Crime Fix with Angenette Levy - Bryan Kohberger May Use This Wild Theory in Murder Trial

Starting point is 00:00:00 Wondery Plus subscribers can binge all episodes of this Law & Crimes series ad-free right now. Join Wondery Plus in the Wondery app, Apple Podcasts, or Spotify. I think the most prominent question is how did that sheath get there? Brian Koberger's attorneys could claim the K-Bar knife sheath found next to Maddie Mogan was planted. I take a look at a bombshell claim from the prosecution that has just dropped in the latest battle over the sheath and Koberger's DNA. We're not just talking about his DNA happened to be found in, you know, a dresser drawer or something.

Starting point is 00:00:35 It was found on a knife sheath where four people were killed by a knife. This is as crime scene as it gets. Welcome to Crime Fix. I'm Anjanette Levy. There's no doubt one of the most critical pieces of evidence that prosecutors have in their case against Brian Koberger is a K-bar knife sheath that they say has Brian Koberger's DNA on it. The sheath is just like the one that you see in this photo, and Moscow police say that it was found on Maddie Mogan's bed right next to her. The DNA on that sheath is what led police to identify Brian Koberger as a suspect in the murders of Maddie, Kaylee Gonsalves, Ethan Chapin, and Zanna Kornodal. All four had been stabbed to death. The FBI used investigative genetic genealogy to trace the DNA

Starting point is 00:01:25 profile to Koberger through his family tree. But Koberger and his lawyers say he's innocent. Koberger's attorneys don't want the jury to hear about the IgG work and neither does the prosecution. In fact, the prosecution says it's only going to say that police received a tip pointing them to Koberger. And the prosecution has dropped a bit of a bombshell in a recent filing. Get this. They claim the defense isn't going to deny that the DNA on the underside of the snap of the sheath belonged to Koberger. In fact, the state is claiming that the defense is going the OJ route by claiming that the sheath was planted. Bill Thompson and Jeff Nye wrote,

Starting point is 00:02:05 the defense has not disclosed any experts to challenge the confirmatory STR comparison showing the DNA on the knife sheath matched defendant's DNA. On the contrary, the defense has disclosed that its forensic biology and DNA expert will testify that there is good support that Mr. Koberger's DNA was found on item 1.1, a swab from the knife sheath. Instead of challenging the conclusion that the DNA on the knife sheath belonged to defendant, the defense's expert disclosures reveal that the defense plans to argue that the DNA on the knife sheath does not prove defendant was ever at the crime scene and the knife sheath itself could have been planted

Starting point is 00:02:45 by the real perpetrator. Now, this isn't the first time the idea that the sheath or DNA on it could have been planted has come up. Back in 2023, the defense floated the idea in a motion writing, the state's argument asked this court and Mr. Koberger to assume that the DNA on the sheath was placed there by Mr. Koberger and not someone else during an investigation that spans hundreds of members of law enforcement and apparently at least one lab that the state refuses to name. We now know Othram Labs assisted with the IGD work in this case. And at a recent hearing, Ann Taylor brought up the sheath, raising the question of how it got on Maddie Mogan's bed,

Starting point is 00:03:28 since she says her client was never at the house on King Road. I think the most prominent question is how did that sheath get there? I think when you ask that question, I think you can have DNA on an object at a scene when you know about all of these other things and you don't find probable cause because there are more questions than there are answers. And all of a sudden, this one thing doesn't look as big. Now, the prosecution has argued it's a pretty big deal, even if you consider the two other unknown male DNA profiles were found at the house, one inside and one outside. We're not just talking about his DNA happened to be found in a dresser drawer or something. It was found on a knife sheath where four people were

Starting point is 00:04:11 killed by a knife. This is as crime scene as it gets. And that's where the DNA was found. And they can't cite any case law whatsoever. And so they try and just ignore that and skip over it and say, well, let's just talk about the DNA analysis. The defense has questioned how and exactly where the sheath was found many, many times. Recently, defense attorney Bicca Barlow wrote, a knife sheath was recovered tucked under the covers next to Ms. Mogan at 1122 King Road, Moscow, Idaho, November 13, 2022. But then in footnote two, it states, the exact location of the sheath is unclear in both photographs of the room and in the written description of its location. The body cam footage of one of the first officers on scene shows the

