Crime Stories with Nancy Grace - Bryan Kohberger Plots to Have Murder Charges Thrown Out

Episode Date: June 21, 2023

Murders suspect Bryan Kohberger's defense team is asking a judge to stay proceedings in the case. Attorney Anne Taylor is calling for prosecutors to disclose more materials, including the full record of the grand jury proceedings. Taylor says the information is necessary to Kohberger's defense, intended to quote, "preserve his right to contest the indictment."  While Kohberger's legal team is entitled to the transcript of the grand jury, there is a question of what other information could be handed over, such as people who were subpoenaed, or anything said off the record. This is as details are released on the probability of the DNA match from the knife sheath found at the murder scene. Court documents state that DNA collected from suspect Bryan Kohberger is a ‘statistical match’ for DNA on the sheath of the knife.  Kohberger’s attorney is asking a judge for more time to decide whether to offer a formal alibi for Kohberger in this case. Taylor said in a motion that the defense team had not had sufficient time to fully review the evidence provided by the prosecution. Thousands of pages of discovery, thousands of photographs, and hundreds of hours of recordings," have been provided to the defense. Idaho law lays out 10 days for a criminal defendant to reveal whether an alibi will be offered.  A judge can extend that deadline. Joining Nancy Grace today: Tara Malek - Bosie, ID Attorney and Co-owner of Smith + Malek; Former state and federal prosecutor; Twitter: @smith_malek Dr. Joni Johnston - Forensic Psychologist and Private Investigator (performs risk and threat assessments on violent offenders); Author: “Serial Killers: 101 Questions True Crime Fans Ask” Chris McDonough - Director at the Cold Case Foundation, Former Homicide Detective, Host of YouTube channel- "The Interview Room" Traci Brown - Body Language Expert & Author: “How to Detect Lies, Fraud and Identity Theft;" Twitter: @Tracibrown37 Dr. Michelle DuPre - Former Forensic Pathologist, Medical Examiner and Detective: Lexington County Sheriff's Department, Author: "Homicide Investigation Field Guide" & "Investigating Child Abuse Field Guide;" Forensic Consultant  Toby Wolson - Forensic Consultant Specializing in DNA; Serology and Bloodstain Pattern Analysis Dave Mack - CrimeOnline Investigative Reporter  See omnystudio.com/listener for privacy information.

This is an iHeart Podcast. Crime Stories with Nancy Grace. Will it never end with Brian Koberger? In the last hours, we learned that Brian Koberger charged in the murders of four beautiful Idaho University students, is now trying to stop the trial, claiming the grand jury indictment is somehow defective, putting the skids on this case going forward while the families all wait for justice? Not only do we learn of the maneuvering techniques of Brian Koberger and his defense team,

but now there seems to be unstoppable evidence proving Koberger was there the night of the murders. Not just there, but in the bedrooms where these victims were murdered. I'm Nancy Grace. This is Crime Stories. Thank you for being with us here at Fox Nation and Sirius XM 111. First of all, take a listen to our friends at Crime Online. Koberger's attorney wants the state to provide the full record of the grand jury proceedings. Ann Taylor says information from the proceedings are necessary to Koberger's defense. The court document states, in part,

a grand jury was impaneled at a time when the small community of Moscow, Idaho, had been exposed to six months of intense local, national, and international media coverage. Whether a fair and impartial panel of grand jurors was assembled amid intense media coverage is a significant question the defense must evaluate. Koberger's legal team is entitled to the transcript of the grand jury, but will there be more information such as people who were subpoenaed or anything set off the record? Taylor says the move is intended to, quote, preserve his right to contest the indictment, unquote. That's right. Legal maneuverings to stop this trial from going forward, just as the investigation seemingly is gaining steam. But now we hear more from our friends at KHQ. The document filed this week is called a motion

to stay proceedings. Coburger's defense says they've requested the grand jury evidence that led to this indictment, but say they have not received all of it. In other court documents, prosecutors say there's a lot of evidence, it'll take time to go through, and they are fine extending timelines for both sides to go through the information. But Coburger's defense says they want all proceedings paused until they have everything they can get on the grand jury, with ultimate goal to challenge and they hope to overturn the indictment. There is a hearing now set for this June 27th to discuss the timeline extension. So far, there hasn't been any hearing set to discuss the suspension of the indictment. So right now, we understand that Brian Koberger's defense team is trying to defeat the grand jury indictment.

