Crime Fix with Angenette Levy - Bryan Kohberger Loses Big as New Evidence is Revealed

Episode Date: May 8, 2025

Prosecutors in Bryan Kohberger's case will be allowed to have an expert evaluate him for Autism and other mental health issues. The request came after Kohberger's lawyers claimed he had a number of mental health issues that could be presented to the jury during a possible penalty phase. Meanwhile, Dateline has revealed Kohberger searched for serial killer Ted Bundy on Google and had photos of female students on his phone. Law&Crime's Angenette Levy goes through 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: 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.

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. When emotional evidence or picture evidence comes in that a neurotypical person will react to, he will not react. And that is only because he has a physical disability. After hearing about Brian Koberger's autism and OCD, prosecutors in his death penalty case want their own experts to evaluate him, but it's been kept under wraps until now. I take a look at what prosecutors wanted and what they're getting, along with a big decision on whether Koberger's family will be allowed in court during the trial and how serial killer Ted Bundy could come into play.

Welcome to Crime Fix. I'm Anjanette Levy. There are a few new developments in Brian Koberger's death penalty case. Some are coming out of court, while others are a few new developments in Brian Koberger's death penalty case. Some are coming out of court, while others are coming from new reporting from an episode of Dateline NBC airing this week. More on that later. For a while there, we were getting a really good look at what was going on in Koberger's case in Idaho because Judge Hippler told both sides they needed to be more careful about what they filed under seal. Then earlier this week,

Judge Hippler held a sealed closed hearing where the public wasn't allowed in. It was all over the prosecution asking for a mental evaluation of Brian Koberger ahead of his trial. Jury selection in the quadruple murder trial is scheduled to begin in less than three months. It's a death penalty case, and that makes it more involved, more complex, and there will be a lot of experts testifying about everything from DNA and his car make and model to cell phone evidence. But now prosecutors have asked Judge Hippler to allow their own expert to perform a mental evaluation on Brian Koberger as they prepare for a possible penalty phase in the trial.

Brian Koberger's lawyers have said in recent hearings he maintains his innocence in the murders of Maddie Mogan, Kaylee Gonsalves, Zanna Kernodle, and Ethan Chapin in November of 2022. Those four University of Idaho students were brutally stabbed to death in a home near campus in Moscow. Investigators said that they linked Koberger to the crime after finding a single male DNA profile on the snap, this part of the snap of a K-bar knife sheath that was left at the crime scene. According to Judge Hippler, the defense essentially has conceded that prosecutors should be allowed to have an expert evaluate Koberger since they

had their own experts do the same. But the two sides disagreed on ground rules, like whether the defense attorney should be allowed to be there for the evaluation and whether Koberger should be tested for personality disorders. All of this is coming after Koberger's lawyers have tried unsuccessfully to get the death penalty stricken as a possible punishment for Coburger if he's convicted. Most recently, they argued he has autism spectrum disorder and that that should make him ineligible for the death penalty. Here was Coburger's attorney, Ann Taylor, at a hearing last month talking about why Brian Coburger's autism spectrum diagnosis shouldn't be used against him. But Your Honor, when I look through the mounds of discovery, there are probably 100 hours of interviews of people that Mr. Koberger went to school with at WSU. And of course, those interviews come just hours and

days after the headlines hit that Mr. Koberger's been arrested in this case. And people that he went to school with, that he interacted with, had unkind things to say about him. And a lot of their unkind things, when you understand them in the context of autism, the way he may stand in a room near a doorway, the way he may look too long at a person. Their interviews are different when you know he has autism and you know the characteristics he displays, but those awful comments, those mean comments about him, if the state uses those as aggravators, that's using his autism characteristics. How do I know, and I don't know that this is a real thing, right, in terms of actual evidence.

Let's say there's evidence that he harassed other young females. Okay. And I'm aware of no evidence in that regard. I just want to make that clear. I'm just using this as an example. And let's further assume that that in and of itself is somehow relevant in a mitigation aggravation penalty phase. Your position is that's due to his spectrum disorder,

