Crime Fix with Angenette Levy - Bryan Kohberger Judge Orders Probe Into Huge Evidence Leak

Episode Date: May 16, 2025

The judge presiding over Bryan Kohberger's case has ordered an investigation into the source or sources of a leak of evidence related to Bryan Kohberger's case to Dateline NBC. The leak came ...weeks ahead of jury selection which is scheduled to begin July 30. Judge Hippler implied during a pretrial conference that much of the information aired in the report was inadmissible at trial. Hippler also laid out ground rules for the trial. Law&Crime's Angenette Levy goes over all of it with death penalty prosecutor Mark Weaver in this episode of Crime Fix — a daily show covering the biggest stories in crime.PLEASE SUPPORT THE SHOW: If you received Depo-Provera birth control shots and were later diagnosed with a brain or spinal tumor called meningioma, you may be eligible for a lawsuit. Visit https://forthepeople.com/lcdepo to start a claim now!Host:Angenette Levy  https://twitter.com/Angenette5Guest: Mark Weaver  https://x.com/MarkRWeaverProducer: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.

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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. I'm not a fan of surprises, as you may have figured out by now. I want to know in advance, as far as possible, when there are issues that need to be addressed. The judge in Brian Koberger's case laying down the law and the rules ahead of Koberger's trial for the murders of four University of Idaho students. Plus, the judge drops a bomb about the fallout from a leak of evidence about Koberger to a national news outlet. I would be open to a request for a appointment of a special prosecutor. Welcome to Crime Fix. I'm Anjanette Levy. The judge presiding over Brian Koberger's trial is apparently not happy. There's a gag order
Starting point is 00:01:06 in the case. They actually call it a non-dissemination order. And at least one person, maybe more than one person, has violated that order in a big, big way. Information that had never been released was leaked to a national news outlet. More on the specifics of that here in a bit. Koberger's trial for the murders of those four University of Idaho students is scheduled to begin in August. Jury selection begins at the end of July. Koberger maintains his innocence in the murders of Maddie Mogan, Kaylee Gonsalves, Zanna Kernodle, and Ethan Chapin. The case has been watched around the world since news that the four college students were murdered in the house on King Road
Starting point is 00:01:45 broke in November of 2022. It was a mystery. It was horrifying, and police had few, if any, leads for many weeks. They asked for help from the public, and members of the public obliged, calling in thousands and thousands of tips. Then Brian Koberger was arrested and charged in late December of 2022, more than six weeks after the murders. There's been a tremendous amount of publicity surrounding the case, so much so that the defense asked to move the trial to Boise, five hours south of Moscow. And that request was granted. Preparations for the trial have been underway for months and months, with motions filed. Before I get into how that non-dissemination order was violated and what the judge wants done about this. Let's get into what's going to happen at the trial.
Starting point is 00:02:32 Judge Hippler has been no-nonsense from the start, and he told both sides he doesn't want them wasting the jury's time. To start with, I'm not a fan of surprises, as you may have figured out by now. I want to know in advance, as far as possible, when there are issues that need to be addressed. That includes evidentiary issues. So if you know that you're going to object to some line of evidence, or you anticipate that there's going to be objections to a line of evidence, I don't want to wait until that is offered in the middle of trial for a couple reasons. One, I don't have the opportunity to look at the issue to the degree that I would want to in order to give you the best ruling that I can.
Starting point is 00:03:33 And two, it doesn't give you the opportunity to make the best case for me that you can for either excluding or overruling any objection. And perhaps even more important than all of that, from my my perspective is in what is already going to be an quite lengthy trial it just extends it and nothing frustrates jurors more than sitting around in the juror room doing nothing while we're in here doing something. And so that helps guard against that and minimize that amount of downtime that we may have. You heard Hipler say he doesn't like surprises and he also doesn't like nonsense or people making claims that they can't back up. We've seen that in past hearings and he reminded both sides of that. Speaking of chicanery, I'm not fond, and you folks know that by now, of making accusations against opposing counsel that are not well-founded and supported by specific actual evidence.
