Crime Fix with Angenette Levy - Bryan Kohberger Fights for Cell Phone, Video Evidence in Idaho Murders: 'It's Exculpatory'

Episode Date: June 3, 2024

Bryan Kohberger was back in court with his lawyers asking for video evidence and cell phone records that he wants to use to prepare for his trial. Kohberger maintains he didn't murder four University of Idaho students on November 13, 2022. Prosecutors have said they have given the defense everything that they have. But, the defense believes they have more they haven't shared. Law&Crime's Angenette Levy has details from a recent hearing where Kohberger's cell phone expert and the lead detective testified in this episode of Crime Fix — a daily show covering the biggest stories in crime.PLEASE SUPPORT THE SHOW:Download EarnIn today in the Google play or Apple app store. When you download the EarnIn app type in Crime Fix under PODCAST.Host:Angenette Levy  https://twitter.com/Angenette5CRIME FIX PRODUCTION:Head of Social Media, YouTube - Bobby SzokeSocial Media Management - Vanessa BeinVideo Editing - Daniel CamachoAudio Editing - Brad MaybeGuest Booking - Alyssa Fisher & Diane KayeSTAY UP-TO-DATE WITH THE LAW&CRIME NETWORK:Watch Law&Crime Network on YouTubeTV: https://bit.ly/3td2e3yWhere To Watch Law&Crime Network: https://bit.ly/3akxLK5Sign Up For Law&Crime's Daily Newsletter: https://bit.ly/LawandCrimeNewsletterRead Fascinating Articles From Law&Crime Network: https://bit.ly/3td2IqoLAW&CRIME NETWORK SOCIAL MEDIA:Instagram: https://www.instagram.com/lawandcrime/Twitter: https://twitter.com/LawCrimeNetworkFacebook: https://www.facebook.com/lawandcrimeTwitch: https://www.twitch.tv/lawandcrimenetworkTikTok: https://www.tiktok.com/@LawandCrimeSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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're getting an inside look at the investigation into the murders of four University of Idaho students as the lead detective takes the stand to answer questions about evidence that the defense wants but says it doesn't have. Plus, a defense cell phone expert testifies and drops a bombshell. Thanks for joining me for Crime Fix. I'm Anjanette Levy. Brian Koberger was back in court as his lawyers asked Judge Judge to order the prosecution to turn over evidence that they want to see ahead of trial. And I want to be clear about this.

A trial date in this case has not yet been set. The prosecution maintains it has already given the defense everything it has as far as evidence goes, and they plan to give them more once they receive it. But the defense seems skeptical about that. They filed motions asking Judge Judge to compel the prosecution to turn over many, many pieces of evidence that they believe exist. In fact, they've accused the prosecution of helping the FBI hide evidence in a prior hearing. Koberger, of course, is accused of murdering students Maddie Mogan, Kaylee Gonsalves, Ethan Chapin, and Zanna Kurnodal back in November of 2022. Koberger says the state has the wrong guy. During the most recent hearing, the focus was on cell phone records and surveillance video collected during the investigation. The lead detective on the case,

Moscow Police Corporal Brett Payne, took the stand to answer questions from the defense about Brian Koberger's cell phone records. The murders happened back on November 13th of 2022. Police got a search warrant for Brian Koberger's cell phone records on December 23rd, a little more than a month later. Memory serves the first time I signed cell phone records related to Brian Koberger was after we received the return from the first search warrant. Just to be sure, I'm tracking with you. When you say the return from the first search warrant, we're talking about the first AT&T warrant. Yes. Is that right? That's correct. And in that warrant, you were seeking 48 hours worth of records. Is that right?

Yes, ma'am. So if I call those 48-hour records, we'll both be on the same page? Yep. All right. So police requested records for Brian Koberger's cell phone for a 48-hour period, and Payne's testimony revealed that within a matter of a couple of hours, he went back to the judge and requested a second search warrant for Brian Koberger's cell phone records that covered a longer period of time. Is there anything else you relied on to obtain that second search warrant to compose your affidavit? Like I said earlier, we relied on

cell phone records from surviving roommates as well as the victims. We relied on interviews with the two surviving roommates that were present at the time. We relied on the surveillance footage, cell phone data. I'd have to go paragraph by paragraph, but that's what jumps to mind. Of those things, are you relying on other people's work to put that all together? Yes, ma'am. Well, you might be asking yourself, why does this matter? Well, the defense says it's important because police relied on those records to develop a theory of the crime that included Koberger as the prime suspect, the person they would charge with murdering the four students. Ann Taylor brought up this map from the probable cause affidavit that showed a possible route of

travel that Payne believed Coburger could have used to leave the home on King Road to travel south through Moscow and back to Pullman, Washington, where Coburger was living at the time. Coburger's cell phone records were used to develop that path. That one would appear to be a trail or a path from south of Moscow back towards Lewiston or back towards Poland. Is that right? Yes, ma'am. Where did you get that now? Same thing. It was just created using open source satellite imagery and I think it was PowerPoint.

