Crime Fix with Angenette Levy - Bryan Kohberger Judge Slams Lawyers Over Death Penalty Ask

Episode Date: May 1, 2025

Bryan Kohberger's third request to remove the death penalty from his case has failed. Judge Steven Hippler didn't mince words in denying the request after Kohberger's attorneys said they'd received a mountain of digital discovery that was disorganized and hard to access. Kohberger maintains his innocence in the murders of four University of Idaho students. Law&Crime's Angenette Levy goes through Hippler's order — a daily show covering the biggest stories in crime.PLEASE SUPPORT THE SHOW: Get 50% off of confidential background reports at https://www.truthfinder.com/lccrimefix and access information about almost anyone!Host:Angenette Levy  https://twitter.com/Angenette5Guest: Philip Dubé https://www.instagram.com/philip.dube/Producer: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. I understand that the court has said this is the trial date. It's carved in stone. And I'm I've done my best to adhere to it. And I'm here now saying that the death penalty needs to be struck. Brian Koberger's lawyers hoped the third time would be the charm as they asked Judge Hippler to strike the death penalty over mountains of evidence turned over to them by prosecutors that they say they can't possibly get through before trial, while prosecutors are firing back.

There's a ton of discovery, and the majority of it is completely irrelevant. I have the judge's decision on this episode of Crime Fix. Before I get into the very latest on what's going on in Brian Koberger's case, I want to tell you about our new podcast that just dropped on Wondery Plus. It's called Karen the Retrial. And let me tell you, it is absolutely the best place to get a recap on the Karen Reed case and to learn about everything that's going on in the retrial and what's to come as the retrial heats up. You can find Karen the

Retrial exclusively on the Wondery app or on Apple Podcasts. Click the link in our description below to give it a listen. Now to the latest in Brian Koberger's case. His attorneys are pulling out all of the stops to get the death penalty stricken as a potential punishment from his case. Their third attempt in front of Judge Hippler has now failed. This time, Koberger's attorneys had claimed that prosecutors have given them mountains and mountains of discovery in the case that's disorganized and sometimes hard to access. And they said they can't possibly get through all of it before trial. We're meeting the deadlines that are set out, but there's only 24 hours in a day.

This is what what's happened here is not satisfactory. That the discovery is not in an organized fashion. It's not in a searchable fashion. We've encountered documents that have been locked. Now, that was just a little bit of the defense argument from a hearing that was held last month. And like the other requests to have the death penalty removed, this one has also failed. And in denying the request, Judge Hippler had some pretty strong words for the defense, which I'll get to in a bit. Koberger's lawyers say he maintains he did not murder Maddie Mogan, Kaylee Gonsalves, Ethan Chapin, and Xana Cronodal in Moscow, Idaho back in November of 2022. The murders were heinous, absolutely heinous. All four of these young students were stabbed with what investigators believed was a large K-bar knife.

Police say a K-bar knife sheath with Koberger's DNA on it was found next to Maddie's body. Now, in the six weeks between the murders and Koberger's arrest, police received thousands and thousands of tips, and they reviewed hours and hours of surveillance footage. In his order, Judge Hippler wrote that Koberger contends the state has turned over more than 68 terabytes of data in discovery consisting of an excess of 13,000 photographs, 15,000 video clips from businesses, and 8,000 video clips from residences. It also includes more than 60 digital devices, digital data, and search warrant return data. That is no doubt a ton of evidence to go through. Now, at the hearing last month, Ann Taylor talked about things in this data dump that she's had trouble getting into.