Starting point is 00:04:57 sheath tucked under the covers next to Ms. Mogan. Footnote three says, while item Q1.1 was tested for DNA, it was never subjected to standard biological testing for the presence of blood or saliva. In one exchange of emails, Ryleen Nolan describes the swabbing as being of the leather strap and internal metal area of the snap. The snap itself may not have been swabbed at all for DNA. The defense has no ability to retest based on the fingerprint process on the sheath. The defense doesn't want that DNA supervisor from the crime lab, Raylene Nolan, to testify that this was contact or touch DNA. They're asking Judge Hipler to bar Nolan from using those terms because they don't believe that she's qualified to say how and when Koberger's DNA

Starting point is 00:05:45 ended up on the sheath. The defense writes, here the terms touch and contact are misleading, and that the forensic community has determined through empirical research that it is not possible for a DNA expert to testify as to how DNA was deposited on an item. The two terms insinuate that the deposit must have come from direct contact with an object rather than the myriad other possible means of transfer documented in the literature. I want to take a second to talk about something that affects a lot of people. It's dandruff. Most people assume it's from a dry scalp, but it's actually caused by an overgrowth of a fungus called Malassezia. And that fungus, it feeds on the

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Starting point is 00:07:12 or tap the link below to get yours today. So I want to bring in somebody who has prosecuted a high profile death penalty case before. He is Mark Weaver. He has worked as a special prosecutor in Ohio, also works as a judge from time to time. So, Mark, what do you make of the prosecution's claim in this case? This is not the first time we've heard this brought up, that the defense is going to say that the sheath or the DNA on the sheath was planted and that it was Brian Koberger's DNA. They're not disputing that, but that the sheath or the DNA on the sheath was planted. You mentioned that I've worked as an acting judge. I get appointed to sit when the judge is out on training or sick. And so from that perspective, I can tell you that judges get tired

Starting point is 00:08:00 when defense counsel and prosecutors file so many pretrial motions that it appears to be trying to slow down the progress of the case. That's what's happening here. I've got no doubt about it. Some of your viewers may not know that there's now a website at the court clerk's office in Idaho that lists the dozens of filings between these two sides. We haven't even gotten a trial yet. That comes in August. This latest one is almost ridiculous. There's a standard in the rules of evidence that says you're not supposed to offer evidence that is more prejudicial than probative or that's so misleading to the jury that it shouldn't be allowed in. The notion that you shouldn't be able to use the word touch or contact DNA, which are standard terms now in criminal prosecutions, is ridiculous.

Starting point is 00:08:54 Brian Kohlberger's lawyers are certainly entitled, and they should give him a strong and fair defense. But now they are papering this case over and over and over with pretrial motions to the point where it makes you wonder if they have a substantive case. The prosecution is saying that Brian Koberger is going to claim the sheath was planted. And we've seen the planted evidence claim in the past. We've seen it in the O.J. Simpson case. And the defense has alluded to the sheath possibly being planted in the past. They did it back in 2023 in a motion. So what do you make of that? Because that's where they're going, it sounds like,

Starting point is 00:09:37 with this, that somebody put the sheath there and it wasn't Brian Koberger. So, I mean, it's just to me, it's like, yeah, it worked for OJ. But OJ, there was a whole lot more going on in the OJ case. We know that there were race issues at play. The Rodney King race riots that happened with that verdict. I mean, there were there were a lot there was a lot more going on at that point in time surrounding that case. But they're going to say essentially that the sheath was planted. Somebody other than Brian Koberger put it there or put his DNA on there and put it there. So what do you make of that? Let's remember, it was a claim, a false claim in the OJ case that the glove was planted.

