Crime Fix with Angenette Levy - Yes, Bryan Kohberger Can Still Appeal — Here's Why

Episode Date: July 27, 2025

When Bryan Kohberger agreed to plead guilty to the murders of four University of Idaho students, he agreed to waive all appeals in exchange for the death penalty being taken off the table. But an Idaho case that went to the U.S. Supreme Court actually allows Bryan Kohberger to file an appeal. Law&Crime's Angenette Levy talks with former court-appointed counsel Philip Dubé about the case and the consequences of Kohberger doing so in this episode of Crime Fix — a daily show covering the biggest stories in crime.PLEASE SUPPORT THE SHOW:If you received Depo-Provera birth control shots and were later diagnosed with a brain or spinal tumor called meningioma, you may be eligible for a lawsuit. Visit https://forthepeople.com/lcdepo to start a claim now!Host:Angenette Levy  https://twitter.com/Angenette5Guest:Philip Dubé  https://x.com/PhilipCDubeProducer: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. Though you've waived your right to appeal, you do have a right to file a notice of appeal. You thought Brian Koberger couldn't appeal, but that's not true. He can. I look at why he can still appeal despite his plea agreement saying he's waiving all appeals. Welcome to Crime Fix. I'm Anjana Levy and I'm coming to you from the Ada County courthouse

in Boise, Idaho. This is where Brian Coburger's case was handled for many, many months before he was sentenced, of course, for the murders of those four beautiful University of Idaho students, Maddie Mogan, Kaylee Gonsalves, Ethan Chapin, and Zana Cronodal. A lot of questions have been raised about the fact that Brian Coburger waived his right to appeal, and that is true. But Judge Stephen Hippler, he raised a lot of eyebrows and a lot of questions when he said this during a hearing. Take a listen. I recognize the plea agreement includes a waiver

of the right to appeal, but as the parties probably know, the U.S. Supreme Court in Garza versus Idaho has indicated the fact that a defendant waives the right to appeal doesn't mean they don'tives the right to appeal doesn't mean they don't have the right to appeal. And so it may affect the outcome of that appeal and it may affect the underlying case and

the plea agreement. But nonetheless, the right to appeal does not go away because of the waiver. And so I think it is important for that time period to also play itself out to see that it goes the way that I think people intend and expect it to. And so I will be entering an order in the next week or so outlining the process for the review of the sealed records. So yes, Brian Coburger, despite waiving appeals, could still appeal because of a US Supreme Court case called Garza v. Idaho.

We're gonna talk more about that in a moment because it sounds really confusing. He's waiving his appeals, but he can still file an appeal. It doesn't seem to make sense. Judge Hipler, again, brought up at the end of the emotional sentencing hearing that Brian Coburger still has a right to appeal. Though you've waived your right to appeal, you do have a right to file a notice of appeal.

And any such appeal must be filed within 42 days the date of the written judgment, which will be entered shortly hereafter. Though the appeal, you should be aware, may be deemed a violation of the plea agreement. And so I certainly suggest you discuss that with counsel if that is your desire. Now from the date of Coburger's arrest on December 30th of 2022,

to his sentencing on July 23rd, 2025, he'd been in custody for more than two and a half years. Many, many, many motions had been filed and Koperger had lost nearly every one of them. He had very few wins, if you will. That's likely why he decided to plead guilty. The case against him had a mountain of circumstantial evidence, including DNA on a knife sheet, video of his car circling the crime scene like a vulture. An eyewitness that his defense attorneys conceded

would essentially identify him by saying a masked man in all black with bushy eyebrows was walking through the house. And then there was the cell phone evidence. Laetaw County prosecutor Bill Thompson outlined the case during the plea hearing. The defendant entered the residence of 1122 through the kitchen sliding door on the backside of the residence, which is the side entered the residence of 1122 through the kitchen sliding door on the backside

of the residence, which is the side of the residence that would face the area above where the defendant's car was parked. Defendant entered the residence, went to the third floor, and with a knife killed Madison Mogan and Caitlin Goodsall. The defendant, as he left that room for whatever reason, ended up leaving or the sheath for a K-bar knife was left on the bed next to Madison Mogan's body. And I can jump ahead. That sheath was tested by the Idaho State Police Forensic