With me and all-star Pound makes sense of what we know right now, but I can tell you this. Delay, delay, delay is the defense's best friend for many, many reasons. They are going to try to fight this tooth, nail, and claw every way imaginable, and they're starting with attacking the grand jury indictment. With me and All Star Pound makes sense of what we know right now. First, I want to go straight out to renowned lawyer joining me from the Coburger jurisdiction of Idaho, Tara Malik, partner at Smith and Malik, former state and federal prosecutor. Tara, thank you for being with us. I think what's lost in the sauce a lot of times is that unlike a pettit or regular 12-person

jury, a grand jury is often called a secret grand jury for a reason. That's simply a charging tool. Nothing more. You can put up one witness at a grand jury that's up for five minutes and all the grand jury has to decide is, is there a question of fact that should go to a jury? That's really all there is. Yeah, you're exactly right. I mean, this grand jury was a secret grand jury that was just looking at whether or not there was enough there to charge Brian Kerrberger for these four murders. And they have really one job to do. Now, the defense wants to, as you said, delay and slow the process down. And one way they can do that is go back to the root of what started this case in the legal process, which is that grand jury indictment. So they're going to take a look at that and start nitpicking

and saying, you know, and really looking deeply into who was a part of this grand jury, what was the process by which they got this group of people together to hear the evidence and to bring it forward and bring forward an indictment ultimately. What is it exactly that they are looking for? Tara Malik is joining us, high profile lawyer out of Idaho. And you know, by the end of the trial, it's exhausting, Tara, and I'm sure you've been through it many, many times because every single thing is challenged. And the defense has a right to do that under the Constitution. If there's an ID, if there's an eyewitness ID, that ID is challenged. If a photo array, like a photographic lineup, is showed to a witness, that's challenged.

Any statement the defendant made, that's challenged. The judge, normally they try to throw the judge off the case at least once or twice. They try to throw the prosecutor off the case. I don't believe I ever had a single murder case where the defense didn't try to throw me off the case for whatever reason. And here we see a grand jury challenge to put the skids on this case going forward. What is it they hope to find, Tara? What are they looking for? What's your best guess? You know, I think one of their main concerns in this case is Moscow, Idaho, where the murders occurred, is a very small community.

It's a close-knit community. It's, you know, in the northern part of Idaho. It's a college town. It's set, you know, a little bit further away from some of the more major cities in the state. And I think what they're looking for here is the process by which the state went about gathering people for and to sit on this grand jury. Let me just digest what you're saying. So not necessarily challenging the evidence that was put in front of the grand jury, but challenging how the grand jury was selected. It's usually 30 to 40-ish people in Atlanta, in inner city Atlanta,

the grand jury would meet. There are about 40 people in the grand jury. They were taken from voter registration records, just blindly, much the same way that juries are picked. I've been called a grand jury and regular juries. For some reason, I was always struck. I don't know why, but it can be anybody that votes in that area. In New York, in Manhattan, people were taken off the real estate tax records. If you are living there and you own a place, you're headed to jury duty. It can be a number of things. But how are they selected in Idaho? How's the grand jury typically selected? Well, the same way you're going to have a list of people that are gathered

from the voter registration that are put on just like any other kind of jury roster. How about driver's license? I forgot that one. They can also pick it from people driver's license because you have to put your address on your driver's license, tells you the county and this is lata county so maybe they pick it through driver's license what about that yes i mean yes absolutely but the issue is going to be for this defense attorney um and this defense team i should say not just attorney is fine you get these people as prospective grand jurors, but how are you reading out the people and making sure that they're fair and unbiased and impartial if you're pulling them, you know, from this very small community on a case

that has received a lot of publicity? High profile murder case. Everyone's heard about it. You know, it's likely that not only have they heard about it, but that they have some sort of connection to it. They know someone who knows someone who is in the area. I mean, it is a really a small community here. Well, and also, Tara, now I'm learning that even though we had about 40 people on a grand jury in inner city Atlanta, is it true a grand jury in Idaho is made up of 16 or so? Correct. Yes, that's correct.

So, you know, you have that issue in every trial. Do you know anybody that's one of these witnesses? And you read out the witness list. Are any of you connected to the prosecutor or the defense or any of the cops or the anybody on the case and invariably there's always going to be someone that goes oh yeah that's my second cousin when did you last see them at high school graduation you know you get things like that but that does not mean that that grand juror cannot be fair and impartial which is really the issue so right now this is just the beginning of many many attacks on the state's case and it is going to get nasty down and dirty by the time this thing

is over this is just a tiny preview of what's going to happen the attack on the grand jury indictment which means the state would have to start all over again. We're learning about this attack on the grand jury as bombshell evidence comes forward literally in the last three or four hours. Take a listen to our friends at KTVB. Court documents from the Latah County Prosecutor's Office just released say DNA from a swab of Brian Koberger's cheek is a statistical match to DNA found on a knife sheath left behind at the crime scene. That knife sheath, according to the new documents and previously known information,

was found next to the bodies of Kaley Gonsalves and Madison Mogan, who were sleeping in the same bed the night they were killed. Prosecutors say the DNA is 5.37 octillion times more likely to be Brian Koberger's than anybody else. Okay, wait just a minute. 5.37 octillion times more likely? What?