whereas the state's view may, no, that's not, that's his view of women and goes to motive, et cetera, and goes to his aggravation of the crime in some way not because of Asperger's but because of his views his dislike and how he responds that's exactly the problem your honor if the state and do you want I want to eat away here what the factual findings are that it's this and not that and I'm not sure I can do that short from a jury instruction that, you know, you cannot use mental health conditions as an aggravating factor. unpredictable and scary place. And that's where our great partner Morgan & Morgan comes in. The firm has more than a thousand lawyers because they win a lot of cases. In the last few months, Morgan & Morgan has secured a $9.3 million verdict for a car crash victim in Florida, a $5.6 million verdict for another car accident victim in Atlanta, not to mention a $1.8 million verdict in Kentucky after the insurance company offered them a mere $5,000 in that case. Can you imagine? Even if you think your case is not worth millions of dollars,

why not start a claim and fight for what you deserve? Morgan & Morgan makes it really easy. You can start a claim from your cell phone in just eight clicks. So if you're ever hurt, you can easily start a claim at ForThePeople.com slash Crime Fix or click the link in the description and pinned in the comments. For their part, prosecutors said they have no intention of using autism against Brian Koberger. The state has no plans whatsoever to use the autism during the penalty phase as any kind of aggravation whatsoever. There is no plan to put on students from the university to talk about their personal views of this individual. To be quite frank, if we get to a penalty phase,

we have a lot better aggravating evidence than the fact that he has level one autism. And frankly, it's just not a persuasive argument to ask a jury to impose the penalty of death because someone has autism. Koberger's request to strike the death penalty because of autism has failed. So let's say Koberger is ultimately convicted of murdering the four students. When it comes to the penalty phase of the trial, his lawyers will pull out all of the stops to present mitigating evidence to the jury, hoping they will spare his life. The initial expert report that was provided in the fact phase of Dr. Orr and Dr. Ryan and Dr. LeWine's report was attached to our reply for the basis of

substantiating that our argument is that this is a neurological, biological disability. We are not taking the position that this is a mental condition. Clearly in the state of Idaho you know one of the guiding cases regarding mental condition. Is there an inconsistency there because it seems like on the one hand you're arguing that his autism spectrum condition shouldn't be used as an aggravator as a mental health condition. I mean, yeah, it shouldn't be used as an aggravator as a mental health condition. On the other hand, you're arguing his non-mental health condition under 207. So I think that it's really important.

I know that you grouped these two arguments together. This issue that I'm talking about right now has to do with the fact phase, the guilt phase of the trial. Everything related to aggravator is at a different phase. Are you taking the position that it's a mental health condition as it relates to aggravation and not a mental health condition as it relates to guilt phase? I don't think we've said anything about it being a mental condition as it falls under, you know, 18207. And we're talking about this being a neurological, biological disability. Now, when Koberger's lawyers talk about 18-207, they're talking about a statute in Idaho that says mental conditions cannot be used as a defense to any crimes.

But that doesn't mean Koberger's lawyers won't use his autism diagnosis as mitigating evidence against a possible death sentence. Here's attorney Alyssa Masseth talking about that possibility. Imagine if you do not let this testimony in in phase one of the trial and the jury convicts Mr. Koberger. How angry and misled might those jurors feel when they learn in mitigation, where without a doubt this comes in at mitigation, that he has this disorder and it has them second guessing themselves. We must avoid that possibility. Now, Koberger's lawyers haven't just said he has autism. They've also said he has obsessive compulsive disorder, and they've suggested he has coordination issues that fall under another disorder that would make it unlikely he could have carried out four murders in a matter

of minutes. In response to your honor's question about or observation that there's no evidence from an expert here that the defendant is incapable of committing these crimes, the response from the defendant was, well, yeah, that's right, which is exactly our concern because the defendant in his filings took what little was in the expert disclosures and then stretched it out to this conclusion that the defendant is incapable of committing the crimes when the experts don't say that. I mean, they are essentially creating an opinion that doesn't exist. So, Your Honor, our request stands. Certainly, the evidence that's being proffered about his demeanor is not relevant. It shouldn't be admitted. And if there's an issue that comes up about the defendant on the stand and his appearance there, I think we can address that as it comes up. Likewise, if the state opens the door to questions about the defendant's behaviors, which we are not intending to do, we can address

the issue at that time. So we'd ask the court defer any kind of ruling on those hypothetical situations. The OCD that the defense claims Koberger has could possibly become an issue at trial. As for issues that relate to state of mind, it does depend on what the state offers. We agree with the state on that aspect. If they stay away from the issues regarding cleanliness and a missing shower curtain and speed in which the crime occurred and wearing gloves or showing him at various places wearing gloves with some sort of negative attribute that he is doing that to hide DNA as opposed to what's going on with his autism. It's our position that that opens up the door to the opinions that the experts have expressed. Now, police have said that Koberger was wearing plastic gloves kind of like these and

