Crime Fix with Angenette Levy - Bryan Kohberger Slams State Over Evidence in Idaho Case

Episode Date: April 1, 2025

Bryan Kohberger’s lawyers claim police and prosecutors are withholding critical evidence that could help their client at trial. But prosecutors say they don’t have the cell phone records that might pinpoint his location the night four University of Idaho students were murdered. Kohberger’s lawyers also claim he couldn’t physically carried out the murders. Law&Crime’s Angenette Levy looks at all of the claims in this episode of Crime Fix — a daily show covering the biggest stories in crime.PLEASE SUPPORT THE SHOW: If your child, under 21, has been diagnosed with type 2 diabetes or fatty liver disease, visit https://forthepeople.com/food to start a claim now!Host:Angenette Levy  https://twitter.com/Angenette5CRIME 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. Don't get caught up in thinking seven minutes don't matter here. We're talking about ground that can be covered in a vehicle in a short time. Brian Koberger's lawyers waging a war of words over his cell phone records as they claim the state has it all wrong when it comes to where he was the night four University of Idaho students were murdered. I look at that and other reasons why Koberger's lawyers claim he couldn't have possibly physically carried out four murders in a matter of minutes. Thanks for joining me.

I'm Anjanette Levy, and this is Crime Fix. And before we get to the very latest on the Idaho case, I want to tell you about our brand new Law & Crime YouTube membership program. We have three levels. Armchair detective, amateur attorney, and honorary judge. All have exclusive perks like badges and custom emojis, including one of my face, yes, and my favorite part, members only live streams that I'll be hosting with your favorite guests to chat with you and talk about the true crime cases you are following. So click the link in the description to become an official Law and Crime member. You really don't want to miss out on the live streams.

They're going to be really great, and I'm excited to see you there. Now back to the Idaho case and that seven minutes that I mentioned that Brian Koberger's lawyers say could make the difference between him going free or possibly being sent to death row. Their beef is all about Brian Koberger's cell phone and the records. Koberger's lawyers are also claiming he couldn't have physically carried out four murders because of a condition he has. More on that very, very shortly, along with the defense's explanation for some of his behavior that the prosecution has labeled incriminating. You don't want to miss that. And there are other details that Koberger's lawyers have revealed about the state's case. So stay tuned. But back to that seven minutes. It has to do with Brian Koberger's cell phone and a very specific set of records. Koberger's lawyers are accusing prosecutors of holding back evidence about his cell phone location records, and they're using fighting words in doing so. Koberger maintains he's innocent and that he didn't murder Maddie Mogan, Kaylee Gonsalves, Ethan Chapin, and Zanna Kernodle at the house

on King Road in November of 2022. The records that Koberger's lawyers and his cell phone expert want are called timing advance records. Koberger had an AT&T phone and his lawyers say those records will accurately pinpoint where his phone was and the direction that he was driving on the night of the murders. Now, there has been a lot of back and forth in court documents about these records. In fact, the state asked Judge Hipler to bar the defense from even mentioning these records during the trial. Prosecutor Ashley Jennings wrote, the state has been advised and will offer documentation and or testimony that AT&T records are produced by their global legal demand center, GLDC. AT&T GLDC did not begin producing timing advance records until May of 2023. All records

for defendant's phone were obtained from GLDC in December 2022. So that's what prosecutors said back in February. And they claimed that allowing Koberger to tell the jury that additional evidence could have been provided and wasn't was a mischaracterization. The defense fired back, saying it agreed partially with the prosecutors, but only partially. The lawyers wrote, the actual records from AT&T and for cell towers and individual timing advance records for two of the four deceased and one for a person who had been a person of interest at the beginning of the investigation, as well as over 3,800 people on the cell tower. These records were from November of 2022 and were produced in discovery to Mr. Koberger in 2024. Now, there's a bit of a catch here. The defense says the state