Take a listen to our friends at CrimeOnline.com. One of the bombshell pieces of evidence is the fact that Brian Koberger's DNA is a, quote, statistical match to DNA found on a knife sheath at the scene. Investigators found the K-Bar knife sheath face down and partially under both Madison's body and the comforter on the bed. A probable cause affidavit unsealed in January stated that the DNA found had been matched to Koberger's father. The elder Koberger's DNA was recovered from trash outside the family home. A short tandem repeat analysis was performed to develop a profile. That profile was compared against material from Koberger's cheek swab.

The result of the comparison is a statistical match, meaning the profile is at least 5.37 octillion times more likely to be from Koberger rather than an unrelated random person. The prosecutors have argued for sealing information related to the use of investigative genetic genealogy. Court documents state that is needed to protect from disclosure, quote, the names and personal information of the hundreds of innocent relatives on the family tree,

the names of the publicly available genetic genealogy services used, and certain other information. Three things stand out to me from what we just heard from our friends at CrimeOnline.com. Number one, the insane statistic of one out of 5.37 octillion likelihood that this is not Brian Koberger's DNA We had to actually write that out because you know, there's one zero in the number ten two zeros in 100 three zeros in 1000 there are 27 zeros hit 5.37

Octillion all right that, that insane number. Number two, the location of the knife. Did you hear what was written in the court documents? The knife sheath found partially under Maddie's body and the comforter on the bed. Many people have wondered how in the H-E-L-L did this guy leave behind the knife sheath? Not the knife, the knife sheath. Is he that much of an idiot? Because we know he's not an idiot. He's highly intelligent. Now we're learning it was partially hidden. Maddie must have turned over, must have moved. The knife sheath was left partially under her body and the comforter. And the third thing that jumps out at me, the prosecutors are arguing to seal the information of the so-called DNA family tree

to protect relatives and distant relatives of Brian Koberger. Please join us now on Fox Nation for a brand new investigation, Parallels of Evil, the Bundy and Idaho Killings. In this gripping special investigation, we bring together an incredible panel of guests who analyze disturbing similarities of evil between these horrible crimes. We speak with two female Ted Bundy survivors, Karen Pryor and Cheryl Thomas, who describe their life before and after they were victims of Ted Bundy. We also speak with the renowned private investigator Bill Warner, who worked in the cases, and Ted Bundy's defense attorney, John Henry Brown.

We travel to Moscow, Idaho, to speak with Washington State University students and interview neighbors of Brian Koberger. One neighbor shares exclusive insights about the suspect in the Idaho killings, Brian Koberger. Don't miss Parallels of Evil, the Bundy and Idaho killings, streaming now exclusively on Fox Nation. Crime Stories with Nancy Grace.

Straight out to Dr. Michelle Dupree, forensic pathologist, medical examiner and detective and author. Literally wrote the book, Homicide Investigation Field Guide. Dr. Dupree, thank you for being with us. Dr. Dupree, are you always amazed at idiots, that seeming idiots that commit these crimes to leave behind the knife sheath. And I got to tell you, when we went to Moscow and drove that route from the murder scene, this circuitous long route that could have taken him nine minutes to get back to his apartment if he had gone the normal way. But driving through all these back roads, Dr. Dupree, it was so dark, no street lights, nothing. If a semi, an 18-wheeler met me coming the other way, I practically had to stop the car at night. It was that dark. Can you imagine Dr. Dupree as he's down this long, circuitous route leaving the crime scene?

He goes, holy crap, where's the knife sheath? I love thinking about that. But he left it under the body. I love it when they're dumb. I absolutely love it when they're dumb. This is priceless. But it's not rare, Dr. Dupree. You've seen similar circumstances many, many times.

Absolutely, Nancy. They always mess up some way or another. And you're right. They're not dumb. And he's not dumb. But this was a very grave error. I mean, I wonder when it hit him. Joining me also, Chris McDonough, guys.

