Crime Stories with Nancy Grace - Accused Killer Brian Kohberger Back in Court, After Waiving Speedy Trial

Episode Date: August 30, 2023

Nancy Grace sits down with high-profile defense attorney, Dale Carson, and former homicide detective, Chris McDonough, to discuss Bryan Kohberger's defense strategy. The 28-year-old graduate student claims he has an alibi for the night of the killings and that the DNA tying him to the crime scene "was planted." With three other samples of unidentified male DNA discovered in the King Road home, Kohberger's lawyers may rely heavily on a "Some Other Dude" defense. Join us to hear Carson and McDonough's thoughts. See omnystudio.com/listener for privacy information.

This is an iHeart Podcast. Crime Stories with Nancy Grace. Brian Koberger heading back to court in about 48 hours. What will happen when he once again is face-to-face with a judge? Will victims' families show up? Many important details leading up to this moment. We now know that Koberger's lawyer, Ann Taylor, has waived her right to a speedy trial. After all this, all this whining and moaning and complaining about a speedy trial demand, and now they waive it? It was all just a game. It was all just a ruse. This is a contested DNA, and they are questioning three unknown male DNAs found at the scene of this home

where multiple coeds had lived. People were in and out all the time. It was a real party house. That could have been anybody. So I'm trying to figure out which way the defense is headed, because I guarantee you they're going to claim that they had to waive their right to a speedy trial because they didn't have enough time to review the state's DNA evidence. B.S.

That's total B.S. The state has said, and this can be confirmed, that the crime lab hasn't finished all the DNA analysis. So how can they turn over what they don't have? I'm Nancy Grace. Thanks for being with us. Joining me right now, two special guests that are intimately familiar with the legal aspects and the factual aspects of the Koberger prosecution.

Dale Carson is joining me, high-profile lawyer out of Jacksonville, former FBI agent, former cop in Miami-Dade, author of Arrest Proof Yourself. You can find him at dalecarsonlaw.com. He's been studying the legal angles since this first broke. And I mean when the murders occurred.

He's been on the case. Also with me, Chris McDonough. You know him well. He is the director of the Cold Case Foundation, former homicide detective with around 300 homicides under his belt. 25 years in law enforcement, I found him on the YouTube channel, The Interview Room, when he was doing a very slow drive-through all around the King Road murder scene. That's when I found Chris McDonough. Dill Carson, Chris McDonough, thank you for being with us. First of all, Dill Carson, how many times have defense attorneys filed, including you, filed speedy trial demands when you, no more than the man of the moon, intend to take the case to trial within six months? Total BS.

Well, it absolutely is. But the reason, ostensibly, is that the defense hasn't had an opportunity to fully prepare for the case as the prosecution already has the prosecution has all the evidence right but it's interesting i hate to interrupt you in the first two minutes but no the state has handed over all the evidence it's not like they're hoarding it or hiding it agreed let me tell you a story. I almost said a funny story, but it wasn't funny to me, Dale. And Chris, you know only too well from being on the stand. I was preparing a death penalty case where infants, several infants in their baby beds were killed because of a rival. It was called set, S-E-T, set gang. All right.

What this means is that the women that were the girlfriends of the gang members got into an argument with the women that were girlfriends of the other gang members. I seem to recall over some clothes. Yeah. So one gang throws a Molotov cocktail into the home of the victims. Wow. And says, let's fry them babies. And they did.

The babies were burned to death instantly. Yeah. Now, that's not a death penalty case. I don't know what it is. But my point is, leading up to it, is that the defense kept saying, and the trial, there was no speedy trial demand. The trial was long, long down the road. I'm talking at least another year. They said I did not hand over a file. And I said, I've given you every single thing I've got. So I finally handed my whole file,

everything I had to the judge. Guess what it was? They were right, and I was right. There was one thin file that the homicide cops, for whatever reason, inadvertently, I don't know, had not given to me. So there was a stack of, I think, about 20 pages the defense didn't have, and I didn't have. So I remember taking the stand and saying, I've handed over everything I've got. It went that far. I actually had to take the stand. And then we found out where the missing pages were. And that was a real blow to me to be accused of withholding information.