Starting point is 00:10:22 Almost everybody who's filed that case knows that. Planting of evidence happens much more on TV shows and movies than it does in real life. I'm not saying it's impossible. I'm saying it's very, very unlikely. Now, we don't know exactly what the defense is going to say because their motion is sealed. We're gleaning this, the information you just shared with viewers, we're gleaning this from the prosecution's response to this sealed motion. What's most interesting about what the defense is saying, they're not going to argue, apparently, from what we can tell, they're not going to argue that it's not Brian Kohlberger's DNA. Instead, they're going to say, well, even if it is, wink, it was put there by some other evil perpetrator. Who in the world has any sort of motive to set up Brian Koberger for these murders?

Starting point is 00:11:15 Maybe they're going to say the police, but that doesn't explain the other information surrounding where he was with his car and other problems that suggest that this was the killer. And I think it's important what you just pointed out. We're going based on what the state is saying the defense said. So it could be a little bit of telephone game here. But I think it's important what you just mentioned. They are saying that the defense is not going to dispute that it is Brian Koberger's DNA. They're acknowledging, yeah, it's his DNA. I mean, their own expert is saying, according to the state, it's his DNA. But they're going to say that it was planted.

Starting point is 00:11:55 So, like, who put it there? And the defense is going to say, well, we don't have to answer that question. That's not our job. I mean, I've seen this play out a million times. You've seen it, Mark, that we don't have the burden. But when you raise that defense, don't you kind of shift the burden a little bit? Aren't you saying to the jury like, OK, like, well, you said so. So did you look into this? I mean, even though the defense is going to say it's not our burden, don't you kind of like aren't you going to aren't the jurors going to say, well, did you look into it to try to figure it out? You want to save your guy. Don't you want to know who did it?

Starting point is 00:12:28 My friends who are defense lawyers would tell us that they prefer a defense that my guy couldn't have done this because he has a great alibi and was somewhere else. That's not available in this case. So what the defense lawyers have to move to is the death by a thousand cuts, which is a bad analogy in a murder case involving a stabbing, but we all know what it means. It means let's just nibble away at every possible instance of reasonable doubt that they can inject into that jury's mind. But you make a fair point. There is an obligation, at least in the minds of the jurors, even if it's not a legal obligation, that if you're going to raise a scenario as a defense lawyer, you ought to have some credible

Starting point is 00:13:10 basis for it. Or does it look that you're just reaching? Does it look like you're just trying to create a smokescreen when there's something you're trying to cover up? All of the records in this case are sealed, unfortunately. And the judge recently took those sides to task over that. So there's a lot that we don't know. But the DNA in this case are sealed, unfortunately. And the judge recently took those sides to task over that. So there's a lot that we don't know. But the DNA in this case is certainly probably the most damning piece of evidence, Mark. I mean, without that piece of DNA, they would never have found Brian Koberger, or at least they would have been slowed down quite a bit in finding him as a suspect. But that is the big connection here. I mean, that is the forensic connection. And it's damning. It's very damning.

Starting point is 00:13:53 Yeah. Let's talk about your first point. For 20 years, I taught a class at the Ohio State Law School about media law and how lawyers interact with the media, with people like you. And one of the things I told my law students was trials are supposed to be open. They're not supposed to be secret. It's unique to the American system that we are proud of our open justice system. So of course, we don't want an unfair trial. Of course, we don't want to unfairly prejudice potential jurors, but the evidence is being filed by the government and the government works for us. I think the judge was right to call out both sides to say, stop filing sealed motions when we can be doing this in the light of the day. With respect to the DNA, let's remember that DNA is science that has been established now for decades. Maybe 30 years ago, jurors would look sideways at dna now they expect it in cases where i don't have dna when i'm a prosecutor i kind of have to explain to the jury why we don't have dna because they want it so touch or contact dna is a valid scientific result it shows us that either

Starting point is 00:15:01 he was there touching or he was there breathing. The most recent motion by the defense says, well, touch DNA doesn't mean touch. It could mean breathing. Either way, that suggests that Brian Koberger was in and around that knife and that knife was in that sheath and that sheath was in that house. Yeah. I'm going to be interested to see how they explain it because Ann Taylor has said in court he was never around that house. He wasn't there. He was in Moscow. He was never in that house. Well, then how does DNA get on the sheet? And if you're saying the DNA was planted, then you're saying somebody got his DNA and put it on there. Or you're saying he had a K-bar knife, which they've never said. You're saying he had a K-bar knife and then somebody took it. Aren't those your two possibilities?