Most critically, the entire DeSales record for Mr. Koberger's education at the DeSales University, those were locked documents. They were a complete mess. It took one of our team members probably 10 days to get them in an organized fashion where we could understand what document went with what other type of classroom or assignment or other event. I will tell you about the motion and limni we didn't discuss today, the self-authenticating records. When we received the state's initial

list, these are the list of things that we want to put in with a certificate. We went through those discovery folders and those didn't contain just one document. They didn't even contain a document that made sense about what the state was trying to do. That took me personally about 10 hours to go through all of those folders of discovery so that I could write a response to that. The state replied abandoning wanting to use about half of those right out of the gate after I'd spent the 10 hours and we come today prepared that the court was a hundred percent right. Those pleadings weren't ready. There's not a packet with a certificate of

authenticity for the court to make a decision on. The court was right. But that doesn't mean that I can't be prepared. Those things take time. And when we're talking about the amount of discovery that's left outstanding, everything that happens like that eats up those minutes. In this situation, Your Honor, it's not that we saw what Judge Boyce did in Vallow and thought this is a great idea. We are at the end of our rope doing everything we can, and I know about what Judge Boyce did, and I have to come to you and say you need to do this too. This impacts Mr. Koberger. I can't not bring this motion because somebody might think I was waiting to the last minute. I can tell you we weren't. Knowing who is in your life is really, really important. And that's why having something like truthfinder.com available can be so valuable.

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Now, when Ann Taylor talks about what Judge Boyce did in the Vallow case, he's talking about Lori Vallow Daybell, the so-called doomsday cult mom who was facing the possibility of the death penalty in the death of her two children, Tylee and JJ, and Tammy Daybell, the wife of her current husband, Chad Daybell. But that case was a little different, because in that case, the state handed over evidence very, very late in the game. So Boyce struck the death penalty. Ann Taylor continued with her argument. We've been working as diligently as we possibly can work on this case. We have understood the court's...

Have you gone to Judge Monson to ask for additional resources? Well, Your Honor, we do have an additional resource. We recently added our attorney, Ms. Barlow, to... A team of another five or six paralegals, for example, to go through stuff. I can definitely do that. I don't know how that puts the information in my head fast enough but I can definitely do that. Having litigated many very large cases you have staff to tell you here's an important document and then you that one comes to your attention from the as you pointed out the gigabyte or terabytes of probably pointless video

cameras that nobody's ever gonna rely on that don't show a thing. If I'd had a team of five more paralegals that understood the case already that would be one thing. I certainly can ask Judge Monson for additional resources. I certainly can try to get somebody to understand what the issues are. I don't have a problem doing that but that doesn't change where we are now. That doesn't change the things that have come up that have impacted our ability to prepare. I understand that the court has said this is the trial date. It's carved in stone, and I've done my best to adhere to it, and I'm here now saying that the death penalty needs to be struck so that there's fairness to Mr. Koberger.

The remedies for the court are to strike the death penalty and to have the state give us a list of Brady documents and the documents that they want to rely on. This is a huge amount of discovery and we don't have the same resources of the state. So right there, you heard Judge Hippler ask Ann Taylor whether she had asked for additional resources like extra paralegals, and she really hasn't. That will become important later. Judge Hippler grilled Ann Taylor about whether she really needed to go through every single item that had been handed over. The point is, you will know generally the universe of documents the state's going to rely on in two weeks. I will know those.

I will know those. And when I produce mine, the state will know what I can rely on. But I don't know what I don't know yet. It sounds like you would never know what you don't know, given what you've told me it's going to take, you know, 18 billion years to get through. Well, I don't think it'll take 18 billion years, Your Honor. I think that... Several decades, as I recall, is what you'd said, or several hundred years. I can promise you I won't take several hundred years, but I... You see my point? That's what you said it would take to get through that, an individual. I have a hard time taking that at face value because that's not a realistic answer.