separating his trash into baggies when he was arrested at his parents' home in Pennsylvania. The defense says that was because Koberger has OCD. But back to the autism. Prosecutors indicated they will argue against Koberger's autism being a mitigating factor for the death penalty if the jury finds him guilty. We understand the law. We understand that we're not to use his mental condition as an aggravator. We do, however, reserve the right to present argument as to if the defense chooses to present it as a mitigating factor, how much weight should the jury give it? And I think we have quite a bit of flexibility there to put on our own evidence as to what exactly this autism means. And so that if the defense tries to say this is the reason that

you should not sentence him to death, then we should be able to argue this does not make up for the proper aggravation evidence that we've put forward. I think not only is that the state's right, it's what the statute requires. It's what the Idaho Supreme Court has been very clear that a juror in this situation has to be able to do. It's their duty. That was the Dunlap case. It's their duty to weigh the evidence, including any mental health or mental illness evidence, and make that ultimate determination. So with all of these doctors evaluating Brian Koberger for the defense and diagnosing him with autism, obsessive compulsive disorder, and developmental coordination disorder, eating disorders, and a history of substance abuse, the state filed to conduct its

own evaluation. On April 25th, the state filed a motion for exam pursuant to Idaho Code 18-207. The motion also asked for an extension of time to complete penalty phase rebuttal disclosures. The evaluation by the state will be used to rebut whatever the defense presents in a possible penalty phase if Koberger is convicted. The defense filed an objection to a lengthy extension of time for the evaluation. Now, after Monday's sealed hearing, Judge Hippler ruled the state's experts should be allowed to evaluate Brian Koberger within seven to 10 days. Hippler wrote, the court will allow counsel for both sides to watch the examination through a one-way video feed or some similar method that prohibits them from being seen or heard during

the examination. Under no circumstances will counsel be able to interrupt the examination. Hipler is only giving prosecutors a brief extension of time to file their expert opinion because the expert they had initially retained withdrew from the case over disagreements with prosecutors about counsel being present and personality testing. The state's expert will not be able to evaluate Ryan Koberger for personality disorders. Hipler wrote in a footnote, one of defendant's forensic psychiatrists, Dr. Eileen Ryan, concluded in her expert report that defendant does not have a childhood history of behavior that is consistent with conduct disorder or antisocial personality disorder in adulthood, nor does he

meet criteria for antisocial personality disorder. Antisocial personality disorder used to be called psychopathy. Since Koberger wasn't evaluated for personality disorders by his experts, Hipler said there's nothing for prosecutors to rebut on that front. And Hipler said letting prosecutors go down that road with Koberger could possibly violate his Fifth Amendment rights and just open up a big can of worms. I want to bring in somebody who has prosecuted death penalty cases. He is Mark Weaver. He's also a former deputy assistant attorney general out of the state of Ohio. So, Mark, we have a sealed motion here by the prosecution in Brian Koberger's case.

And they're saying we want a mental evaluation of Brian Koberger. And they kind of mentioned that they might ask for this in last month's hearing. And it seems like this is tied to the possible penalty phase from what we're seeing. We, of course, don't have the motion because it's sealed. But is that what the feeling you're getting just from reading the case summary page? First, let me just say that very few things should be sealed in court. There seems to be a lot of sealing in this case. I am certainly aware of the need for a judge to balance the Sixth Amendment right of the defendant have to fair trial with the First Amendment right of journalists such as yourself to be able to cover this case.

It just seems like there's a little heavy hand on the ceiling, FYI, but let's talk about it. We can't peer into it because it's sealed, but it's important to remember that we have two phases in every death penalty case. We have the guilt or innocence phase, and then we have the penalty phase. And the rules for the penalty phase are much more wide open. Many more things come in as evidence during the penalty phase. So it's a good guess that what these mental experts who are going to examine the defendant have to say is more likely to be relevant in the second phase the penalty phase than it is the guilt or innocence phase and and i want to touch on that first point you raised about the ceiling you know judge hippler you know a month or two ago a couple months ago had said

enough with the ceiling you can quit filing everything under seal. You can redact things. You know, it should not be the norm. But now we're back to filing this stuff under seal. Why do you think that is? Because the judge had basically told both sides just to knock it off, to redact things if possible. Now we've got this kind of super secret motion about asking for this mental health evaluation when this has already been kind of discussed in open court? Yeah, it's odd. I have represented judges who sealed things before. I litigated a state Supreme Court case for a judge who sealed the outcome