I want to win, but I want to win fair and square. I want the right people behind bars, and I want to win the fair way, because to me, prosecutors have the duty not only to seek justice, but to do it ethically. The

defense is not bound by that. So, when you say, well, the state's got it. They've had it all this time. I don't know that they've had it all this time. There's still DNA results the state doesn't have. Well, they collected it, and it's an opportunity for the defense to view it. You mean the cops collected it and handed in the evidence.

The prosecutors did not collect any evidence. Well, no, not directly. Not directly. Not correctly. What I was going to tell you is that, look, in a case like this where the defense has not entered a plea, the court has not entered a plea for the defense. And what that means is there's no reciprocity. The government has to turn over everything it's got, but the defendant does not. So that's an interesting nuance to what's going on here. Well, let's talk about that for just one moment. And Chris McDonough, you got to hear this,

because one thing the defense does have to hand over is notice of alibi, because in our jurisprudence system, which was brought over from the common law of Great Britain, it's not trial by ambush. Forever, the state has to hand over the evidence to the defense. Not always true the other way around. The defense doesn't always have to hand over everything to the state. But if there's an alibi, the defense does have to hand that over. So the state has a right to investigate it to find out if it's a big fat lie. So get this, Chris McDonough. Brian Koberger's defense hands over an alibi, but they won't say what the alibi is. All they say is he likes to go driving around late at night alone. If that's

not pervy enough, what, looking in everybody's windows? How many times did he drive by the King Road murder scene that night, according to his cell phone, or in the past, according to his cell phone? Conveniently, that night, I think he had a cell phone on airplane mode or turned off at the time of the murders. But then it was quickly turned back on for his circuitous route home. What kind of an alibi is that, Chris McDonough, speaking of having to hand over evidence that you like to drive around late at night by yourself? Well, Nancy, you've been on this from day one in terms of really inside this guy's head and then the defense's positioning here. That alibi in of itself is going to be very problematic for them because I think if we

just apply common sense, the fact that he now presents this alibi of, well, you know, he's just out for a nightly stroll in his car. You know, of course, we all do that. Right. At three o'clock in the morning. And he just happened to be driving by that house 12 separate times. I tell you what, if my husband, David Lynch, got up out of the bed and went for a drive by himself at 3 a.m., I think my head would blow off. I agree.

Because if I got to get up at 5 o'clock in the morning and start feeding guinea pigs and cats and dogs and grandmommies and twins and get everybody to school. Uh-uh. N-O. He is not going for a drive at 3 a.m. and breathing in the fresh air. Uh, no. No. Go ahead. Yeah, no. I mean, do you go driving in the middle of the night, Chris McDonough?

Because I'm sure your wife would like to hear about that. Do you? Yeah. My wife would kill me. Literally. I would be on the opposite side. What about it, Carson? You go driving around at 3 a.m. in the morning?

What, to get some nice, freezing, fresh air? Well, that's an estranged alibi because it's not really an alibi. All he's saying is, I don't really know where I was, which is not an alibi. Yeah, you're right. An alibi is, I was here at this time, and these are the witnesses. So it's totally yes. Crime Stories with Nancy Grace. Chris McDonough, you and I have gone to the scene many, many times. It's freezing cold. The roads are treacherous.

Their home was up on an elevated slant and very tricky. You know, the streets leading up to their home, the apartments, all the student apartments. It's barely two cars can cross, and they're going up these slick streets covered in ice. So why is he driving around in sub-zero temps at 3 o'clock in the morning on a treacherous road? But he can't hire a attorney, right? So he's got no money. Where's he got the money for gas yeah and to dovetail into what you're thinking nancy the only thing i can think and this is you know obviously just my opinion is either a they're going to come up with some type of medical

insomnia you know connection through that's also a snow problem hold on i gotta write this down hold on i can see it coming that okay okay now what did you say insomnia and what you know and they're going to connect it back to his condition uh you know is the snow um you know problem that he was having you know a medical condition there and and of, that opens up the timeline for the earlier videos that have been floating around, you know, about an hour before what the authorities have said they believe is the exact time the homicides go down. Wait, wait, wait, wait.