Did you create that? Yes, ma'am. created using open source satellite imagery and I think it was PowerPoint. Did you create that? Yes, ma'am. Where did you get the information to draw that trail? So that was used from the cell phone records referred to me by Special Agent Balance on his interpretation of possible places where someone could have driven between the location that starts there and then back to Golden. So you did this on some open source mapping, not anything from Nick Balance creating

a visual for you? No, ma'am. I did view a draft report from Special Agent Balance to help me conceptualize this, but it did not look like this, Matt. Where is that draft report? It is, best of my knowledge, it's already been provided to the prosecutor's office through the FBI channels. Is this the lengthy past draft report, or is it a different draft report? My, well, it would have to be the draft cash report. That's the only cash report I'm aware of

from Special Agent Ballas. So on December 23rd, are you saying you looked at this past draft report to make that map that went into your app, David, to get the second set of records? Yes, ma'am. The one that was given to us in July of last year? I don't know when you got it. How many versions of that cast draft report have you seen? I've only seen that one, ma'am. That's the only one I'm aware of. This path was developed after police received those cell phone records back on December 23rd. Now remember, Koberger was taken into custody in the early morning hours of December 30th,

about seven days later. We're left to conclude that the cell phone records were requested after Moscow police received Brian Koberger's name from the FBI after they used genetic genealogy to identify DNA found on the knife sheath found at the crime scene. Now back to those cell phone records and Payne requesting more of Koberger's cell phone records. Was there anything else from AT&T that you saw or relied on to get the second one off the ground? No, ma'am. And in the first AT&T search warrant, are you aware that part of the request was for timing advance reports? Yes, ma'am. And in fact, that also appears in your second search warrant request, right?

Yes, ma'am. All right. And not only do you ask for the timing advance reports from AT&T, you ask for them from several other companies, correct? Verizon's version of it, T-Mobile's version of this kind of timing advance report. Is that right? Yes, ma'am. All right. When was the first time you saw AT&T's timing advance report?

I do not recall when I first saw it. Where is it? To the best of my knowledge, all of that information from those returns has been provided to the prosecutor's office. If I tell you I don't have a timing advance report or any from the other phone companies, where do I look for them? I would direct you back to the prosecutor's office. Everything that Moscow PD received, in that realm, we have turned over to my knowledge. But you know you've seen this report, is that right? I do not recall if I've seen the timing advance reports. I'd have to see what it even looked like to know if I'd seen it.

Do you know what it is? Not particularly. I'm no expert. Okay. You wrote the search warrant, though, right? Yes, ma'am. Well, how did you get the language for that if you don't know what this is? So there's no secret that I rely heavily on people who are very highly educated in these topic areas to write the search warrant. So that language was likely conveyed to me through people who know much more than myself about cell phone data. Who are those people?

Like I said, FBI agent Balance and Detective Mowry were probably my two main points of contact for helping me with that language. Judge Judge heard testimony from Detective Mowry nearly two weeks ago. He testified about helping with the cell phone records. And agent Balance from the FBI, as you heard, also analyzed those records when the police received them. Brett Payne readily conceded that he's not an expert in that area, and he used information that Balance and Mowry gave him when applying for search warrants. Is there anything else you relied on to obtain that second search warrant to compose your affidavit? Like I said earlier, we relied on

cell phone records from surviving roommates as well I said earlier, we relied on cell phone records from surviving roommates as well as the victims. We relied on interviews with the two surviving roommates that were present at the time. We relied on the surveillance footage, cell phone data. I'd have to go paragraph by paragraph, but that's what jumps to mind. Of those things, are you relying on other people's

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Ann Taylor has said there's additional information that she needs related to Brian Koberger's cell phone records that she doesn't have. Payne said everything that he has has been turned over to the prosecution, while prosecutors say they've given the defense everything that they have. Specifically, Ann Taylor wants the cellular analysis survey team report prepared by the FBI. Payne said he saw a draft report of it back on December 23rd, and that was it. Meanwhile, back when Detective Mowry testified nearly two weeks ago, he said that he had found some files from the FBI in his email that he turned over to the prosecution, and Ann Taylor now has those documents. But is it what she's looking for? She hasn't said.