You know Chris McDonough, director of the Cold cold case foundation former homicide detective has investigated over 300 homicides alone and host of a youtube channel this is where i found him called the interview room chris mcdonough don't you just love i even love it when they're super smart like they're always the smartest guy in the room, and they do something so stupid. Of course, we don't use the S word at our home, stupid. But I'm going to use it for Brian Koberger, leaving the knife sheath behind. If we didn't have that knife sheath, this case would be very weak. Yeah, you know, remember the old movie line, So I Have a Chance, Nancy? It's when you take those numbers and you look at that,

that's matched that now infamous nice sheet, you have to think, okay, what's going through this guy's mind during the commission of this horrific act here. And I think we all know that he is so intent or his intensity that during the stabbing of these victims that this knife sheath becomes irrelevant to him at that moment. And then you are 100 percent right. He has an aha moment at the end of this thing, probably in that car like you're talking about, where he's got to be thinking, holy crap, where is my knife sheet? I wonder when it hit him. Yeah, exactly.

And he's probably got to be thinking, or he was probably thinking also at the time, you know, I got to go back there. Oh, yes. Maybe that's why, you know, there's indication that he did come back, you know, that morning. I know for sure. Well, I don't know this for sure, but he did come back, you know, that morning. I know for sure. Well, I don't know this for sure, but he got rid of the knife. And I wonder if he had not already planned it, Chris McDonough, because this guy plotted this out very carefully a long time in advance. Absolutely. I know that he had in his mind where he was going to get rid of the knife. And I wonder, because we passed lakes.

Jackie, didn't we talk about, oh, there's a lake out here and this is this bridge and that bridge? When we were doing that long drive that night, I mean, it was so dark, Chris, you could practically not see if it was water out there or the sky blended in with the ground. It was just pitch black but I guarantee you he had a certain place that he was going to get rid of that knife whether he threw it into a body of water or buried it or what I wonder if when he got to that location to throw the knife into the water or wherever he you know disposed of it that's when he realized he didn't have the sheath can you just even imagine

that yeah and then then think through that right even further nancy where if he does now have that thought process he it must have been one of these moments for him to where he is so methodical that he realized this was the biggest mistake that could ever be made, which destroyed his future in relationship to doing other crimes like this. Oh, gosh, that's a good point. So joining me right now, not only do we have a renowned DNA expert, Toby Wilson, we also have a forensic psychologist who performs risk assessments on violent offenders and is the author of serial killers 101 questions true crime fans asked it's dr. Joni Johnston dr. Joni thank you for being with us I mean can you imagine at that moment when he realized he had left that knife sheath

behind? I cannot imagine what it was like to, you know, to experience that. And also, this is somebody who's obviously in a doctoral program of criminal justice. He knows what that means. He understands DNA. He knows what that means. And so this is somebody who isn't just like, oh, crap, you know, this happened. And so, you know, they're going to know that somebody used a knife sheath. Maybe they'll identify the knife. This is somebody who's like, my killing career is over. That dawning, that moment.

How does that factor into your analysis of serial killers? Well, I think, you know, serial killers obviously start out as single killers, and I think that they have this long fantasy life where they're thinking about, which turns into plotting and planning a murder. And I think oftentimes when that ball gets rolling, they're not just thinking about this murder, they're thinking about future murders, and they're thinking about, okay, how can I improve on this murder? What's going to make it more interesting and more exciting? And so oftentimes there is this sense that I'm the smartest person in the room, I can figure this out. And when you have somebody like Brian Kober, who from what we hear is, you know, doesn't think he's the smartest person in the room, this really does, you know, raise some questions about how smart he really is, or at least how savvy he really is. And it lets us know that it would surprise me for that reason that if he has

committed other murders, just because he made so many mistakes. You know, I'm wondering if it's possible, Chris McDonough, and this is one of Jackie's theories. Did he realize he had left the knife sheath before he left the home, but felt there wasn't time to go back and get it or search for it. You know, that certainly is a possibility, Nancy. But one of the things I think we know about him is that intensity in relationship to how he prepared. And as the doc just said about his fantasy here, this fantasy was, you know, now first in his mind. And, you know, doc can go for days on that, but then it becomes reality.

He's there, and this event is taking place. He's into the intensity of committing this crime. In a frenzy. In a frenzy. Yeah, and so we have to ask ourselves then, does he have this knife in the sheet, and he's wearing these gloves? Do the gloves come off, and does it become personal? And where even further, where he pulls the knife out of the sheet and during the frenzy, the sheet drops? Or is it something that he's trying to stage the knife sheet?