You know, hold on. Chris McDonough, I know you've got 300 homicides under your belt, and you're the star of the interview room. And Dale Carson, I know you're a former FBI, and you've written a book, and you're a high-profile lawyer, blah, blah, blah. But Jackie is waving, and Sidney are waving a sign, visual snow. There it is. The condition, visual snow. So he's out driving. Guys, I feel a little bit guilty because I've recounted the story.

Uh-oh, they're going to sleep in here because they know what I'm about to say. Oh, here she goes again. But when I drove that route, I swear, and you can ask. I think I had Kelly with me. Ellie, I don't know if you were with me or not. The night we drove that route that he took in the, oh, you couldn't see a thing. When a semi would come toward me, I would have to just pull off the road because I could not see anything. I've got 2020 and 2018 and it was so dark. All I could

see were big lights coming straight at the car. So I just pull off and wait. And I'm usually a much more aggressive driver. That said, Chris, did I interrupt you or did I interrupt Dale Carson? It's their fault. No, you're fine, Nancy. And, you know, we're always honored to be here as your guest. And you are so right on target here. One of the things I've been thinking about, you know,

knowing that both you and I have driven it and this idea of, okay, why are they going so far to say in the motion that, well, we'll figure out this alibi on the state's witnesses through questioning, right? I'm thinking, well, how does that come to play here and the only thing i can think of is this medical condition but i could be 100 wrong however that oh wait wait are you talking about insomnia because what the perfect cure for insomnia you can't go to sleep is to go out in the sub-zero cold temps with your windows down and and the snow that's supposed to get you sleepy exactly yeah that's kind of where i i i'm going in my head but but that in of itself if you take that night for an example of all the activity you know just hours before this tragedy goes down there are kids

everywhere from the college i mean we know about the police contact with the alcohol and that. And then there's these videos that have surfaced where they're showing the cars, you know, various cars pulling up and some people believing that's them. The authorities haven't released that yet. But what that does is it opens up a narrative. And you know this more than anybody, for the defense to start saying some other dude. Some other guy. The sod defense. Some other dude did it. Ugh.

Yep. And then they create their theme around it. And they start projecting it into the public through these motions and see what sticks. I think that's what's been going on here. And you've been on top of this, you know, from the beginning. We've talked about this multiple times. You know, Dale Carson, Chris McDonough and I are dragging you by your toenails. You can bring your wife.

Just bring everybody, the cat, the dog, everybody. You've got to go out there and you've got to wait like we did around midnight and take that route that he took about a four minutes Sid wasn't a 45 minute route from the murder scene to his apartment and it's actually about a 9 to 12 minute drive he was out on this long circuitous route getting himself as far away from the murder scene as possible home it was like his house his apartment in Pullman is here the murder scene is here so he goes all the way around in the dark no street lights to right here instead of going boop that's that's what happened now right there a jury is going to say, no way. That's exactly right.

That's exactly right, Nancy. A jury is going to begin with this case, with him surveilling in some way or another that house where these young gals lived. And then they're going to bring it right up to the very end where that sheath for the knife is found with his DNA on it, and a reasonable jury is going to find him guilty, clearly. They want to postpone this trial as long as they can in order for the hubbub, if you will, to die down, which it's not gonna because this is such a massive killing in a rural area. There are 44 counties in Idaho. They don't even have a public defender's office per se. What they do is they engage the services of attorneys who are in the areas because it's so rural and there are different rules for every one of those counties.

So they don't have to have depositions. when you would be a witness on the stand as a homicide detective. But I don't care if it was a shoplifting. I don't care if it was a theft by receiving. If somebody hit me with a speedy, they're going out first. I mean Monday morning as quickly as I can put that case together. And then when I do get a conviction, I'm lucky enough to get a conviction, then they're getting the max because but speedy trial issue at least from the public the defense side is this you set it for speedy trial when you know the state has to change its behavior in order to give you a reduced sentence that was never

going to happen in this case and so when when you request speedy, the government knows that you think your client is provably innocent. And that's never been the case here. So, you know, it was a tool. It's just a way to screw with the state. Yeah. They never intended this. And the outcome is if the state didn't try it on time, there would be an automatic acquittal and there is no retrial. There that Jeopardy attaches.