Starting point is 00:04:49 I know that you can get along, but I also know that over the course of a trial, particularly a long one, tension rises. And so I remind you of that, to don't talk to each other directly when we're in court, right? When the session's going, everything goes through the court. As you know, the protocol with courts generally is refer to each other professionally, Ms. Taylor, Mr. Thompson, by first name while we're on the record. And again, avoid making accusations that you don't have the tickets for or the receipts for, I should say.
Starting point is 00:05:38 And under no circumstances did you make such accusations in front of the jury. This is another law and crime legal alert. If you receive Depo-Provera birth control shots and were later diagnosed with a brain or spinal tumor called meningioma, you may be eligible to take part in a lawsuit. Morgan & Morgan is investigating claims that patients were not properly warned about this risk. It's free to check, just takes a few minutes, and you don't pay unless they win. So scan that QR code that you see on your screen, click the link below, or go to
Starting point is 00:06:10 forthepeople.com slash lcdepot to see if you qualify. Now this is a death penalty case, so that makes jury selection more complex. It will take longer because jurors will have to be death qualified. Hipler said he doesn't plan to sequester the jury, but he's not ruling it out either. The sequestered phase, whether that be, for example, in a penalty phase or earlier in the case, should it become necessary, I will likely extend the hours of the trial to fill up the jurors' days. Part of the reason to give some time at the end of the day is so that they can do the errands of life that they need to do.
Starting point is 00:06:51 But if we are hosting them, so to speak, we don't have to worry about that. The trial is scheduled for three months. That's a long, long time for jurors to potentially be sequestered, and most judges try to avoid that if possible. Then the discussion turned to cameras. Hipler said he plans to stream the trial using the court's cameras. And Your Honor, as the court is aware, we have, unlike most cases, we have multiple victims here, so we will have multiple victim coordinators to work with separate families. We will coordinate
Starting point is 00:07:20 that with Ms. Barrio's office to let her know. Are you talking about one per family? Hopefully not like that, but we're going to need to split at least, we're going to need to have at least two separate groups. All right, let's try to keep it as limited as we can just because seats are a premium. Yes, understood. Your Honor, may I also ask the court in regard to the live stream from the witness stand? I believe that we've mentioned this at least in passing in our trial brief. The state anticipates that we may have witnesses who, for reasons the court articulated about the other two victims, surviving victims, that a public live stream where their images could be captured and done played games with in the media world uh is it possible for the video of that live stream when they testify to be shut
Starting point is 00:08:14 off and just have the audio we also may have a small number of law enforcement witnesses who also do covert work and broadcasting their images publicly would be undesirable. We will advise the court. We've asked the agencies to identify anybody in that capacity and to specify the basis which will bring to the court. I just want to give Your Honor a heads up. The defense also had something to say about witnesses being shown on camera. Your Honor, this case is very high profile and we've had people who have expressed reluctance to talk to us and being willing to testify for similar reasons. I did have a chance to speak with the state this morning and we agreed that what we'd do is take a look at our entire witness list and try to figure out people that might be more sensitive to having their video camera on their face while they testify. And we may approach the court with a stipulation for certain numbers of them.
Starting point is 00:09:17 Well, my intent would be with respect to victims, and I've already indicated I think the two roommates are victims the there is a compelling interest to protect them and so just as typically when media is present they're not permitted to photograph or video victims that may be in the courtroom if the victim requested their face will not be shown during the broadcast in terms of those that work covert I see where the parties land on that. If they weren't covert in this case, I'm not sure about they won't be. There will also be a 3D model of the King Road house for jurors to see the layout of the home. With respect to the model, I think referred to as the dollhouse by Mr. Thompson, has that been produced for the defense to inspect? It has, Your Honor.