Starting point is 00:15:46 Well, and you have to add in that his Amazon search history suggests that he bought a K-bar knife. And so there's other little things that come along with the sheath. This is coming together as a pretty strong case from the state. Not just because people are upset about these crimes, because you should always be upset about a murder or a serious felony. But this is coming together as a nice case. And you can feel the defense flailing. One of their latest motions, I don't know if you want to cover it, is that somehow he's on the autism spectrum and they're appropriate to have him executed. That is not a proper defense. The U.S. Supreme Court case on point dealt with somebody with a 59 IQ as being

Starting point is 00:16:26 not appropriate for the death penalty. This guy was a Ph.D. student. And so you could see there's a sense that there's flailing. And I find that interesting that you brought that up. We've covered that a couple of times here. I do want to go back to the Amazon thing. I mean, we don't that's been kind of talked about a lot, but we don't know for sure. We've never seen it in a court document because everything is sealed. But now hopefully it's not going to always be sealed. I hope Judge Hipler goes back and, you know, unseals. We've been calling it the great unsealing on my personal channel.

Starting point is 00:16:59 But it's been it's been something to watch unfold. They do. I find it interesting. The defense wants to exclude Brian Koberger's Amazon click history. They say it's a shared family account. So they've tried to get a lot of stuff thrown out in this case. And now they're saying, don't let the click history in. It's unreliable. What he was looking at or what he might have put in his cart. So and there's also things that he purchased at Dick's Sporting Goods that the state wants to bring in, a lot of purchases he made.

Starting point is 00:17:29 So obviously, if they don't want it in the Amazon Click history, there's got to be something incriminating in there. Jurors are smart. They can figure these things out. If they find a knife purchase, go ahead and put that on the stand as a defense counsel. And dad says, oh, I need a new hunting knife. And now I bought that myself. Jurors can figure this out. This evidence should come in. Let the jurors make a decision. Mark Weaver, thank you so much. As always, I appreciate your time and your expertise.

Starting point is 00:18:02 Thank you. I want to bring in Kristen Slaper. She is a DNA expert, actually worked at the Crime Lab in Ohio for 17 years. So I want to get your thoughts on this, Kristen, first off on the defense, not wanting the DNA supervisor, the DNA lab supervisor at the Crime Lab in Idaho to be able to use the terms touch and contact DNA when she testifies at trial. So thanks for having me. And I think the inability to use the words touch and contact, you know, it's one of those things that we naturally want to say or associate where a DNA profile came from. When you get something on an item, it either came from a body fluid or you want another explanation as to how it got there. So I think that it's a natural instinct for those of us that work in the field to say it's contact DNA or it's touch DNA. It's epithelial DNA is another term that you might hear. But regardless, it's DNA that came from something

Starting point is 00:19:07 other than a body fluid where we didn't do some type of testing. And we just want to say it's, you know, it would be from a person contacting that item. So in this situation, a knife sheet, somebody would have to probably touch it in order for their DNA to be left on it. I understand the defense's argument because they're trying to say that the DNA was planted. So trying to give that the appearance that that DNA necessarily, it wasn't from him touching it. It was from someone else putting it there. So in our situation, we would probably just say it was swabs from the knife sheet instead of associating it with touch or a body fluid.

Starting point is 00:19:46 Is there any way, though, that they can go back at this point and determine whether it was saliva or blood or skin cells? Is there a way to determine that? So remember, DNA is in every nucleated cell in your body. So DNA is in the cells that are on your skin. DNA is in blood, except for the red blood cells. It's in white blood cells in your mouth. It's in the saliva, but those are those same epithelial cells that are being shed from the surface of your DNA or the surface of your mouth. So in essence, there really isn't a way

Starting point is 00:20:25 to tell one epithelial cell from another. Again, the way we would distinguish that is body fluid versus just from quote unquote blind swabbing or taking a swab of the item. So essentially, no. In addition, what I would say is that if they already swabbed the knife sheath and they took a lot of that DNA off of there, there's probably not much left on there to do further testing.