Yeah, but if if the jury panel's not sworn in, Jeopardy doesn't attach. Guys, I was just handed this. It's highly complicated and it's very tech oriented. It's perfect. Sidney drew this. Okay, 10 minutes. I love holding up any type of a visual. Apartment to house, as I mentioned earlier.

I thought it was 9. It's 10 minutes from the apartment to the house. But the route he took that night is from the house 20 minutes this way, 20 minutes that way, and 20 minutes. It wasn't 45 sitting you're right it was more like an hour he goes for an hour drive and how is he going to explain that to a jury i mean that just starts with now okay let's talk about what's going to happen to court and again chris mcdonough dale please jump in. Hey, Nancy, can we talk, just go back just for a second on the drive?

Yes. Didn't he show up that morning as well? Yes. Wasn't there evidence that they believed he potentially went back and there was reports of his vehicle in the area that morning. That's right. He went back and it reminds me of Scott Peterson going back after he murdered Lacey, his wife and unborn child Connor. They go back and look out over the San Francisco Bay and just look at it because there was a GPS tracker on his car. So we know he went back over and over to look out there. What was he looking to see if her body was going to pop up? But that's really common amongst defendants

is they go back to the scene to just see what's going on. They want to relive it. Didn't mean that part of their conduct. Typically. Right. So how is this going to play into the... Bundy did that.

All of the major serial killers have done that. And although we don't know that he is a serial in the sense of having clearly killed other people previously, we do know that with a quad murder, he certainly is a serial killer. And he has all of the, well, think about it. He is so into law enforcement that he tries to be a police officer. He tries to be a really well-known, if you will, graduate student in criminal justice. I mean, what other indications are there that somebody's just involved terribly in law enforcement, yet he can't get into it? Thank God. thank God Crime Stories with Nancy Grace There hasn't been a lot of discussion about this at all

because everyone is focused on the challenge to the DNA on the knife sheath. One thing I want to point out, and I think you and I, the three of us have talked about this, maybe off camera, they've got to have a way to fight that DNA. It's his DNA on the knife sheath that he left under the body of Maddie Mogan. His DNA, we believe, is on the buckle, the snap of that knife sheath. Now, they've got to come up with a way. They're either going to say the DNA science is flawed, that his DNA was there incidentally or accidentally. Maybe he went to a gun and knife show and opened up that

knife and left his DNA. Or he can claim it was planted. But think about it. The knife sheath was collected from under Maddie's body before Brian Koberger became a suspect. What I mean by that is significance. The knife sheath was taken and handed over to the crime lab, to the scientists, to try to find DNA or fingerprints. And it was only weeks and weeks later that Brian Koberger was identified. So how could they have planted the DNA? And it's very likely that some of the cops in there processing the scene had on a shoulder camera, a body cam.

So there may even be video of when the knife sheath was found. So just follow this through to its logical conclusion. That means that someone would have to, Koeberger is named as a suspect get his DNA not his father's DNA but his DNA and go to the crime lab get in to where they're holding all the evidence probably get someone to conspire with them and plant his dna coberger's dna on the knife sheet nancy that narrative is why you were a good prosecutor because that's exactly what's gonna tell the jury i mean yeah people love to hear about, oh, the evidence was planted. But think about what it would have required to plant his, Koberger's DNA on that snap, on that sheet. That did not happen.

Okay, so they got to fall back on the other three attacks on the DNA. But Jackie was holding up a sign, and I agree. Because we're all focusing on the DNA and the unknown male DNA that was found somewhere in the house. I don't know. Was it in the kitchen? Was it on a doorknob? Was it in a bathroom? Where was it?

