Crime Fix with Angenette Levy - Bryan Kohberger Judge Makes Huge Decisions in Death Penalty Case

Episode Date: April 28, 2025

The judge presiding over Bryan Kohberger's death penalty case has issued some major decisions ahead of trial including keeping the death penalty in place despite Kohberger's autism diagnosis. Judge Steven Hippler revealed new details about the case as he made decisions about the 911 call, text messages between surviving roommates and expert testimony. Law&Crime's Angenette Levy goes over the new information in this episode of Crime Fix — a daily show covering the biggest stories in crime.PLEASE SUPPORT THE SHOW: Download the FREE Upside App at https://upside.app.link/crimefix to get an extra 25 cents back for every gallon on your first tank of gas.Host:Angenette Levy  https://twitter.com/Angenette5Guest: Philip Dubé https://x.com/PhilipCDubeProducer:Jordan ChaconCRIME FIX PRODUCTION:Head of Social Media, YouTube - Bobby SzokeSocial Media Management - Vanessa BeinVideo Editing - Daniel CamachoGuest 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. The judge in Brian Koberger's case makes a major decision on the death penalty and reveals new details about the night of the murders and what a roommate saw as Keely Gonsalves' father also reveals new information about the case. There was more to what had happened to them in that bedroom. I look at the judge's orders and every new detail. Welcome to Crime Fix, I'm Anjanette Levy. Brian Koberger's second attempt to get the death penalty stricken as a possible punishment for the murders of four University of Idaho students has failed. Koberger's lawyers argued he has autism spectrum disorder, and because of that diagnosis, that means he is intellectually disabled.

And so he should not qualify for the death penalty because of precedents set by the United States Supreme Court. But Judge Hippler disagreed. I'll go through what Judge Hippler said in his order about the death penalty and new details that he revealed about the night of the murders as he makes a decision about whether the jury will hear the 911 call and text messages between the surviving roommates from that morning. But first, to that decision about the death penalty. When Koberger goes on trial this summer for the murders of Maddie Mogan, Kaylee Gonsalves, Ethan Chapin, and Zanna Kernodle, the death penalty will be on the table as a possible punishment. Koberger maintains he didn't murder the four students by stabbing them

at the house on King Road in the early morning hours of November 13th, 2022. Brian Koberger was a PhD student in criminology at nearby Washington State University, and he's been described as intelligent by those who knew him. Experts hired by his attorneys to evaluate him agreed, and they said he has an IQ of 119, so he's a pretty smart guy. But they also diagnosed him with autism spectrum disorder, level one specifically, which is the highest functioning form of autism. It used to be called Asperger's syndrome. Koberger's attorneys argued that level one autism diagnosis should make him ineligible for the death penalty. Attorney Alyssa Masseth made her argument at a hearing

earlier this month, citing the U.S. Supreme Court case Atkins v. Virginia. Four impairments in Atkins which apply here are A, less able to give meaningful assistance to their counsel. B, demeanor may create an unwarranted impression of lack of remorse for their crimes. C, typically poor witnesses, and D, mitigating evidence of ID can, quote, be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. All four of these impairments apply to ASD generally and to Mr. Koberger in particular. As to Luss' ability to give meaningful assistance, extremely rigid thinking, he perseverates on specific topics, processes information on a peaceful basis, struggles to plan ahead, and demonstrates little insight into his own behavior and emotions. Masseth continued, basically telling Judge Hippler that Brian

Koberger can't help them prepare his defense. He may understand the definition of mitigation, but he has no ability to assist us and understand what might be mitigating and why. The impairments that he has go all the way back to his very young years where he walked on his tippy toes, rocked on all fours for extended periods of time, could not engage in imaginative play, wrote his fives upside down and backward. He was provided with extensive supports in school. He was evaluated for ASD, but not properly diagnosed. And bring that to current time where he is at age 28, where he has few personal relationships. He does not have any insight into things like the

fact that he once volunteered at the Special Olympics is mitigating, or that he helped save someone's life on the job, and that's mitigating. He can see the logic in the word mitigation, but he has no ability to understand and help us develop a case for him for mercy. His demeanor, he has a limited range of facial expression, odd eye contact and intense gaze with subtile rocking, sitting very still. This is important because of the impact that jurors assigned and give tremendous weight to perceived remorse or the lack thereof. I want to tell you about a free