Ann Taylor's cell phone expert Cy Ray later took the stand, and she asked him about police requesting cell phone records twice in one day for Brian Koberger back on December 23rd of 2022. In your experience with working with AT&T records, is it common or uncommon to have two warrants, one that relies on the content of the first and the same day? It's not uncommon to see a small time period that produces results that would increase the desire or the need for a bigger time period of records. Seeing that entire process happen twice in the same day is extremely rare.

When, well, the first AT&T record, we called it today the 48-hour AT&T record of Brian's call detail record. If you were to take that and do an analysis on a call detail record, how long would that take? Depends on the analysis. So I'll qualify that answer with looking at what was put into the second warrant that shows us at least parts of that analysis to include a route that was identified. To do it reliably and feel comfortable that I'm accurate, at least three hours. And that's if you know what you're doing and you have all the tools at your disposal. Arguably, you could spend half a day of working that very easily. So that's interesting.

Cy Ray used to be a police officer, and he's saying that analyzing cell records can take up to half a day, not just a couple of hours. And this isn't the trial, of course, but she's laying the groundwork to say that police rushed to judgment and focusing in on Koberger solely. And remember that FBI cast report, the draft report that Payne

said he saw back on December 23rd of 2022? We've heard about it a lot. Cy Ray doesn't believe that that was available back on that date, the day Brian Koberger's cell phone records were requested. It's my opinion that Corporal Payne probably is misusing some terms there. I don't see any possibility of the FBI CAS team producing a CAS draft report on the 23rd. I think he's probably mistaken that he saw some type of CAS work product, which would be this math, before they export all those results into a report. So I believe that he probably saw some mapping through a mapping platform. It would really surprise me if there was a physical report.

It would be completely out of character. There's been a lot of discussion about the defense not having what they need to prepare for trial. Cy Ray actually talked about what they have and what they don't have. You just told us that you think we have most of it, but there's some significant parts that are missing. Yeah, and I want to qualify that just so it's really clear because I understand it's starting to get very technical. There's over 500,000 lines of data that was turned over.

So I'll make it clear. There's a lot of data that has been produced. I would say, in my opinion, looking at what's been produced, probably two or three percent is missing. But it's not the amount of data or the time of the data, it's the locations of the data. Some of the most significant locations in this case're missing some data. Those significant locations, have they been depicted or captured on the CAST draft report? They have. And tell me what those locations are. What are we missing? I am unable to find any measurements

along, I believe it's 270, the Moscow Pullman Road. If you drove the most direct route from Pullman to Moscow or vice versa, pretty much as soon as you're leaving Pullman to the time that you arrive in Moscow, we are missing that entire stretch. If there's ever been a case that we need to look at what does it look like when a phone travels from Pullman to Moscow, this is probably the case. We have the neighborhood around the crime scene, but we don't have the crime scene. Normally that wouldn't be too terribly significant because if it's a flat area, there's not a lot of vegetation or mountains, you could probably interpret the same. The location of this crime scene is very unique because it sits on a mountain. Part of it is shielded by a mountain. There's a lot of other big, dense apartment buildings there.

Your phone is going to behave differently inside of that residence than it might on the road behind the residence or in front of the residence. I can't find any drive test data that actually encapsulates any part of the property. Cy Ray, a former police officer, was actually pretty critical of how Brian Koberger's cell phone records were used in an affidavit to support his arrest on these murder charges. This is specifically from 2 a.m. to 6 a.m. on the morning of the 13th, arguably the most critical time period of this entire investigation. They mapped a handful of connections. When I say a handful, they mapped a handful of connections. When I say a handful, they mapped 18%. When you add the other 82%, it tells a much more detailed story.

When we put the drive test data on top of that, you can get even more refined. But to answer your question on any case, that's this case. On any case, and we teach best practice, we've established best practices going back to 2008 in law enforcement, what you do with this type of data. It is a terrible practice to justify probable cause for this very detailed, call detail records that give breadcrumb-like trails for individuals and then not map it. We justify an entire product cost statement saying we have to have this. Not mapping it and then making decisions and work products with leaving that out is extremely problematic. And now to the bombshell that I referred to earlier, although he qualified it a little bit. Take a listen. Everything that I've seen to date is concerning to me because it's exculpatory. And I want to,