Don't know. But they haven't been able to match that other DNA to a single person. And we don't know of any male DNA that was in the girls' bedrooms. That said, no one's been talking about the fact that Koberger is fighting tooth and nail to keep cameras out of the courtroom. To you, Chris McDonough, why do you think Koberger doesn't want a camera in the courtroom? Well, I think for him, it's quite frankly, I think it's more about his attorneys than it is for him. I think he probably wants them in there, but the attorneys don't want them in there because they know that the public will see what he is about through his body language, not only how he reacts, you know, I mean, you, you know, I can only imagine when you would ask questions to a witness to watch the defendant's reaction, you know, juries pay attention to that very

closely, as we all know. And, you know, just to jump real fast back to the DNA gap, i.e., you know, somebody planted it, i.e., law enforcement and or the government. But it also, if we were to try to think through this a little bit deeper with some other dude theory, then they would have to find somebody that had a direct correlated link to Koberger, somehow put that sheet in his hand during that time of that relationship. And then, of course, that individual would be the suspect who planted it up into that bedroom. And what's interesting here is the fact that it's in the bedroom. That is a very personal um approach and coberger would be the most logical uh individual through his personality type and through obviously all of the forensic diagnosis of this guy

psychological yeah go ahead remember following on that remember they were killed with a knife a cheap knife probably yeah well and that's a very personal instrument right del yeah I remember following on that. Remember, they were killed with a knife, a sheathed knife, probably. Yeah, well, and that's a very personal instrument, right, Del? Guys, again, Sidney and Jackie are waving frantically at me, and they're right again. There is Coburgers, and the state has this, purchase of a knife and a sheath. Yep. Exactly like the one, the sheath that was found that goes with the knife, seven months before the murders.

He buys a knife and a sheath, and it looks just like the sheath found there with the matching knife. The knife has never been recovered. So my question would be, so where's that knife and that knife sheath? If this isn't it, then where is it? Exactly. And that's a very high bar that they're going to have to try to get over. Just that piece alone.

Hey, listen to this, guys. The defense says, I bet they don't. They do not like cameras exclusively looking at their client. And I just want to remind everybody of something. And we went round and round about this when I took a job at Court TV with the late, great Johnny Cochran. God rest his soul. I didn't agree with a thing he ever said, but man, he could win a case.

Juries love him. And I can see why. Just, you know, that kind of person, they walk in the room and everybody wants to be with them. He's just, you know, charismatic. Always, with every case, the defense did not want cameras in the courtroom. Well, the majority of the cases. Why? And why did Court TV think there should be cameras in the courtroom? In our Constitution, the Founding Fathers, there's something called the minutes. The minutes are what's being said, say, on the floor, in the room, when statutes are being passed.

And our Constitution calls for open courtrooms. And in the minutes, the founding fathers said, we want the courthouses to be as big as it takes for the whole community to watch a trial. We are not Russia. We are not China where proceedings happen in secret. We're not being run by the Taliban, who are jury, judge, and executioner. Our proceedings are in the open.

And in our world, that means we all see justice unfold. Here, where Dale Carson is, where Chris McDonough is, we can watch justice unfold. That's what the founding

fathers said. And if the defense doesn't like it, well, they shouldn't have done the crime. Well, listen, when you look at Brian Koberger's photographs lately, he's been smiling. Now, what person charged with a quadruple homicide would be smiling in any event during the course of any court appearance? You'd be absolutely mortified, but not Brian Koberger. Why is that? And that's a question for the psychologist. But I suspect it's because he's enjoying himself.

Yeah, and I asked the psychologist that same question, Dale, and his answer was because he's the punisher. Yeah, all right. Fair enough. Guys, we have our eyes on the courtroom as these proceedings go forward. And we pray for justice. Dale Carson, high-profile lawyer, joining me out of Jacksonville, former FBI, former cop, Chris McDonough, former homicide detective, director of Cold Case Foundation,

star of YouTube's The Interview Room. You know, we're laughing at certain points, but I can tell you some people that aren't laughing. The families of Ethan Chapin, Xanah Cronodal, Madison Mogan, a.k.a. Maddiedie and Kelly Gonsalves, because they will never be at home for another Christmas, another party, another birthday, another Mother's Day. It's all over. They are never to be seen on this earth again, and their killer must be brought to justice. Goodbye, friend. This is an iHeart Podcast.