Starting point is 00:10:49 It's actually here in this courthouse, has been for a few weeks, and Mr. Hurwit facilitated the defense viewing it yesterday. Okay. It's available for the court's inspection well if the court would like to look at it. And just for the record, to the extent that the model was characterized as a dollhouse, I think that was an inappropriate characterization, is an inappropriate characterization. If I'm responsible for it, I assume responsibility, but that's simply not an appropriate way for it to rough model, given that it is admittedly not to scale precisely. Now to the part of the hearing that probably had Prosecutor Bill Thompson and lead defense attorney Ann Taylor pretty uncomfortable, although they did their best to hide it. I told you earlier this week about the episode of Dateline that aired a lot of information that they claimed to have obtained from sources. That information included selfies taken from Brian Koberger's phone, where he was wearing all black, sometimes a hoodie or even a
Starting point is 00:12:01 hood. The episode even included video footage of suspect vehicle ones circling the King Road neighborhood before the murders. That footage had never been seen publicly. Only screen grabs had been included with motions filed by the defense. And then Dateline reported that Brian Koberger had searched serial killer Ted Bundy before and after the murders, along with a paper one of his professors wrote about Bundy. Whether the Bundy searches were related to Koberger's coursework as a criminology student, we don't know. Koberger, according to Dateline, also saved or watched 60 stories about the Idaho murders on YouTube and searched for pornography that included the terms forced, drugged, passed out, and asleep.
Starting point is 00:12:46 The episode probably had the defense absolutely fuming. Some of the information is probably not even admissible, meaning the jury would never see it, and it wasn't released through court documents. So whoever released it violated that non-dissemination order, and Hippler noticed. Take a listen. My plan today as we sit is to get through the jury selection. I see where we're at with the intent that we not sequester to start. As I explained this morning, the more people talk to the media and the more things that are in the media that are not admissible, whether true or not, the more difficult it makes things.
Starting point is 00:13:38 And so I'm going to have to figure that out as we get close for now, I'm, you know, intent is not to do that, but we will have plans in place to revert to that if we have to at any point during the trial. Do either of you want to make a record about sequestration at this point? I would say the only record right now is that we understand what the court is saying during jury selection. If we still don't know if that could come up, the potential jurors should just be aware that it could come up. That would be part of the questionnaire as well as part of the hardship determination. Is there some reason they would be unable?
Starting point is 00:14:27 I get that they wouldn't like to be, but would they be unable? Do they have a sick family member they care for or whatever where they have to be home, right? So we'll talk to them about that. Anything from you, Councilman Thompson? About that? Not at this point. I understand court might entertain some things in a closed environment later today.
Starting point is 00:14:51 And we do have some sensitive issues to raise at that point. So Hipler discussed this with the attorneys in a closed session. And now he wants an investigation. In the closed session this morning, I indicated to you I am going to be entering an order requiring the retention of records by the state, and I'm going to write another one extending that to the defense as it relates to violations of the non-dissemination order i'm going to give you a copy of what that order is going to look like that i will execute likely over the lunch hour it does require some action on your part council
Starting point is 00:15:42 and as i indicated i would be open to a request for an appointment of a special prosecutor and that special prosecutor to ask for a magistrate inquiry so they have the power of subpoena and the power to question witnesses under oath as well as the power to grant immunity. So I will be looking for that from you. And that one just deals with the state. I will get you one that deals with your side to preserve records. All right. So Judge Hippler is putting it on Prosecutor Bill Thompson to initiate the process to appoint a special prosecutor to investigate the source of the leak. The order from Hippler states, based on sensitive information not previously publicly circulated that was reported during a recent Dateline TV program related to this case and the defendant Brian Koberger, it appears likely that someone violated the court's non-dissemination order.
Starting point is 00:16:50 Such violations not only undermine the rule of law, potentially by persons charged with upholding it, but also significantly impede the ability to seat an impartial jury and will likely substantially increase the cost to try this case by extending the time it will take to seat a jury and potentially requiring a lengthy period of jury sequestration. Hipler said the leak frustrates the ability of both sides to receive a fair trial. Hipler continues, accordingly, the court finds it is imperative to attempt to see that the source of such leak is identified and held to account and that doing so is the best deterrent to future violations. Hiler is ordering both sides and anyone who has worked for them on this case to preserve all of their records.