of a particular high profile case. So I understand the need for it, but there is a countervailing need of openness in courts. We don't live in a closed court society. Some countries have secret courts. America doesn't. We have open courts. So I can only guess that there's some sort of substantive information in there that if they came out could change the jury pool one way or the other towards this defendant and judges are supposed to try to stop that from happening. Having said that, it's a pretty high standard to meet. So, let's talk now about the statute they keep citing with this. It's 18-207. And in the state of Idaho, you cannot use, you know, a mental health issue as a defense. And the defense is saying we're not trying to do that in this case. But they have tried to say

that he has this neurobiological issue, the autism spectrum disorder. They've also said he has obsessive compulsive disorder and this, you know, other developmental coordination disorder. They've said all of these things. So, you know, they are going to now because the judge has said, you know, they can't tell the jury in the guilt and innocence phase that he has autism spectrum disorder to explain his demeanor and his flat affect and stuff like that. But they will be presenting that in a possible penalty phase if he's convicted as mitigating evidence. They will be presenting that information. So are we to assume from the state filing a motion, you know, seeking an evaluation of Brian Koberger that they want to somehow be able to counter that with the defense because they also want an extension of time to file their penalty phase rebuttal experts. So, are they going to have their own expert,

if the judge approves it, because the defense is objecting to this, evaluate Brian Koberger and come up with their own evaluation about whether or not he has level one, the highest functioning form of autism level one autism spectrum disorder this is rich imagine the defense counsel saying we want our expert to examine the defendant and see whether he has mental issues but we don't want the state to have that as well that's a little crazy it doesn't right to me. It seems like if one side wants to have an expert, the other side could have an expert. We call this the battle of the experts in law. It's very common in civil cases, also in criminal cases. I've had my share of expert witnesses in the criminal prosecutions I've done. for each side of experts and exchange reports and offer whatever help they can to the jury to understand the issues of the case. With respect to the on the spectrum question, autism, the judge said that that might come

in if Koberger takes the stand. Sure. And maybe the lawyers need to explain why he acted a certain way on the witness stand. I think where the judge said, you can't do is try to use it as a way to explain how he might react in court while he's sitting at the defense table. That's really just a backdoor way to try to slip into some form of he's not really culpable because he has autism. They made a similar case about why his mental social skills might be something that needs to be brought in. They even tried to use this as a defense against the death penalty,

and the judge struck that down as well. I think the most likely use of all of this is in the penalty phase where the rules are much more relaxed and all sorts of things can come in as mitigating evidence against the use of the death penalty. How unlikely, and I know you practice in Ohio, but this is a death penalty case. And so how unlikely or likely is it that if the defense has all of these experts with reports and they've met with Brian Koberger, they've evaluated him. They say, oh, look, you know, we believe, you know, one of their experts said, we believe that he knows what's going on. He understands what's going on. Yes, he has autism, but he, you know, has an IQ of 119, things of that nature. You know, the defense has tried to say

they continue to monitor his competency. It sounds like he can be difficult to deal with. He seems sees things in a very black and white way, doesn't see things in shades of gray. They've basically said it's hard for them to deal with him. How likely is it or unlikely is it that the judge is going to say yes to the state or no to the state, having their own expert evaluate him? I mean, is the judge going to say the state has to be allowed to have a psychiatrist or psychologist of their choosing meet with him to assess whether or not they believe he has autism or OCD or all of these other things? We start from the premise that people who've been arrested for violent felonies tend to have odd, troublesome, or disturbing personalities. Not all of them,

just most of them. I prosecuted the child rape case just last week where the defendant originally told his lawyer he was going to take the stand. And then just as this lawyer was about to call him, he said he wasn't. You can see the frustration on the lawyer's face. So defendants can be difficult to work with if you're a defense lawyer. I understand that that could be happening here. That's not a defense and that doesn't mean you're not culpable for the crime. It just means they tend to be difficult. And I have some empathy for the defense counsel who have to deal with that. But your larger question about whether or not this expert will be allowed, there's two different kinds of experts in a criminal trial. One is somebody who examines a set of facts and then offers an opinion. The other one is somebody

who actually examines the defendant in this case, which is unusual. And so allowing someone to have access to DNA samples so both experts can look at it, that's rather common. Having access to the defendant himself, who has a Fifth Amendment privilege against self-incrimination. So having the government's expert is a little different. I do think the judge is going to grant it just out of comedy, just fairness. But it is different to have the state's agent who presumably is going to tell the state everything he or she learns in that interview to interview a defendant who has a Fifth Amendment right to self against self-incrimination. And I was wondering about that, like that could be tricky. And so would the defense attorney be present for that meeting or at least maybe on the other side of the glass or something like that? Yeah, that would be up to the judge.