has these records, but the state says it doesn't. Prosecutors wrote in response regarding AT&T before June of 2023, AT&T retained timing advance records for seven days. These records were not routinely provided in response to legal demand prior to June of 2023. After June of 2023, AT&T started providing these records pursuant to legal demand and began retaining timing advance records for 13 months. This is a law and crime legal alert. are being diagnosed with serious conditions like type 2 diabetes and non-alcoholic fatty liver disease, and research is potentially linking ultra-processed foods to these outcomes. Morgan & Morgan is stepping in to fight to hold food companies accountable. With decades of experience fighting large corporations,

they are ready to stand up for families who deserve justice. If your child under the age of 21 has been diagnosed with type 2 diabetes or fatty liver disease, visit www.forthepeople.com slash food or scan the QR code on your screen to learn more. So prosecutors say they don't have these timing advance records because Brian Koberger wasn't identified as a suspect until December 19th, more than a month after the murders. And at that time, AT&T was only retaining those records for seven days, not 13 months as they are now.

Now enter Cy Ray, the defense's cell phone expert, who just filed a declaration saying he believes those records are available based on his experience. Ray wrote, In my nearly 30 years working with and for prosecutors all over the United States, I have never witnessed such a deliberate attempt by prosecutors to mislead the court on evidence in plain sight. Anyone making such a claim would have to believe the court is incapable of reviewing physical evidence in possession of the state and the

defense. It rises to a level beyond a simple miscommunication or oversight and is clear and intentional misrepresentation in the hopes to conceal a much larger issue. That sounds really ominous. So why are these records so important? Well, Brian Koberger's attorneys say these records are more precise in showing a phone's location and will partially corroborate his alibi that he was at a park. And it has to do with what white car was seen on which surveillance cameras and when. Ann Taylor talked about this at a hearing back in January. In the first AT&T warrant, in that affidavit, the police officer talks about 2.42 a.m. that WSU cameras, because they start looking at

WSU cameras after the IgG identification, they find a white car that they say is an Elantra at 2.42. So they get the phone records and then it becomes 2.44 that they say Mr. Kober is leaving his residence 244 a.m. And the place near Bishop Boulevard where one could turn to go to Moscow at 242 is inconsistent with 244. But they don't correct that. They don't correct that. They don't say that vehicle at 242 cannot have been the right white Elantra running around that night. Because we now know it was at 2.44 a.m. They want to keep that in there because they want the car positioned like it's going to be going to Moscow. Ann Taylor claims that Brian Koberger's car was not going to Moscow and that there was another white

Elantra driving around that night. And here she explained another reason why those timing advance records are so important to her case. They then report the car, the phone stops reporting to the network at 2.47 a.m. And that's not right. We submitted their cell experts report that say the phone stops reporting at 2.54 a.m. We submitted two affidavits to you from our experts who have worked with the call detail records. And that's just not right. Don't get caught up in thinking seven minutes don't matter here. We're talking about ground that can be covered in a vehicle in a short time. We're talking about two towns that are fairly close together.

And so the way a car points when they go off the network matters a whole lot in this circumstance. That's not corrected in any of the affidavits. That's the part that's really exculpatory to Mr. Koberger is what direction, when the phone stops reporting to the network, what direction is the car traveling? And you can know that based on the cell towers, the handoffs from tower to tower, as it tracks where a phone's going. The FBI knows how to do this. They chose not to do this. They chose to pick a time seven minutes before it really stopped reporting. And they chose to make a map that showed a direction that that phone wasn't traveling in to create a false narrative. So at 2.54, Brian Koberger's phone stops reporting to the network. The prosecution says that's because he turned it off because he was going to go commit a murder.

The defense says it just stopped reporting to the network. So there's that seven minutes that the defense says is so important between 2.47 and 2.54. Ann Taylor claims the state's experts have it all wrong when it comes to where Brian Koberger's car was traveling. And there's another reason why the defense is upset about the state's cell phone expert, FBI agent Nick Balance. Balance analyzed cell towers around the house on King Road and did a drive test that included a 100-meter radius around the house. He's going to testify that Koberger's phone accessed cell towers within that 100 meter radius on 23 separate occasions between July 9th, 2022 and November 7th, 2022. That was six days before the murders. And he looked at the time period between 10 p.m. and 4 a.m. 100 meters is roughly 328 feet. So Agent Balance is going to testify that Brian Koberger's cell phone

was within 300 feet of the King Road house 23 times over a four-month period before the murders. Ann Taylor had addressed Koberger being in Moscow at that hearing back in January. Those cover places that one shops, places that one eats, places that one gets gas in Moscow. From the records, you can see handoffs. And so you know where a vehicle is going. You can know whether it's stationary or not. You can know whether it's parked, looking at a particular place or not. Based on those records, we also provided the records just so the court would know there's a volume of records. I don't expect the court to decipher those records.