My realistic answer, Your Honor, is that we were working, and we still are working diligently, but the discovery was one of the biggest things that we were doing methodically going through that discovery so that we could understand all everything that the state had given us even in its disorganized fashion and that changed with the things that have come up over the last few months our entire plan our schedule has changed to be responsive to everything else and that's not Mr. Koberger's fault. Complex litigation generally, when you're in the expert phase, I mean, that's not unusual. I guess, Your Honor, I think it's unusual when deadlines are blown by the state or not adhered to by the state. And our client pays the price for that. So I do think it's unusual. Then Taylor revealed she hadn't read all of the more than 40,000 tips that had come in, but she had come across one that really stood out. I think I've read most of

the police reports in this case, but I haven't read the thousands and thousands and thousands of tips that came in on this case. Don't think they're all not relevant, though. Recently, we came across a tip just in trying to work through some of these issues. We came across a tip that would appear to be an alternate suspect, and we're trying to work through that as rapidly as we can. It was quite a surprise to come up with that. There's got to be more in there that I need to know. Now, at the same hearing, prosecutors argued against striking the death penalty. They said they hadn't done anything wrong when it came to handing over the discovery.

Seven days after a defense counsel entered her notice of appearance, she indicated she wanted everything that we had. And we started the discovery process. This was continued routinely throughout this case. Generally, documents such as police reports, lab reports, et cetera, were bait stamped and then turned over and essentially turned over in the same way that we received them, in the same order. As they were done and turned over by various investigating officers or whoever, we put a bait stamp on them. Photographs were done in the same fashion.

Larger files, and I could say that, for example, most of the files that come from the FBI tend to be larger files that can contain a multitude of different things. Those were placed in an AV folder and discovered. Were they meaningfully indexed? I can tell you for FBI documents, the defense was provided essentially an index for all FBI documents because they requested everything that was on a shared drive for the FBI, and that was turned over with a searchable index. You mentioned a problem because of the password protection of documents. Yes, and we addressed that. Actually,

we first heard of that in, I believe, April of 2023, and Mr. Thompson wrote a letter to Ms. Taylor saying that he understood that some of the PDFs were locked, but advised council they could get around password protection by hitting print to PDF and then saving. And that allowed those documents to be searchable. They were advised of this over two years ago. Prosecutor Ashley Jennings then detailed what was in the Mountains of Discovery that they had given to Ann Taylor. We extracted cell phones for anyone that had any kind of connection to the victims. We gathered surveillance video for weeks, if not months, of random places throughout Moscow trying to figure out what happened.

So to answer your question, there's a ton of discovery, and the majority of it is completely irrelevant. Are you aware of any Brady information that is in the non, the cameras that are not the ones listed in your route of travel? No, Your Honor. I am not aware of any Brady material, any exculpatory material that's within those videos. The defense is right. All discovery was routed through MPD. We have a central location for collecting all the evidence, all the information, and then it was sent to our office. And then it was sent to our office. And then it was primarily reviewed by myself and Mr. Thompson,

given approval, and then immediately sent over to defense. Files were kept in the same way by our office as we've discovered. That's how they've been maintained. And the parties are just on equal footing in this regard. Now, you've heard Ann Taylor and Ashley Jennings talk about how just on equal footing in this regard. Now, you've heard Ann Taylor and Ashley Jennings talk about how much discovery there is in this case. It's far more than you can really visualize. Jennings then discussed how they manage it. For example, they say that there are so many investigators involved on this case. While that might be true that there were many investigators involved on the investigation, those investigators don't help us in the administrative task of organizing and sending out discovery. Further, we do have a PBK case management system, but it is not at all the way that it is described in the defendant's

motion. For example, we don't have this global search function. We don't have the ability to just generate reports based off of witnesses. Agencies can't just directly upload into our system. We just don't have that capability. The reality is we rely on a self-created spreadsheet. After hearing the arguments, Judge Hippler denied Brian Koberger's motion to strike the death penalty, and he denied Koberger's request to impose sanctions on the prosecutors. He didn't find that there were discovery violations. Koberger also wanted an index of so-called hot documents for Brady material. That's information that could be exculpatory, meaning it could help Koberger. Hipler wrote, while the Supreme Court in Brady

held that the government may not properly conceal exculpatory evidence from a defendant, it does not place any burden upon the government to conduct a defendant's investigation or assist in the presentation of the defense's case. Hipler then pointed to Taylor, conceding she hadn't asked the judge overseeing the resources given to the defense for additional help. In addition, defendants' complaints of being unable to meaningfully review the discovery ring hollow. Defendant has been receiving discovery in the same manner for over two years. In that time, he has not once sought a remedy from this court to regulate discovery, such as requiring the state to provide discovery in a different format. He has not sought additional resources under ICR 12.2