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That's promo code CRIMEFIX for extra cash back. She also said that unfair media coverage of Koberger was another reason to strike the death penalty. You know, if we didn't have two and a half years of media coverage to know how Mr. Koberger's physical presence has been perceived, the state might have a little bit more credibility with that argument that it's not relevant. But we have extensive media coverage that refers to him as evil, as an incel, as looking like a monster with very dark eyes, and it's all based on their analysis of him sitting in the courtroom. Pardon? None of that is his autism spectrum, what you just mentioned. But his physical presence is what the media has been judging,

which is the same thing that a jury is going to do. So my point is that for the state to say that it's not relevant, we actually have in this situation the ability to point you to the fact that that is not true. Because what the media has done, I mean, there are even before the cameras were cut out of the courtroom, there were all kinds of zooming in and stories with experts doing body language studying about him, including the fact that this is how he holds his hands, and there's details about that. So it's disingenuous to say that he's not going to be judged by his appearance. That is exactly what jurors are doing. They're judging the evidence. They are staring at the accused.

They're looking for an accused to be remorseful and emotional at evidence that makes everybody else feel bad. And he is not capable of doing that through no fault of his own. Now, as you can imagine, the prosecution argued against striking the death penalty because of Koberger's autism. I want to start with the Atkins decision because the U.S. Supreme Court are the experts that this court is bound by, and that court specifically found in Atkins that there were two reasons why the individuals they were contemplating could not be subject to death. And it was sub-average intellectual functioning plus significant limitation in adaptive skills.

What the defense is asking is to eliminate that first critical component and look only at adaptive skills. Assistant Attorney General Jeff Nye addressed part of Koberger's argument that two states have listed some mental illnesses as a reason a person should not be eligible for the death penalty. Not a single state has said that someone with ASD cannot be executed. They cited two states in their brief to support their claim. Neither of them have laws that preclude this. In fact, their laws, both passed within the last five years, did add to the list certain mental illnesses, but they did not add ASD. That means those legislatures considered which mental

illnesses should we add to this list and rejected the idea of adding ASD. So that's not the national consensus that the defendant would need for this type of claim. Judge Hippler denied Koberger's request to strike the death penalty. Hippler wrote, in sum, not only has defendant failed to show that ASD is equivalent to an intellectual disability for death exemption purposes, he has not shown there is a national consensus against subjecting individuals with ASD to capital punishment. ASD may be a mitigating factor to be weighed against the aggravating factors in determining if a defendant should receive the penalty, but it is not a death penalty disqualifier. Judge Hippler also addressed the defense's claim that the media is demonizing Koberger because of his autism. As the state points out, however, there is no precedent for striking the death penalty due to media coverage.

Further, any concerns that arise from such media coverage can be mitigated through Wadir and from expert testimony and evidence during the penalty phase of the trial. And on what occasion of your emergency? Hi, something is happening. Something happens in our house. We don't know what. phase of the address? Oh, King Road. Okay. And is that a house or an apartment? It's a house. In Hipler's decision on the call and text messages, he wrote about that night and the roommates being at the King Road house. Hipler wrote,

At approximately 2 a.m., they met up in Kaylee's bedroom and talked for a while before going to bed. The fifth roommate, Zanna Kernodle, who was out with her boyfriend, Ethan Chapin, was not home yet. The roommates debated going out to a food truck for a late snack, prompting DM to send a text at 2.10 a.m. to an Uber driver she knew to see if he was driving. Ultimately, however, the girls decided to just go to bed. So that little bit of information paints such a sad picture for the roommates. Maddie and Kaylee, DM and BF, they were all hanging out in Kaylee's bedroom. You can almost visualize it. They were in Kaylee's room just hanging out, thought about going out to the food truck, but then decided to go to bed. None of them knew that about two hours later, surviving roommate DM would awake to strange sounds. Hipler wrote, at approximately 4 a.m., DM heard strange noises and crying