Based on those records, they absolutely knew that Mr. Koberger wasn't around that residence, wasn't parked near the residence, didn't stop and have his phone in a stationary position at that residence. They absolutely knew that that's not what was happening, but they put it in there to make a connection that didn't exist. They put it in there so that the judge would think that this was the right person and they shouldn't have done that. They knew that was incorrect. So to talk about this whole thing about the cell phone records, and then later, we're going to talk about Brian Koberger's OCD and all of these other things the defense says he has. I want to bring in Philip Dubé. He works as court appointed counsel in California. So a case like

this could very well land in his lap. Philip, I want to know what you think right off the bat about this whole issue about Cy Ray, the defense's cell phone expert, claiming that the state has these records. Somebody's got these records, whether it's the FBI or the cops or whomever, and they're just not turning them over. So the state's saying, no, those records weren't available back in 22. It seems kind of like a big mess. Well, I think there's a difference between having the records and not turning them over and not having them at all. I'm going to give the prosecution the benefit of the doubt. When they say they don't have the records, I take them at their word. They say they don't have them. The real question is, why don't they have them? Did they fail to request them? If they fail to request them, I find it hard to believe that law enforcement did not tell them that they need to have those

records or should have those records, because at a minimum, they could exculpate Brian Koberger. It is standard practice, particularly in the last five years, to get location data, all location data from cell sites, from cell phone companies to help locate the actual device at the time of a crime. called, I believe it's called trilateration, they can determine based on how the radio signal from the base reaches the phone and goes back to the base at the speed of light where that phone is at all times. They can measure that. I find it a little suspicious that they didn't request it. Now, again, it's not to say that it was done on purpose, but I do think it could constitute a violation of due process. The bigger question, though, is to say why is to ask why they insist that the records do not exist. Is it they do not exist right now because they let too much time go by to allow for the purgation of those records? Or did they in fact exist? They failed to ask for them. Or they were told that

they existed and never asked for them. So there's a lot of unanswered questions. And how you resolve it is you bring AT&T into court, and you have them testify from their legal department, or from one of their records custodians departments. Well, the state says, A, they requested them because there's like emails about this with the FBI, with Nick Balance, the cell phone guru for the FBI, where he told them to request this stuff. So they requested it. The state's saying back then in December of 2022, the retention period was seven days. Now it's 13 months.

We requested Byron Koberger's records on December 13th. The homicides happened on November 13th. So the seven days was was up. So therefore, we don't we don't have those records because they were gone. But, you know, the defense is claiming that that the lead investigator testified about this and said he had seen the records. So I think it's very messy. And I think you have a very good idea about bringing AT&T in to say, yeah, we turned them over or we didn't or we had them or they didn't request them.

I mean, this seems like this could be a pretty simple thing to get to the bottom of. Yeah. And I'd like to see if the legal department, specifically their custodian of records, actually received a demand for the records, either by way of subpoena, court order or search warrant. diligent search. We cannot locate these records. These records do not exist. Or alternatively, with a statement under oath in their declaration stating that our retention period is merely seven days, we are not a perpetual repository of contents of cellular data. We do not have the capacity to store this data. The real question is, did they say it? Did the records, in fact, exist? And if they did, and the state failed to double down and try to get those records, I think it's outrageous. And frankly, I think at a minimum, they should get a jury instruction with an adverse inference against the state that they're playing games. Well, we're going to wait and see how it all unfolds,

because there's going to be a big hearing next week on April 9th, where they're going to hash all of this out. So let's move on now to the other big piece of this whole cell phone thing. And they're saying, the defense is saying basically that the cell phone analysis of Nick Balance shouldn't be allowed. He is saying that Brian Koberger's phone was within a football field of the King Road house on 23 occasions between July and November of 2022. So Ann Taylor had said in an earlier hearing that that phone, he was in Moscow, but that phone was never stationary at that house. So he was not stalking anybody in the house or anything like that. But this Nick Balance is going to testify.