to hire additional staff to review discovery or obtain litigation document control software to help organize and sort the evidence. Hipler then wrote that Ann Taylor, in his words, insisted that she be allowed to take on another high-profile death penalty case representing a man named Skylar Mead, who's charged with murdering an 83-year-old man while also juggling Brian Koberger's case. Then-Judge Hipler seemed to suggest that Ann Taylor might be making things harder on herself than she needs to. Hipler wrote, at oral argument, Lee counsel indicated that her practice is to personally review

all the discovery herself rather than rely on associates and staff to review materials to cut through the less relevant information and point to what materials need review by lead counsel. These actions are not indicative

of an overburdened defense team. In fact, it is evident defendant has been able to capably navigate the discovery given his more than robust motion practice, the scope and breadth of the experts retained and the disclosures filed. So right there, Hipler pointed out that the defense filed a bunch of motions and hired many experts, so they appear to be getting through the discovery just fine. So right now, Brian Koberger is still facing the death penalty as a possible punishment if he is convicted.

So to talk about Judge Hippler's latest order, I want to bring in Philip Dubé. He's been talking with me a lot about the Koberger case. Judge Hippler, Philip, is making no bones about it. He does not believe that voluminous discovery or discovery violations, which he found none in this case, are a reason to strike the death penalty. And he kind of laid some of the complaints or the he laid some of the blame at the feet of the defense for, you know, not being able to maybe sift through all of this stuff. Well, first and foremost, you don't have a constitutional right to organized, indexed, tabbed, and alphabetized and non-voluminous discovery. You know, I analogize it to class action lawsuits.

If you as a lone plaintiff decide to take on, let's say, Big Pharma or Corporate America for a product liability, and they end up producing two warehouses full of documents, then so be it. You've made the request. And if you can't handle it, then you need to bring on paralegals, second chair, third chair to help you sift through all the evidence. But you don't fault your opponent for having produced all this evidence that you know. And if I recall, they sought over 400 items of discovery from the prosecution. And much of it was in, you know, 68, 70 terabytes, 23,000 photos and videos. So I don't know what the defense is thinking, that they're just going to get a nicely neat, tied up binder with this stuff that they can just look through in an hour? No, it's going

to be warehouses full of material. The court found that there was no competent or substantial evidence of a violation of discovery laws. And frankly, it came off as a little rap on the knuckles, knock this off. And even if it is a violation, let's just give and tailor that. The remedy is not mandatory. It's discretionary. So, for example, the court could have said, look, you know, state, maybe you are engaging a little gamesmanship by dumping non-alphabetized, non-indexed or non-bait stamped discovery on the defense and made it so unwieldy and unmanageable that there's no way that they could avoid the death penalty. Even in those circumstances, the court still has discretion to say, you know, it still doesn't rise to that level. And I think it can be cured.

How do you cure it? You give them a continuance, give them more time to sift through it. Maybe bring on a second attorney, a third attorney, a paralegal or whoever else to help you. You know, that's what I found interesting about this, because this is not the first case where I've heard defense attorneys talk about voluminous discovery. I mean, this one is probably the most discovery I've heard about, 68 terabytes. But then again, a lot of what's in there is probably, you know, as the state said, useless. And the defense, I would think, would probably think a lot of this might be useless, too, because you're going to be talking about maybe video files that really don't relate to the case or to that part of the homicide that is really relevant. I mean, those video files can be quite large.

Sixty eight terabytes, that's really big. I know in the Pike County Massacre case in Ohio, there was talk about all of the voluminous discovery. I mean, that's where I first started hearing about terabytes and terabytes of evidence. And I think maybe it was like 10 terabytes of evidence in that case. And they talked about bringing in a discovery coordinator because there were multiple defendants and they were comparing notes. And some defendants were getting some stuff that the other defendants weren't getting. And there was discussion about hiring somebody that could organize all of this and maybe get that together.