Starting point is 00:17:30 So to discuss all of this drama that's going on in this case, I want to bring in Mark Weaver. He has prosecuted death penalty cases in the state of Ohio. He also works as a special prosecutor and sometimes a judge. So, Mark, I want to know your reaction to Judge Hippler, who is not pleased, quite obviously. He's calling on the prosecutor, the lead prosecutor in this case, Bill Thompson, to submit a request to him to appoint a special prosecutor to investigate this leak of information to Dateline. He calls it sensitive information. It was obviously from discovery materials. And he says a lot of this information may not have been admissible. Yeah, this is about as serious as it gets. I represented a judge in a state Supreme Court case who had entered a gag order and murder case. And so I'm very familiar
Starting point is 00:18:18 with the powers of judges to do this. And it's very common in death penalty cases to have gag orders. What's much less common is for the judge to be so upset that he sets up what will essentially be a criminal inquiry, not run by him, but by somebody else, where people will have to not only maintain and preserve all their records, but probably go under oath and swear under penalty perjury that they did not, in fact, leak this material. So it's hard to imagine a more stringent step taken by this judge. The judge noted, you know, in the public hearing that they had a closed session about this. So you know that there were words exchanged. The things were said in this closed session. We're not privy to it. I wish we were. So I am sure he called the prosecutor on the carpet. He called the defense attorney on the carpet. This happened, you know, weeks out from jury selection, that information from the defendant's phone makes its way to Dateline, things that weren't even discussed in pretrial motions, things about prosecutor in death penalty cases and represented judges about what probably happened in that closed session.
Starting point is 00:19:52 I imagine the volume was louder back in the closed session, whether it was in chambers or in a closed courtroom than what we heard. The judge is clearly angry and he has a right to be. Everything about a death penalty case is different from your garden variety felonies or even murders for that matter, because there are so many different ways they can be, the judgment can be overturned on appeal. And so good on the judge for wanting to protect the record, as we say, in every possible situation. Most of what we saw in this Dateline report would not be admissible, or it certainly would be admissible only over strenuous objections by the defense.
Starting point is 00:20:32 So the judge is trying to protect this trial. Now, remember, though, jurors don't have to come in with no knowledge of facts. They simply have to be able to attest that they can set aside anything they heard outside of the court and focus on the evidence. He clearly, my reading of the separate orders that he wrote to the defense and the prosecution, he clearly suspects this leak came from the state side. He is telling
Starting point is 00:21:00 the prosecutor, you have to come to me within seven days with a plan about how you're going to prevent such leaks in the future. So that to me, he didn't say that to the defense. He suspects this came from law enforcement. Well, law enforcement typically has the inculpatory evidence, the things that prove the crime that they give it over to the defense and discovery. So defense have it as well. But the motive would be on the law enforcement side. Having said that, in a case this complicated, there are dozens of people who have access to this record. Law enforcement at various agencies, at the prosecutor's office, consultants and experts and advisors to the defense and the
Starting point is 00:21:43 prosecution teams. Possibly could be more than 50 people have access to this record. And going forward, it's going to be hard to say to the judge that I can guarantee that this won't happen again. Because these leaks are done in unauthorized fashion. They're not official leaks. These are people who are looking to either get some glory for themselves or help the case along, whatever. It's hard for a prosecutor to guarantee it won't happen again. I mean, you can trace who has access to these materials. And he talked about how the inquiry that could be launched, the people would have subpoena power, you know, the magistrate would have subpoena power, the ability to grant immunity to people.
Starting point is 00:22:26 So I'm sure they can whittle down and everything has a digital trail these days, a fingerprint. I'm sure they can figure out quite quickly who leaked this material. I think that's right. And you could see the judge is giving the special prosecutor tools to do that by request. But people who review the order might want to know why the judge has a no destruction order, because now if he has put them on notice that anybody who destroys something, you know, shouldn't do it. Now we have potential tampering with evidence charges that could be fought for. In most states, tampering with evidence is not a crime unless you have reason to know that you're supposed to be holding on to the evidence because of prosecution or some other proceedings in process.