Lab, and single source male DNA was found on the snap of that sheath, as well as blood from both Caley and Madison and other trace evidence. But it's important to note single source male DNA was on the snap of that sheath. The state's evidence would show that Zana Connodel was still awake at this time. In fact, had taken a door dash order not long before this started. Her room was not on the third floor, it was on the second floor on the west side. As the defendant was either coming down the stairs or leaving, he encountered Zana and he ended up killing her also with a large

knife. Ethan Chapin, Zana's boyfriend, was asleep in their bedroom, in her bedroom, and the defendant killed him as well with a large fixed-blade knife. Each victim suffered multiple wounds. This is another Law and Crime Legal Alert. If you received Depo-Provera birth control shots and were later diagnosed with a brain or spinal tumor called meningioma, you may be eligible

to take part in a lawsuit. Morgan & Morgan is investigating claims that patients were not properly warned about this risk. It's free to check, just takes a few minutes and you don't pay unless they win. So scan that QR code that you see on your screen, click the link below, or go to forthepeople.com slash LC depot to see if you qualify. This was just a brief overview of the case. Thompson then described surviving roommate Dylan Mortenson seeing Brian Coburger, the man in all

black, and Coburger's desperate attempt to flee the neighborhood. During the course of this, one of those roommates awoke, looked out her door not knowing what was going on, and saw the defendant who was dressed in black with a black belt and a coat on holding some sort of container in his hand. And she saw him leave the house through the direction of the kitchen where that sliding door is that I mentioned before. At approximately 420 that morning, so this would have been 15 minutes or so later, Finn's car is seen on a surveillance camera for 1112 King Road, which is immediately next door to the west of 1122, leaving the area at a high rate of speed. And if the court were to see that, or anybody in this courtroom would see that,

you can see the car almost loses control as it makes the coroner heads north and then turns to go south on Wilinta, which is one of the only ways to get out of that part of town. The evidence would show that following that, the defendant in his Elantra drove south of Moscow. We know that he drove on the back roads because there are surveillance cameras on the main

highways, Highway 95, that would have picked up the defendant's car if he'd gone that route and they did not show the defendant's car on that route during the time. So we know that he went through a variety of back roads and very rural isolated part of Laetaw County. About 448 that morning, the defendant's phone comes back on. And the evidence will show that that phone was located south of Moscow, likely at a side road intersection with Highway 95. From there, the defendant's phone activity tracks heading back north towards Pullman, Washington, where the defendant lived. Koberger and his team, they likely realized this was all too much to overcome.

And despite winning a change of venue motion, which moved the case to Ada County in Boise, a jury could have found him guilty and sentenced him to death by firing squad, which is now Idaho's primary method of execution. I want to bring in somebody who knows all about criminal defendants and their rights and their rights to appeal. He is Philip DuBey. He worked as court appointed counsel in Los Angeles County for many, many years.

So Philip, there's been a lot of talk about what Judge Hipler said regarding the Garza v. Idaho case and the fact that Brian Coburger can appeal. So a clear up for us, what exactly this means, because people heard what Judge Huppler said and they thought to themselves, wait, I thought he waived his right to appeal.

I thought he waived all of his appeals. Yeah, unfortunately, it really is sort of a right without a remedy for the state. Back in 2019, ironically, out of Idaho, the US Supreme Court handed down Garza versus Idaho. And an issue in Garza was Garza was a drug defendant. He pled out, took a deal, but then decided to appeal. And he calls his counsel and said, I need you to appeal. And of course, counsel said, no, it's ill-advised. It's not a good idea. And of course, he independently appealed and it went all the way up to the high

court and the court reversed and the court found that that is not a strategic decision on the part of defense counsel it's a mere ministerial act versus a discretionary act or a tactical or strategic decision to file a notice of appeal. And if your client so instructs you, you must file it. The question is what happens if you don't? If you don't, all it really gets you is an appeal. It doesn't vacate the conviction. It doesn't vacate the plea. You just go back into court and you get to be heard on an appeal, which triggers a whole other body of law, which we call

the Anders versus California. Sometimes they call it the no merits type brief. And typically what that means is the appeal lacks merit and it's frivolous. And there is a procedural type mechanism to either get it dismissed or to go forward with a bare bones brief. But in the end, there's really nothing to litigate on appeal.

It's just a last ditch effort after buyer's remorse to try to get out of prison. So let's say Brian Coburger does go to Ann Taylor after sentencing. And this is all, of of course we're speaking hypothetically and he says you know what I want to appeal and Ann Taylor says okay but you waived your appeals and he says well I want to appeal so she just has to file the notice of appeal or how would that... Correct. Would your client instruct you to appeal under this decision now?