coming from the bathroom. She opened her door at one point and saw a man dressed in black with a ski mask on walking by her bedroom door. She then placed calls and texts to her other roommates to see if they were awake. Only BF, who resided on the ground floor, answered. They spoke once for 24 seconds, during which DM told BF she thought she heard something. The next time they spoke, Hipler said that one of the roommates testified at grand jury that she saw a man leaving the house wearing all black and a ski mask. That call was 41 seconds long. Then the roommates texted for four minutes between 4.22 and 4.26 a.m. DM wrote to BF, no one is answering.

DM followed up by saying, I'm really confused right now. DM then texted Kaylee, Kaylee. DM then texted BF, what's going on? BF said to DM, yeah, dude, WTF. BF wrote to DM. Zanna was wearing all black. DM then wrote to BF. I'm freaking out right now. DM followed by saying, no, it's like a ski mask almost. BF said to DM, STFU. DM then wrote to BF like he had something over his forehead and little in mouth. DM then wrote to BF. Bethany, I'm not kidding. I'm so freaked out. BF like he had something over his forehead and little in mouth. DM then wrote to BF, Bethany, I'm not kidding. I'm so freaked out. BF then wrote to DM, so am I. DM then wrote to BF, my phone is going to die. BF then wrote to DM, come to my room. BF wrote to DM, run. BF then followed with,

down here. DM then wrote to BF, I'm scared though. BF wrote to DM, yeah, I know, but it's better than being alone. Now, during those text messages, Hippler said that DM also tried to reach Ethan Chapin through Snapchat, and she also tried to call Kaylee and Zanna, but neither one answered. Judge Hippler wrote, DM then exited her room and began running toward BF's bedroom. On her way, she noticed Zanna lying on the floor of her bedroom with her head towards the wall and her feet toward the door. DM thought

Zanna was drunk. So this is the first time that we've heard that roommate DM actually saw Zanna lying on the floor but thought Zanna was drunk. DM ran to BF's room and they locked the door and both tried to call their roommates again, but they didn't answer. Hipler then wrote about what happened later in the morning. Between approximately 5 a.m. and 6.30 a.m., DM engaged in activity on her phone, primarily creating, editing, and deleting images and videos. Her phone activity then ceased until 8.05, when DM accessed Instagram for a few minutes. At 10 a.m., DM again accessed Instagram and communicated over Snapchat. At 10.23, she texted Madison asking, are you up?

She received no response. DM continued to access Instagram and Snapchat until 11.29 a.m. when she she texted kaylee are you up again there was no response which dm thought was strange because kaylee and madison were early wakers at 11 40 that morning dm's dad texted her asking about a time to chat and then a friend of dm's texted her then dm asked a friend to come over to help check the house that friend brought brought her boyfriend. Hipler says the friend and her boyfriend met DM and BF on the ground floor of the King Road house. Together, DM, BF, and H.J. started to walk up the stairs to the second floor. When they reached the second floor, H.J. went to the kitchen to grab a kitchen knife. When he came back out, DM saw Zanna again for a split second. And I just started

bawling because I thought she had just like, I don't even know. I thought maybe she was just still drunk and all asleep on the floor. This was from the grand jury transcript. BF also saw Zanna lying on the floor. Hippler continues. H.J. told DM and BF to get out. EA, who had started up the Hipler continues, about someone being unconscious. So the two roommates and the boyfriend of their friend, his name is Hunter, had already been up to the second floor where Zanna's room was located. Then they called 911. She's not waking up. Okay, one moment. I'm getting help started that way. In the end, Judge Hippler said he will allow the 911 call to be played for the jury, but parts will have to be redacted, including the neighbor telling the dispatcher that one of the roommates saw a man in the house last night and DM trying to say what happened at 4 a.m. Because those statements do not fall under the exception to the hearsay rule. have lost all of their attempts to keep experts from testifying for the prosecution,