He did these drive tests. He did all of this analysis and that that phone was within 100 meters of that King Road house. And Taylor says this shouldn't be allowed. He hasn't just disclosed his methodology. We don't know how he reached these conclusions, et cetera. Your thoughts on that? Because that seems like a really, really bad fact for the defense if his phone is within, is that close to the house 23 times. Yeah. And all the more reason for needing and wanting that timing advanced data, because that would resolve it. Now, having said that, I think the reason why this is a critical issue for the defense is because if they have proof that he was within, let's say, 100 meters of the house on 23 separate occasions, unannounced, uninvited, it certainly raises the specter of him casing the place and that this was premeditated and long thought out way before the murders. So what they need to do is they need to get their own

expert. They need to get their own expert, such as Cy Ray, to take the stand and talk about margins of error, meaning just because the state says that he was within 100 meters doesn't mean it's true. If the margin of error can show that maybe he was a third of a mile away, a quarter of a mile away, or a half a mile away, That is not proof of tasting. That is not proof of just sort of staking out the property. It just means you're in the vicinity, you know. And I think that in the end, it could become a battle at the experts. But all the more reason why the defense meets that data.

Let's move on now to all of these issues that Brian Koberger has. You know, the state does not want any neuropsychological evidence introduced at trial. They filed a motion saying no dice. The defense says, no, we should be able to tell the jury that he has autism spectrum disorder, obsessive compulsive disorder and something else called developmental coordination disorder. I want to start with the autism stuff. And they say they should be able to tell the jury about this because of the way he looks and the way that he acts. And so I want to put something up on the screen where it talks about his flat affect. The defense says, for example, he does not show emotion on his face. He has a flat affect. He sits

very still and holds his hands in the same position. He has a piercing stare. He does not show expected reactions. Facial expressions do not reflect what he is feeling. He is stiff in body posture. He has prosody in speech, uses repetitive phrases and large words and has developmental dexterity problems. I mean, does that matter? Can't they just coach him even if he's got some issues because he has this level one autism spectrum disorder? Can't they work with him, Philip? I'm playing devil's advocate here. Or is it really that bad that they may not be able to help address these things? Well, it's a great question. In other words, does it matter is really sort of a lay person's way of asking, is it relevant? And the legal definition of relevance is that a fact or some offer of proof has a tendency and reason to prove or disprove a disputed fact, meaning one of the elements of murder or an element of their defense. If their defense is he didn't do it, then his awkwardness, how he sits, how he fidgets, how he stares, how he does selfies and all that kind of stuff doesn't prove or disprove a disputed fact.

Where it may come in handy and it will come in handy is in the penalty phase. So assuming he is convicted in the guilt phase, that is excellent evidence in the penalty phase is mitigation to hopefully spare his life. But I don't see the judge allowing that in. I would be very surprised. Again, it's only because they're not putting on some type of ASD defense. If they are, they're essentially admitting guilt. By doing that, you're saying, look, my client did it, but give him a break. You know, he's not morally reprehensible because he's a victim of Mother Nature. He was born on the ASD spectrum. It is not his fault.

It's not his mother's fault. It's just sort of one of the burdens that is borne by society. And it's a tough sell. In fact, it never would sell. All right. Let's move on to the obsessive compulsive disorder. burdens that is borne by society. And it's a tough sell. In fact, it never would sell. All right, let's move on to the obsessive compulsive disorder. They say he's totally OCD. I want to put this other passage up on the screen. Mr. Kohlberger has sleep difficulties and subsequently developed a habit of night driving or running to decompress, such behaviors being present most of his life. He also engages in frequent compulsive hand

washing. He wears gloves to avoid germs, has a fear of things getting of his life. He also engages in frequent, frequent compulsive handwashing. He wears gloves to avoid germs has a fear of things getting into his eyes. He changes his shower curtain frequently to avoid exposure to mold and avoids anything he views as contaminating. If the state elicits testimony at trial related to these types of facts that are used to build circumstantially, the elements of the crime or show Mr. Koberger's actions as reflecting his state of mind or other elements of the crime.