But that has never been brought up in this case. And the judge kind of pointed that out that, you know, you've talked about discovery in this case. And the judge kind of pointed that out, that you've talked about discovery in this case, but you've never brought up these issues until now when you want to strike the death penalty. So she's talked about voluminous discovery before, but if she was having all of these issues, this is a death penalty case and she's a public defender. She's paid for with taxpayer dollars. I'm sure she could have gone to the judge who is approving all the funding or whatever the resources for this case and probably gotten something like that. And maybe they probably would have hired a discovery coordinator to maybe get this stuff organized. Yeah. And you got to understand the deadline for trial is really coming up and she's under the gun right now. Pardon the pun with the firing squad, you know, not to make light of it. But the truth be told, one person cannot manage all that discovery and all that evidence.

There's just not enough time in a day to even look at it all, let alone analyze it, cull through it and collate what is relevant and what is not relevant. But I must say, though, that it puts sort of extra pressure on the state in that accusing them of over-including discovery could constitute or under-producing discovery could constitute a violation. It is not a value judgment or the prerogative of the state to decide what, if anything, they should turn over. They should never have the upper hand by having all of it and only giving a portion of it to the defense. And you know where we saw this, Anjanette? We saw this in New Mexico with Alec Baldwin and Carrie Morrissey. Right.

She made, right? She made a personal value judgment of what she felt the defense should have, what she felt was relevant, probative, exculpatory, or what constituted Brady material. Well, let me tell you something. It cost her the entire prosecution. And who knows yet if it might even cost her a bar card or some civil liability. It's not worth the gamesmanship. So what do you do you turn it all over that way you cannot ever be accused of hiding the ball and what do they do they turn it over and what does ann taylor do she accuses the state of uh not using a proper method you know or that it should have been done in a different way too much gave me too much stuff. Yeah. Yeah. It's either like you didn't give me every, I mean, it's weird because it's like you gave

me too much stuff. You dumped all this stuff on me and you know, I'm never going to be able to go through it. But then on the same, you know, the other side of that coin, she may say, well, you're not providing me with stuff. You're not giving me what I, you know, what I need or you withheld evidence or, you know, so I find it to be a very interesting argument. Is this all to set something up later in case Brian Koberger is convicted? Well, it could actually set the stage for an appellate issue if counsel is saying she doesn't

have enough time. But the issue might be waived if she doesn't file a motion to continue the trial date. If she is saying, I cannot be ready, I don't have enough resources right now, then a couple of things could happen. The court could give her more time. Well, Hitler's told her there's going to be no continuance. He's basically said, apparently, and Ann Taylor said at the last hearing, I know this trial date is set in stone. So apparently he's told them this is when this is happening. Right. And if she's saying I cannot be ready and he nonetheless is deeming her ready, she might try to withdraw. If she tries to withdraw from the defense and ask that substitute counsel be appointed and that is turned down, that could be an issue on appeal because a defendant has a constitutional right for his counsel to be prepared for trial. There is a fundamental right to prepare,

and it falls under the Sixth Amendment right to effective assistance of counsel. And sort of ancillary and incident to that is to be prepared, to have all the resources, all the evidence, your defenses, your tactics and strategies ready to go. And if you're under the gun time-wise, then the judge should do something about it. But I tell you, Anjanette, I've been practicing law many years. I have never, ever, ever seen a conviction reversed because counsel didn't have enough time, ever. So I think the judge knows that the denial of a motion to continue is pretty rock solid and it would not affect a reversal on appeal. The next thing I think is pretty interesting. And I feel like Judge Hitler kind of spanked

them a little bit. He basically said to Ann Taylor, you're complaining that you can't get through all this stuff. First, you're not getting more staff. You're insisting on going through all this stuff by yourself, your lead counsel, and you're not having associates and paralegals going through this. You're insisting on doing it yourself, and you insisted on taking on another death penalty case. That to me, if I'm Brian Koberger, I'm thinking to myself,