And I don't agree with it, frankly. I really don't. And I'm a bleeding art, Kami Pinko, former public defender. But in the end, to me, a deal is a deal. But when you look at the rationale of the decision, we can talk about that momentarily. The law requires that you file that notice of appeal and you've discharged your duties as defense counsel. It's now up to appellate counsel to sit the client down and say, you know what, I've reviewed the entire record

below. I've looked at everything and we have a knowing and voluntary intelligent waiver by you. What do you feel you need to litigate on appeal? We can go through a host of issues that maybe were beyond the scope or sort of outside the realm of the plea that nobody even considered. And you never know. Maybe there is an issue. I think we talked offline about, well, what if he decides that he didn't get a fair shake because he does have autism? You know, and that that should be properly raised on appeal.

The problem with that, we talked about about this and even if appellate counsel sat him down, is all the Atkins hearing would get him and a finding of being autistic is life without parole, which is what Ann Taylor got for him anyway. So what are we doing? Why are we litigating an appeal when in the end, everybody really got what they wanted on the defense side? So what does the law call that? A frivolous appeal. It would be frivolous. An appellate council should probably submit in the state of Idaho, they

call such, I guess, appeals of frivolity Anders briefs and it comes from Anders versus California from the 60s where when you feel your client's appeal has no merit you file a brief on their behalf you don't necessarily join in the client's will and desire to appeal but you're letting the court know that there's really no merit to the appeal. And then the court typically will review the entire record below. And if the court agrees, the appeal is dismissed. So you're telling me the only way that Brian Coburger can appeal, because he's

waived all of his appeals, and as far as Garza v. Idaho goes, it's just filing a notice of appeal and that's it? That's it. That's all this is? That's exactly all. Wait, does that go any further in filing an appeal? If let's assume a week from today, Brian calls Anne and says, Anne, I appreciate everything you've done for me, but I am instructing you to appeal my plea.

Well, based on the edict pronounced in Garza, she must file it. And if she does not, let's just pretend she digs in, doubles down and says, Brian, I'm not going to do that. I want to save face. I want to save my reputation. I have integrity. We had a deal. Well, let me tell you, the courts are going to step in and find

her ineffective. And Brian has the right to effective assistance of counsel under the 14th and 6th amendments to the Constitution. And the last thing you want on your jacket as a defense lawyer is that finding. So this is all about filing a notice of appeal. It's not moving forward with an appeal. Correct. And then what happens from there? Appellate counsel gets appointed for an indigent appellant. Appellate counsel will review the entire record to see if there's any issues that need to be briefed. If counsel feels there is no issue, they will prepare what's called an Anders brief.

Sometimes we call it a no merits brief. They send a copy to the defendant. If the defendant feels that maybe there are issues that appellate counsel missed, he or she can raise them. And then you submit it with the court. If the court finds that the appeal lacks merit, the appeal is dismissed. But let's say the court finds after reviewing everything that there is an issue. Appellate counsel will be ordered to remain on the case, cannot withdraw, and will be ordered then to

brief the issues spotted by the court. And then you go in for oral argument, and then you wait for a remittitor, and of course any decision from the higher courts. But practically speaking the only obligation defense counsel has at the trial level is to file a piece of paper called a notice of appeal on behalf of a defendant seeking the appointment of appellate counsel and the ordering of any and all transcripts for the appeal. I'm Saruti, one of the hosts of Red Handed, a multi-award winning weekly true crime podcast. And we have just taken a big old deep dive into the case everyone is talking about. Erin Paterson and the mushroom mass murders.

On the 29th of July, 2023, in the small town of Leongatha in Australia, five people sat down for lunch. Within a week, three of them would be dead, and one of them would be in a coma for two months. Was the host, Erin Patterson, the world's most unlucky cook, or a cold-blooded killer? To find out, join us over two episodes as we analyze all the gritty details, including what happened at that fateful

lunch, the aftermath, the investigation, the trial, and, of course, all the gritty details including what happened at that fateful lunch, the aftermath, the investigation, the trial, and of course all the lies. Only on Red Handed. Listen to Red Handed wherever you get your podcasts or listen early and ad-free on Amazon Music or Wondry Plus. You know there are, I've covered so many cases over the years, Phillip, where everything seemed like it was done cases over the years, Phillip, where everything seemed like it was done. And then years pass, things come up, and it's not done. And of course, after a conviction, the burden shifts to the defendant to prove their innocence, to raise these issues. It's their burden if they are going to raise issues.

Does Brian Coburger, after he's sitting in prison for a while, decide, this really stinks. What did I do? And does he somehow find somebody to say, hey, let's look for some federal relief here. Is there any avenue where he tries, even though it might be fruitless, he tries to file something and he's, this case, oh my God, I, you know, the media coverage,

everything was just against me. You know, they use the IGG, which we know has been litigated and found to be, you know, constitutional, it did not violate his rights. But what, what do you think? Because I feel like there are so many cases where it seemed like it was over and then it wasn't. The bottom line is all counsel has to do

is file a notice of appeal. It doesn't guarantee a reversal. It doesn't even guarantee litigation of all his complaints or all his points on appeal. All it guarantees is that an appellate lawyer will be appointed to look at the entire record below. That's it. And I must say, this is one of the worst times in our U.S. Supreme Court history for someone such as Brian Colberger to be taking on the high court.