He will refute that evidence through expert testimony as behaviors related to his OCD and his ASD. And then they go on to mention the fact that Brian Koberger was putting his garbage at the house in Pennsylvania when he was arrested. He was putting his garbage in baggies and he was wearing gloves. And the state's going to say he was doing that so he wouldn't leave his DNA anywhere. And the defense is like, no, no, no, he's OCD. He just does this stuff. Then I think it's well taken, to be honest. Remember, they're introducing evidence against him, evidence of guilt. Remember, the definition of relevance is, does the offer of proof have a tendency and

reason to prove or disprove a disputed fact? If the fact is it's all premeditation, he's using gloves, he's trying to conceal the evidence, he's trying to prevent detection of evidence, but you can refute that and counter it by showing, no, that's not what he's doing. He's a germaphobe. You know, he gets creeped out by microorganisms. That's just how he lives. He swaps out a shower curtain regularly. You know, he doesn't shake hands with a bare hand. He doesn't touch doorknobs. He doesn't even like opening up his own garbage can. And if he does, he wears gloves or he has a napkin in his hand. I think that is fair game to rebut it. Otherwise, it just leaves it out in the open that he's trying to go undetected. So I

think that should come into that purpose. But I don't think either side should be able to mention it in their opening statement. It should only become an issue once the prosecution intends to introduce that evidence. Unless and until they do, then the defense's ability to rebut it legally is irrelevant. You have to wait until it becomes relevant. And next, they say as developmental coordination disorder. Let's put this other slide up on the screen. It says the state has disclosed evidence that law enforcement will testify they did test runs at 1122 King Road and that it is possible to commit four homicides in a time frame of only minutes, including walking to and from a car and

removing clothing that would be covered in blood. So they think that he took bloody clothes off. That's going to be part of the state's theory and then got in his car and drove away. And they then continue to write. It will be relevant for the jury to know that Mr. Koberger has a developmental coordination disorder that impacts his fine motor dexterity and visual motor functions, such speed and coordination are not possible for him. So they're saying basically, Philip, he can't go into a house and kill a bunch of college kids who are drunk, heavily intoxicated with a huge knife because he's got this dexterity disorder, developmental coordination disorder? Well, if the prosecution is going to introduce evidence that he did have, in fact, the ability to do this within that time frame,

that limited time frame, then really what they're trying to do is offer up a reenactment. And reenactments, either through testimony or demonstrations, have to be a fair, accurate, reasonable depiction of what really occurred. You can't just have somebody come in and just do a recreation without any specific facts. So, for example, if the person who's doing the reenactment had met with Mr. Koberger and garnered information from him, had him walk about, had him do his own sample walks back and forth, circle around, then there is a basis, a reasonable scientific basis to suggest that their depiction is fair, accurate and reliable. But otherwise, I think it has a tendency to mislead the jury. Jurors are hung up on junk science. They really are.

And someone takes a stand and says, oh, he has the right build. He has the right stature. He can do this. He has the right weight, the height. He has the bushy brows. Look at the length of his arms. Look at the fact that he had that scabbard through Amazon. And just try to tie in all these nuggets to suggest that he had the physical wherewithal to do it, I think is junk science.

That's my own opinion. So in response, the defense has to be able to counter it. If they're not allowed to counter it, the judge shouldn't even let it in to begin with. Yeah, I mean, that seems fair. You know, the state counters by saying, well, yeah, he used to have these issues in the past and it had to do with him not being able to tie a shoe and then bad handwriting and stuff like that. They also, Philip, they did scan the defense, did scans of his brain and they said, you know, this shows this is not like a mental health thing. This is more like he's got some structural issues in his brain. So, but I think that's more mitigation evidence than anything. Philip, thank you so much for coming on as, as always. I appreciate your time.

Thank you again. And that's it for this episode of Crime Fix. I'm Ian Jeanette Levy. Thanks so much for being with me. I'll see you back here next time.