Starting point is 00:20:50 So this is going to be a question for the jury to answer. How did the DNA get on there? I mean, that's the ultimate question. Yes. We always said, and they have it in their argument, that you can never say when DNA got there. You can never say when DNA got there. You can never say how DNA got there. So the defense is basically saying, Kristen, that there are many complicated factors that can influence the likelihood of the transfer of DNA and the persistence of the transferred DNA after deposition. And they're saying basically the quantity, they're revealing this in one of the filings, that it was 0.168 NG per UL. And so I

Starting point is 00:21:28 guess that the woman from the crime lab, Riley Nolan, was going to testify that she believed this was the result of a direct transfer rather than a secondary transfer or whatever. So 0.168 NG per UL. Tell me how much DNA is that? Is that a lot of DNA? Is that a little bit of DNA? So in my opinion, that's a lot of DNA. That's 0.168 nanograms per microliter. And at least in my lab, we would run, we would target, you know, one nanogram of DNA. So you would need one microliter, which is a very tiny amount. If you took all of that sample and you put it into the system, it would be way too much for the system to handle to produce a DNA profile. It all, the amount of DNA, the target that you

Starting point is 00:22:18 have for your system is all based on lab validation. So this lab would have had a validation that said this is the ideal amount to get a single source profile or whatever. But you can get a DNA profile with far less DNA than what is there. So I think it's a decent amount of DNA. Can you say where it came from? No. I think the other thing that's important is it's single source. So when you start to talk about transfer, and I think even in one of the documents, they have a diagram of the different types of transfer, whether it's primary transfer, secondary. When you're talking about a single source profile that has been transferred onto an item, it seems like it stands to reason that it is from the direct application of that DNA onto that item.

Starting point is 00:23:07 Now, if you're talking about touch DNA, you know, people shed DNA in various rates. And that's one of the biggest arguments that you'll find is that there's no way of knowing if I touch something one time and then you swab it when you get my profile off of it versus if you swab the same item, you may shed more DNA or more skin cells onto an item than I do. So there's no way of knowing, but ultimately it's from one person, which means if someone else transferred Brian Kobarger's DNA onto this item, they had to have something from Brian Kovarger and put it on the item without also mixing themselves into there. So the biggest case that, you know, probably in the history where Lansing evidence was known is the O.J. Simpson trial and or the O.J. Simpson case. And if you recall the evidence in that case, there was a lot of it. But they had a vial of OJ

Starting point is 00:24:07 Simpson's blood that they had collected from him. So the idea that they could take his blood and potentially put it on items to plant the evidence, blood has a lot of DNA in it, and they could then take it. They would have had to know who Brian Kovarger was. They would have had to have a sample from him and also put only his DNA onto this item. Yeah, interesting points. All of those are interesting points. And in that case, it was in the O.J. Simpson case, we clearly had the bloody glove. So that was clear what that DNA was. And we had a bunch of other things going on in the OJ case, too, that influenced that verdict. So it'll be interesting to see what the judge allows as far as testimony goes and how this all works out. We also know, Kristen, from reading the documents, there was apparently a mixture of blood, as you would expect, on that sheath that was revealed as well. And I'm assuming they didn't reveal who

Starting point is 00:25:06 the blood mixture was from, that it would be from the victims. I think the other thing to keep in mind is that the item that this is found on is a knife sheath. That is pretty intimate to the situation or the case, right? I mean, these kids were stabbed. And I think that a knife sheath is relevant. You didn't find his DNA on a piece of paper in their apartment or a pop can or something like that that maybe is unrelated. So I think that that's another important thing and the location where it was found. I believe it was found in one of the beds with the victims, you know, tucked underneath something. I think that that's also important is the proximity to the situation and the actual piece of evidence that it was.

Starting point is 00:25:50 Yeah, all very interesting points. Kristen Slaper, thank you so much. Appreciate it. Welcome. Thanks for having me. And that's it for this episode of Crime Fix. I'm Anjanette Levy. Thanks so much for being with me.

Starting point is 00:26:01 I'll see you back here next time.

Crime Fix with Angenette Levy - Bryan Kohberger May Use This Wild Theory in Murder Trial

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