including Heather and Jared Barnhart, two computer forensics experts who examined abnormal gaps in Brian Koberger's activity on his cell phone and his computer at Washington State University. Hipler wrote, the Barnhart's opinions regarding these topics are fully set forth in their joint report. For example, they observed gaps in defendant's school PC that may be consistent with cleaning up or using anti-forensic methods to clear evidence. Among the gaps found were in the PC's event logs and system resource usage monitoring between November 11, 2022 and November 16, 2022, which Barnhart's opined was abnormal given that school was in session. Likewise, they located gaps in the PC's Chrome history during dates where downloads occurred on the system indicating the user was private browsing or clearing browsing history. So the

Barnhart's believe Brian Koberger was either using or browsing Google privately or possibly wiped his browsing history. We already knew that he logged into his Google account using a VPN shortly after prosecutors say the murders occurred. We've also learned that an Idaho state police detective will testify that he conducted timed runs at the King Road house and believes the murders could have been carried out in two to four minutes. A defense expert, meanwhile, Brent Turvey, will testify that there were efforts to clean up the crime scene made by the killer or killers. And Turvey believes there were multiple weapons used against Kaylee, Zanna and Ethan, and that all of them were attacked at the same time, which means the defense is arguing there was more than one killer. The state,

meanwhile, has an expert who will testify that Maddie Mogan was so intoxicated that there was no way she could have fought back. Steve Gonsalves, Kaylee's father, appeared on the Drunk Turkey show recently and revealed the coroner told him that Kaylee was stabbed and harmed in another way. They were in the bed together. They had passed away, but she's seen markings and damages that made her suspect that there was more to what had happened to them in that bedroom. So, I mean, I'll say he struck my daughter. You know, I'll give that out. He punched her. And, you know, so for all those people who think he's a great guy, now he punched my daughter right in the face. I want to bring in Philip Dubé. He works as court appointed counsel in Los Angeles. So, Philip, I want your reaction. I don't think you're

probably very surprised to Judge Hippler denying the request to strike the death penalty because Brian Koberger has autism spectrum disorder. Well, he didn't meet the criteria under Atkins, meaning when you read the opinion and the orders, just because somebody has autism spectrum disorder does not mean that they are categorically exempt from the death penalty under the Eighth Amendment analysis, that whole line of cruel and unusual punishment jurisprudence. No. Instead, what you do is you look at it on an individual basis. If you cannot show as a Capitol defendant that you are intellectually disabled within that spectrum, you don't qualify. So not everybody on that spectrum qualifies. Now, instead, what he can do is he can amass all that evidence to show all his setbacks in life, to show his spectrum disorder during the mitigation phase if he's convicted during the penalty phase.

So all is not lost. But yes, there is still a lot on the line for the man. And he still really could get the firing squad. Yeah. And I just think, you know, he's level one. He's not somebody who's nonverbal. He may have some, you know, social impairments and things like that, but it just didn't fall, as you said, under the criteria. I mean, the Atkins decisions talking about people who are who are really mentally impaired and what they used to call mentally retarded. Exactly. Meaning you have sub average intelligence. And typically, if you have an IQ that's over 70, you are not intellectually disabled. Now, listen, you're not the brightest bulb in the chandelier.

I'll give you that. But that doesn't mean that under Eighth Amendment analysis, that you are not worthy of being executed because the whole retributive morality rationale behind the death penalty is not there when somebody really can fully appreciate and understand what they've done. And just because somebody might be a little socially awkward, that they might have some, I don't know, maybe immature language type problems and language deficits, it does not mean that they before the age of 18 had serious intellect and adaptive functioning deficits. It just means that they're not super intelligent. And the law does not require that you have to be less smart than Pythagorean or Galileo or Einstein to be executed. It's ridiculous. We have plenty of people in