I need to clarify this. When all of the records are produced and the dust settles and I have time to review it, I reserve the right to say, no, now I'm seeing everything. Here's what I'm seeing. Because of the piecemealing of the data, because of the missing data, because of data that I'm reviewing that is incredibly inaccurate, everything that is missing is absolutely in the benefit of the defense right now. There's other reports that I believe are missing that I can't tell you are in the benefit of Mr. Kovrigor or in the benefit of the state. If I was contacted on December 1st by Moscow Police Department, there are things I would have absolutely said, you get this today, do not hesitate, especially come December 23rd. Not because of who it's helpful for, but because

those documents are the only things we're going to give that's going to be able to allow us to interpret what it really means. When we don't give those documents and we piecemeal things, it creates this narrative that is very harmful for the defense's case. As I've got more documents, I'm finding it's not harmful for the defense's case. There's a lot of misstatements that have been made. So yes, to your question, to date, it is very helpful for Mr. Koberger. I reserve the right to change that opinion in six months, depending on what type of documents are released and what's out there. Wow. So you heard Ray say what he's seen so far clears Koberger, but he did say he reserves the right to change that opinion.

And he said earlier that he typically testifies for the state, not the defense. In fact, this is the first time he's ever testified for the defense. Now back to the collection of video evidence. The defense is asking for video evidence that was collected that they believe they should have, but don't. I want to talk a little bit more about the video and what's been turned over and what hasn't been turned over to us. And I want to focus a little bit on South US-95. Do you recall that South of Moscow on US-95 is the path that you put in your search warrant affidavit alleging that Brian Koberger left Moscow going south on US 95? Yes, ma'am. that one of the videos that you gave us, the coffee shop there on South 95,

that leaving Moscow, you'd have to pass that, that that covers 5 a.m. to 6 a.m. I do not recall the time correctly. And so the time frame in these videos would matter, right? Certainly. The time frame in the videos to be meaningful would need to cover a time that surrounds the allegations against Mr. Koberger. Is that fair to say? You can say that, yes. Okay. And are you aware that Wasson-Carrie Construction had a video, and that also has a very limited time frame, like 5 a.m.?

Just one hour of video also? Sounds vaguely familiar, yes. And that's also south on Highway 95, is that right? Yes, ma'am. And the one we talked about today, Monday's Machine, that nobody could find, that clearly was given to Moscow Police Department. That's also south on 95. Yes, ma'am. Okay. So Ann Taylor is basically saying they've been given a lot of video from that route that police believe Brian Koberger took the morning of the murders, leaving the house on King Road, but it doesn't cover the right timeframe according to the state's timeline. And it doesn't sound like she has some video

that she believes she should have and is clearly looking for. I understand that you had a lot of help on canvassing and collecting things. There was a lot to do. But as the lead agent and the lead department, is there some kind of inventory of these videos, like a general inventory that would help me know what you have and why you don't have the relevant timeframes? The inventory that would be most useful to you is the inventory of evidence that had been booked into the Moscow Police Department. That's the inventory.

And I did come see the evidence. That's fair. I did come see the evidence. We didn't watch videos together, though, did we? No way. And would you agree that that evidence is on thumb drives with stickies on papers that tell us different things, but not like an inventory of what's on each thumb drive? I am not aware of an inventory of each individual's own drive. Okay. So for us to do

that together would take some days to inventory it all together. Is that right? Yes, ma'am. And that's my best way to try to find this Monday's machine. Sure. And Wasson-Carrie Construction. Yes, ma'am. Okay. That's it. Thanks. But the prosecution says this video that the defense wants may not mean very much in the end. Does your probable cause affidavit state that Cove River or a white Elantra went on US 95 south of Moscow? No, it does not. Okay. What does it state? Memory service states that the next time, well, it states that a vehicle was seen leaving the area of the crime scene, McKinroy, leaving Via Volenta Drive, which heads south from that area, and then terminates on Conestoga and Blues River Drive. That's what the probable cause of death of the state is.

And to your knowledge, are there other paths of travel south of Moscow besides US-95? Yes. And Taylor then countered that assertion with another question. Are you testifying that Mr. Koberger did not use Highway 95 south of Moscow on November 13th? I'm testifying that there are various routes that a person could take south of Moscow to include Highway 95. There are also several others. Which one does your map depict? I believe the map starts well south of Moscow or more towards Genesee and there is the line that starts there. However, I'll direct you to the paragraph at the beginning of the map that says this is a possible route to travel to two locations. So you're just not sure? Yes, ma'am. Okay. That would include then Highway 95 south of Moscow.

Yes, ma'am. And that would include other possible routes? Yes, ma'am. How many video surveillance attempts did you make to get video from businesses or homes on all of those routes? I do not recall, but it continued for some time, attempting to find additional video footage. So she's trying to pin down Detective Payne, and he said he doesn't know what route Brian Koberger traveled that morning. This will certainly come up later as the case moves forward. And the defense has said they will move to suppress some evidence,

meaning they'll ask judge judge to bar the jury from hearing about it at trial. 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.