It's also possible that the judge might order a filter team between the expert and the prosecutors. A filter team is an outside, typically lawyer, not always, but outside lawyer who's not involved with the state, who would filter out anything that might be something that's attorney-client privilege that's learned so that whatever the expert tells the prosecution is something that relates to mental health and not to information that the defendant gave up as part of the interview that might be incriminatory. Now, I'm going to ask you to really speculate because the state filed for this mental evaluation back on April 25th. The defense then filed an objection to it, and then the state filed a response. And then all of a sudden, a sealed hearing, a closed hearing, which is really rare

in criminal cases. I don't think people understand how rare it is. A sealed hearing pops up on the docket for Monday, May 5th, and it was going to be a remote hearing sealed to the public. Nobody's allowed in. And is this probably related to this issue? Perhaps. The notion that the filings were sealed suggests that the closed hearing might be related. But I want to echo what you just said. A lot of people who watch law and crime know that cameras are not always allowed in courtrooms. Certainly in federal courts, that's true. And in many state courts, that's still an open court. If you wanted to go to that courthouse and wait in line and sit in the gallery, you'd be allowed to. The public is in there. But actually saying nobody from the public can be in the hearing, we see this in juvenile cases routinely because of the nature of juveniles. case. And the judge must have a very strong reason for doing it. We don't know what it is, but it's troublesome that a judge would shut down what should be an open court hearing. Yeah, especially when he's been very open about everything and sent something out telling the

parties not to seal things. So it's been interesting to watch. Our next proceeding in this case is on April 15th, a pretrial conference. We believe that will be open to the public and we are hoping it will be. So it'll be interesting to see what comes of that. Even the court minutes from that sealed hearing the other day, Mark, are sealed. So it would be nice to know just a little bit of information about what happened there. Yeah, May 15th should be an interesting time to see what the lawyers say. Maybe they refer back to what happened in the other hearing. I will say this.

I want to give a little credit to judges around the country. The death penalty cases are the most difficult cases they hear. Sure. And everything gets scrutinized on appeal. Most of my death penalty experience has been on the appellate side. When I was the deputy attorney general of Ohio, I worked on numerous appellate issues surrounding death penalty cases. And I can tell you, they get scrutinized at the state level. They get scrutinized at the federal level in writs of habeas corpus litigation. And so judges are being extremely cautious to do nothing to disturb the case so that it might so so that it won't be overturned on appeal. Yeah. And we know there's been a major spotlight on this case. I mean, it's been intense, the media coverage. We get it. But, you know, it doesn't mean things should be shut down. Mark Weaver, thank you so much. Appreciate it as always. Good to be with you again. Now, remember when prosecutors wanted Koberger's family excluded from the courtroom until after those family members had testified? Judge Hipler says that's not happening.

Hipler wrote, the scope of the family members' proposed testimony is very narrow and is not necessarily tied to the testimony of other witnesses. Further, the family members were previously interviewed regarding the matters on which they will be questioned at trial. These prior recordings serve to protect against any attempt by the family members to mold their testimony based on how others testify before them. In addition, the trial publicity is such that defendant's family members are likely aware of what the testimony and evidence will be in the state's case in chief. Thus, exclusion pending their testimony will not necessarily prevent them from confirming their testimony. Finally, the state has indicated it would prefer that the family members remain in

the courtroom and be called when the state sees fit rather than calling them as out-of-order witnesses. So, Koberger's family will be allowed in the courtroom throughout the trial. And this week, Dateline NBC has a new episode out on the Idaho case, and they're reporting that Koberger had searched serial killer Ted Bundy on Google. Bundy murdered sorority sisters in Florida, but had once attended college in Washington State. Dateline is also reporting that Koberger has photos of female students from Washington State University and Idaho State on his phone, and that some of those women were actually friends with some of the victims from King Road. In court documents, Judge Hippler has written that experts found no digital connection between Koberger and the victims. So stay tuned.

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.