And I'll tell you why. Garza was just handed down in 2019. And the majority in that opinion was Sotomayor, Roberts, Ginsburg, Breyer, Kagan, and Kavanaugh. The landscape of that court has changed since then, as we all know. The dissenters were Clarence Thomas, Gorsuch, and Alito. Well, now we have a whole new constitution, no pun intended, of our U.S. Supreme Court justices where I could see them overruling that prior precedent and saying, no, we don't agree and we think given the change in policy considerations, we're going to overrule Garza and pronounce a new rule of law in Klo Coburger versus Idaho and say that counsel does not have a duty and is not ineffective for failing to file a notice of appeal after a plea. So he has to be careful because this really could affect the appellate criminal landscape

throughout the nation, not to mention his own individual case. And I'm telling you now, given the makeup of our court, I could see them overruling Garza. So what are Brian Coburger's days in prison going to look like moving forward? Because I assume he will be in administrative segregation that's isolation for some time for his own safety. Well, the first thing that they're gonna do,

he's gonna go through intake, they're gonna classify him. they're going to do, he's going to go through intake, they're going to classify him. They're going to immediately determine whether or not he has any psychiatric or developmental needs and they're going to provide him with a team of clinicians. Sometimes they call it the Correctional Clinical Care System. In California, they call it triple CMS. And basically what it is, is just because you're locked up doesn't mean you're deprived of mental health, medical and any other needs that you might have.

In fact, under the Eighth Amendment, the Department of Corrections has an affirmative duty to take care of all those needs. The bottom line is this, every nickel he earns while in custody. I don't care if it's through the sale of a book, an interview, just rather regular prison earnings from, I don't know, sweeping the floors

or peeling potatoes in the kitchen. The victim's family can seize up to 20% of all deposits earned through their restitution order. So whatever money he gets is gonna get debited and routed to the victims and their next to kin for the economic losses sustained by them. I don't recall if he stipulated or agreed to a restitutionary amount or if they're going to hold a hearing on it and uh Hippler will decide how much money if any uh he'll be ordered to pay. But the bottom line is he's going to be on a high sodium, high carb, high fat, high cholesterol, high fructose

corn syrup diet, very unhealthy one, and he's not going to be getting chicken on the bone, if you will, and is going to be eating junk probably for the rest of his life. And as a matter of fact, you know, we used to kid around in the public defender's office and say, look, when you get life in prison, what you're really getting is what we call a culinary homicide, that it is a judicially sanctioned form of homicide where you are slowly

killed through the prison diet. That's the kind of food he's going to get. And unless and until he gets special, you know, dietary type privileges because of a way of life, for example, maybe he's kosher, or he eats halal or he's vegan, you know, dietary type privileges because of a way of life. For example, maybe he's kosher or he eats halal or he's vegan. You know, he's going to get the traditional prison junk and could die in early death because of the unhealthy sort of nutrition that they get in the prison system. In addition to all that, which is really sad, he's going to be living like an animal in the wild, always having to watch his back. Make no mistake about it, everybody in the Idaho Department of Corrections is going to

know why he's there. They're going to know that he took the lives of four innocent college students who are basically in the salad days, if you will, of life and were wiped out merely because he was a daring criminology doctoral student who felt that he could pull off the perfect crime. And you wait, there's going to be inmates in the Department of Corrections believing that they are a vessel of those four victims waiting for the right moment to try to take him out. So hopefully they will give him the security that he needs so he is not harmed, but make no mistake about it,

he will always, always have a bounty on his head in prison. He wanted to walk in the footsteps of Ted Bundy, it appears, and he may in some respects, but he will not be getting any more vegan meals, it seems. Philip Dubay, thank you so much for your time and your expertise as always. Thank you back. Take care.

Brian Coburger is now serving his four consecutive life sentences at Idaho's Maximum Security Institution. This is the booking photo that was taken shortly after he was sentenced. For the next seven to 10 days, prison staff will assess his needs. For now, he's being kept in isolation in a cell for 23 hours per day for his own safety.

That could change after a time, and it's even possible that he could be moved out of state if prison staff determine they simply can't keep him safe in an Idaho prison. And that's it for this episode of Crime Fix. I'm Antoinette Levy. Thanks so much for being with me. I'll see you back here next time.