society of average intelligence who commit crimes. And that's exactly what the Eighth Amendment is there to sort of enforce, if you will, that if you are going to commit a capital offense and you are not intellectually impaired or have some type of adaptive functioning deficit before the age of 18, it's fair game under the Eighth Amendment to be executed. Philip, I feel like every time Judge Hippler issues some new orders, he releases some new information about the case. And he did that this time. And really, the defense wanted to bar most of the experts presented by the state from testifying in this case. They lost. They lost that battle. The judge denied their motion, their request to do that. And in denying this request, Judge Hippler said the state has two experts in computer forensics who examined Brian Koberger's computer activity, specifically his phone and his school computer, right before the murders and right after. And they're saying there's this weird kind of gap. There's there are abnormal gaps in activity. So they're saying

there is either an effort to privately browse or to wipe things away, possibly forensically. How damaging is that going to be to Brian Koberger's defense? Well, this is going to be a battle of the experts because you can bet that the defense is going to be to Brian Koberger's defense? Well, this is going to be a battle of the experts because you can bet that the defense is going to call their own forensics expert to the stand and explain to the jury that these gaps may have nothing to do with browsing patterns or anything nefarious, but it could be something in the software itself or even in the hardware. And this is exactly why we have a battle of the experts in these cases. The remedy is not to exclude the state's expert on the grounds that

their opinion is invalid or scientifically unreliable, or somehow the basis of their opinion was not disclosed in full to the defense. No, the remedy is you put on your own strong expert to show the jury why the state's version is flawed. And I do predict that whoever they use, and I can't recall the name of their cyber expert, is going to intelligently and scientifically rebut it. And then it's for the jury to evaluate which expert, if any, they're going to buy into. And it's exciting because both sides are going to have cogent arguments for their positions. And in the end, the jury is going to be tasked with weighing everything with that in reaching a verdict. And it's not just going to stand in isolation. I want to go now to the text messages and the 911 call. Basically, the text messages between the surviving roommates, they're going to be allowed in.

Those roommates can testify to the content of those text messages. The 911 call, though, Hipler said some of that's going to be redacted. There's basically three parts of that that are going to be redacted because it doesn't fall within the hearsay exception. But really, there was a really sad part of this. And I think it's something that the defense will pounce on during trial is the fact that surviving roommate DM, after she sees this guy in her house, you know, and she's scared and she runs down the stairs. She said she saw she told the grand jury she saw Zanna laying on the floor, but she just thought she was unconscious and drunk, you know, and then she's up and she's on her phone at 5 a.m. What are your thoughts about that, about the judge's ruling on the 911 call, but then about DM actually

seeing her and then they're running downstairs and then, you know, they're locked in the bedroom, et cetera? Well, remember, there's a difference between statements and observations. If they're going to call someone to the stand to testify about what they saw, that is, in fact, direct evidence. I mean, it is being offered substantively for what the witness actually observed. And assuming it's relevant, the judge is duty bound to let it in for the jury to hear and to evaluate. Contrast observations with statements. And when we talk about statements, we're talking about things that are being said outside of court before the trial

even commenced. And those statements are not categorically or automatically admissible in evidence. They have to fall within an exception to the hearsay rule. If they don't fall within any exception, the remedy is exclusion. They don't just commit. And the reason why is when you have what we call an out of court declarant, somebody making a statement outside of court, their believability, their reliability, their credibility cannot be tested in real time in front of a jury. So sometimes you have situations within a 911 call where you have multiple conversations going on, multiple statements being stated, and there's really no way to test the reliability and the veracity of those statements. So the remedy is exclusion. How you get around

that is you bring everybody in who made the call. You actually call them to the stand to testify that they called 911, everything that they said to 911, everything that they observed before, during, and after that call. And that's how you solve this. But to just mark and play a recording for the jury, it's still subject to the rules of evidence. Otherwise, to be fair to Brian Koberger, he could be denied a fair trial. Well, it will be interesting to see how it's presented at trial and how these roommates testify and how they hold up under cross-examination. Philip Dubé, thank you so much for your time as always. Thank you back.

And one last thing. The defense has mentioned they're looking into possible other suspects they want to point the finger at during trial. Well, the judge would have to sign off on that because it would have to meet certain criteria. The defense has until the middle of May to present that information to the court. 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.