wait, you have another death penalty case? I'm like maybe going to the firing squad and being accused of murdering four people and you took on another death penalty case. I mean, does that set up a possible ineffective assistance of counsel argument? Why in the world? I mean, that seems like a lot to take on two death penalty cases, especially when you've got this one that is such a big case, not that the other one isn't. But the Skylar Mead case, you know, it's still another death penalty case. Not to come off contrarian, but particularly in the public defender world, we juggle a bunch of

balls. That's what we do. We get appointed in multiple cases. We got to work them all up. That's the nature of the beast. That is the nature of the job. You are going to have several pending criminal prosecutions at the same time that you have to work up. But the law allows for continuances when you are engaged in trial. And there is no doubt that the judge before whom she's appearing on the other capital case will give her a continuance because he'll or she'll know that she's engaged in another capital case. So they're not going to force them to be in simultaneous trial. So you work around it. But it's not uncommon for court appointed counsel to have multiple cases and multiple clients. And it's unfair to hold that against them. We see it in private practice.

I mean, let's face it. Private attorneys wouldn't be able to keep the lights on if they only had one client. You know, they have to have multiple clients that are paying the retainers, paying the bills, keeping the lights on. Otherwise, they'd have to close up shop. So is Hippler being unfair in pointing to that? I don't think he's being unfair, but the real test is, is she showing good cause to continue the trial date? If she is not doubling down and digging and saying, judge, please, can we go to sidebar and really shows in earnest that she needs more time? I cannot imagine the judge not giving her a little more time, particularly in a capital case. But assuming he says no, then she's got to roll up her sleeves and get some extra help and get busy because this

young man is looking at death. And if she can't handle it, well, then she has to get extra help and get busy because this young man is looking at death. And if she can't handle it, well, then she has to get extra help or move to withdraw because it means she cannot handle the defense of the case. Well, he's not striking the death penalty. I mean, he's just not. This is their third swing at that. He said no on every single argument they've made. So I'll be interested to see if they file yet another motion regarding the death penalty. And they very well may. I mean, they're trying to save Brian Koberger's life. One last thing I want to talk to you about, Philip, is the fact that the defense has until the middle of May to produce some evidence to the court about an alternative suspect if they're going to be able to point the finger at some other dude during trial.

And so there's some case law in Idaho where they have to kind of fulfill certain by this date. They're going to have to come up with some offer of proof and he's going to have to sign off on it, or they're going to have nobody to point the finger at except maybe some phantom person out there that they don't know who it might be. And then right now, as it stands, Hipler has said he has no alibi. Well, remember, there's a difference between an alibi and an alternative perpetrator. But I'm just saying their defenses are, you know, the defenses right now are, you know, their options are limited other than, you know, basic reasonable doubt if they can't come up with an alternative suspect. Right. So the fallback now, if they can't really

prove up an alibi is the alternative perpetrator. The problem with alternative perpetrator is that it cannot be speculative and it cannot serve to mislead the jury by saying somebody else could have done it or might have done it. You have to show concrete evidence that makes it more likely than not that Brian Koberger had no involvement in it or that somebody else was involved. If you cannot make that showing, then your theory is legally irrelevant. It would only serve to mislead the jury. And the reason why is the jury is going to get a reasonable doubt instruction. Obviously, the state, not to parrot or repeat that trite phrase that they must prove each element beyond a reasonable doubt, but the operative word is reasonable. And if all you're putting forth is some speculative, could-have type alternative

perpetrator, then the court views that as trying to put forth an unreasonable doubt. And to make it reasonable, you have to name somebody who more likely than not basically was involved. And if you can't make that showing, the court's going to shut it down and not let it into evidence. And the jury won't even be able to weigh or decide that defense. Well, it'll be interesting to see what they come up with. And if the judge says it meets, you know, the standard. Philip Dubé, thanks so much as always. 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.