Starting point is 00:23:14 So the judges put everybody on notice, don't destroy things. And then he said to the sides, I want to know everybody who has access to the records. If I were the special prosecutor, that is a very clear path for me to do my investigation. I know who to talk to, put them under oath. And if they lie, that's perjury. And if they destroyed evidence, that's just tampering with evidence. And so I wouldn't be surprised if you see somebody charged out of this. They can be charged. And you know, it's interesting to me, Mark, in the Murdoch case out of South Carolina, we just saw the clerk this week,
Starting point is 00:23:49 Miss Becky. She was charged with perjury for allowing, she, she apparently gave out sealed exhibits and sled says she lied about it. So she's not only charged with lying about under oath to a judge about giving out the sealed exhibits. She's also charged with misconduct for giving out the sealed exhibits. So, you know, you can be charged with disclosing this stuff. That's true. The people on the government side, the prosecution, law enforcement,
Starting point is 00:24:22 have a higher burden of following the law than people on the defense side. Both sides have to follow the gag order or the non-dissemination order. That's true. But we expect people in law enforcement to abide by a higher standard, particularly for the prosecutors who are not ethically supposed to be seeking a conviction. They're ethically supposed to be seeking a conviction, they're ethically supposed to be seeking justice. And as a result, leaking something that might be not admissible right ahead of a trial is certainly not CFE justice. And Judge Hippler talked about how this is going to increase the cost of seating a jury. You know, the the potential is there and that this may also lead to him having
Starting point is 00:25:06 to sequester the jury. So not only is it going to increase the time it may take to seat the jury, they may have to end up sequestering the jury. And there's also a possibility that more inadmissible information could leak. So he's very concerned about this. The judge is. I was surprised. I listened to all the back and forth of the judge and defense counsel the other day. And this judge is putting on more safeguards and guardrails and protections in this case than any case I've ever touched, including my death penalty cases. He is he is in earnest to make sure that this record is protected. So he's laying down, he's a no-nonsense kind of guy. I mean, he's not taking any guff from
Starting point is 00:25:53 either side. I feel like he is being a little bit, yesterday he was being a little more conciliatory toward the defense. I think he realizes this has gotten really messed up. The potential is there for this to have been really messed up. So he's Miss Taylor. How do you feel about this? I want to know how Miss Taylor feels about this. He's laying down the rules of the road for this trial. What I liked hearing from him was that he's committed to transparency. They're talking about, oh, we have witnesses that might not want their faces shown. And he's like, you're going to have to really convince me. He's saying that the surviving roommates, you know, if they don't want their faces shown, he's open to not showing their faces,
Starting point is 00:26:34 still allowing their audio out. But this is a judge who said the only way the public is going to have confidence in this result of this trial is if they see the trial. Yeah, this is a difficult balance for a judge because we have two constitutional rights in tension. We have the Sixth Amendment right to fair trial that Brian Kloberger has, and we have the First Amendment right of the press, like yourself, to be able to cover what is a public and open proceeding. By and large, we don't have secret trials in America. The founders of our country chose a different path. They want people to know what's happening in court. And it's not comfortable that witnesses have to step forward and perhaps be
Starting point is 00:27:16 known, but that is our system. And the judge is trying to strike that balance between a fair trial and an open process. Yeah, most definitely. It'll be interesting to see what happens next month. There's another hearing June 18th. You know, everybody thought the hearing on Thursday would be the last one, but no, there will be another one. Another thing I thought was interesting, Mark, he said that he is giving the defense a piece of paper. He wants them to turn that in before trial, basically acknowledging whether or not there have been any plea negotiations and whether there's been a last best offer made. He wants that in case there's a conviction because he wants to be able to show any appellate court or the state's highest court that he was, if he's convicted, he was given an offer of a plea and he turned it down.
Starting point is 00:28:12 That's more and more lately I'm seeing that with judges. They would like to know the final state of the plea offer before they move forward. They want that on the record. As a prosecutor, I like that because I think it protects the case from going up. But remember, the prosecution is in the driver's seat here. If the defense could get a deal where they could take the death penalty off the table, they would take it tomorrow. Yeah, I would be interested to know if Brian Koberger would take that because right now it sounds like they don't want a deal. So we'll see what happens moving forward.
Starting point is 00:28:45 Mark Weaver, thank you so much for your time. Thank you, Ingenette. Another note about the pretrial conference. The defense has submitted information to the court under seal about alternate suspects that they want the jury to hear about at trial. These are people that they believe could have committed these murders. The state will object to this, of course, and they will argue about this in front of the judge at a hearing on June 18th. And that's it for this episode of Crime Fix. I'm Anjanette Levy. Thanks so much for being with me.
Starting point is 00:29:15 I'll see you back here next time.

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