

Starting point is 00:20:12 Because I've seen alibi notices where, look, the only way this alibi is going to be able to put forward is if the defendant takes a stand. And what you're seeing here is they put this expert that they're going to try to use to show the phone records. That indicates to me that, again, I don't think this defendant's going to testify. Koberger maintains he did not murder Maddie Mogan, Kelly Gonsalves, Ethan Chapin, and Zanna Kernodle in the house on King Road on November 13th of 2022. So we will keep an eye on all of this and keep you up to speed on the latest developments. That's it for this edition of Crime Fix. I'm Anjanette Levy. Thanks so much for being with us. We'll see you back here next time.

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Crime Fix with Angenette Levy - Bryan Kohberger Accuses FBI of Hiding Evidence in Fiery Hearing: 'Utter Nonsense!'

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Crime Fix with Angenette Levy - Bryan Kohberger Accuses FBI of Hiding Evidence in Fiery Hearing: 'Utter Nonsense!'

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