Now, hey, hey, that brought me to another thought, Chris. I'm glad you said that. Dr. Joni Johnson, forensic psychologist and author of Serial Killers, 101 Questions True Crime Fans Asked. Dr. Joni, a lot of people have speculated he meant to leave the sheath. That is total BS. No, he did not mean to leave any evidence behind. Absolutely not. I think there is such a myth that people want to get caught when they're committing these kind of murders. They may make dumb mistakes and they're so looks like they want to get caught.

But I do not believe for one minute that this was was planted. I don't think it was planned to leave it either. But I wouldn't be surprised if he was so confident or narcissistic that he probably thought he could talk his way out of it, if it was ever even traced back to him. Okay, Jackie here in the studio is giving me a true life example, and it is true. How many times have you lost the remote? I always lose my cell phone. In the covers or under the comforter or the bedspread,

and you're digging around to try to find it. He probably didn't see it. It was dark in that room. It was partially under Maddie's body and partially under the comforter. That said, I want to talk about deoxyribonucleic acid DNA. Joining me, Toby Wilson, forensic consultant specializing in DNA, serology, bloodstain. And you can find Toby at NoSlowForensic.com. Toby, thank you for being with us. Can you analyze this number? It's an amazing number, 5.37 octillion. And I have always had a hard time putting that in regular people talk to a jury. And I would try to say it something like this, that the chance of this not being Brian Koberger's DNA on the murder weapon sheath is one out of 5.37 octillion. And I would absolutely go up to a whiteboard and write out every single zero, all 27 of them by the time that witness was off the stand break it down for me toby well it's a it's an extremely big number when you especially when you consider okay now wait a minute toby

wait a minute you're the scientific brains here and i'm expecting a little more than yeah that's a big number so i was just going to explain about it versus the population of the world. We're talking about 8 billion people in the world. And over time, there's never been more than maybe 13, 14 billion, I would hazard to say. 8 billion into this number goes in several thousand times minimum. It's that large a number. So it's an extremely probative number. Prosecutors tend to present it the way you just did,

that the chances of it being somebody other than him are non-existent. The reality is that we basically presented it as here's the probabilities of seeing this profile a second time okay wait wait wait wait wait wait wait wait could you say that very slowly for me we're drinking on the fire hydrant with you toby it's too much too fast say that very slowly how a scientist would say it on the stand what would you say well basically i would say that on the stand. What would you say? Well, basically, I would say that the DNA profile obtained from Brian Kohlberger matches the DNA profile obtained from the knife sheep

and that the possibility of this being from him versus a random unrelated man in the population is 5.37 octillion times more likely. Okay, so yeah, that's like pea soup to me. I heard you, but it's not plain. It is an extremely confusing explanation for any lay person. Okay, is it correct, Toby, is it correct to say the chance of that DNA on the murder scene, on the knife sheath, being anybody other than Brian Koberger is one in 5.37 octillion?

Is that correct? It's one way of looking at it, yes. Okay, all right. I'm glad I did not mislead all those juries. Okay. Cause that's what I said. It's basically saying that it's him, but we don't in forensic biology ever say that it's absolutely them because we know statistically there's always that chance. And granted, it's a ridiculous thought in something with a number like this that there's another person out there that matches so we always take a conservative approach to explaining it but the

end result is the jury's going to understand his profile regardless of the numbers or not his profile is a match to evidence obtained from the scene. These are CODIS core loci, which means that there are a minimum of 20 required loci to go into CODIS. What are you saying, man? What? What's a loci? Okay, loci are the addresses on each fragment of DNA that we... See, okay, that's where I would have to stop you on the stand right there. Of course, we would go through this many, many, many times before I put you on the stand to make sure you didn't come out with that.

Because that's so far beyond most regular people like myself comprehension. Could you dummy down for me? What are you saying about 27 loci? Okay, there's 27 fragments of dna that you know 20 plus that we look at and at each loci you either have one fragment or two fragments and that we compare those across with the same analysis to the evidence and to the standards and either they match or they don't match can i just say it's match yeah am i okay okay good now jackie you just had a great point earlier uh toby wilson forensic consultant specializing in dna can i see it again you were talking about the population of the world. Octillion is many, many times larger than the current world

population. So this number, 5.27 octillion, rules out anybody else in the world. That's more people than are in the world, Toby. Yes, that's more people than have ever lived. That's even better. So as I would with a jury, would not get so deep into it that nobody even understands what we're talking about anymore. And I actually think that that was, anybody can jump in with this, please, was one of the problems that happened with the Top Mom Casey Anthony prosecution. Dealing with the air in Top Mom's trunk. Do you remember that? The air samples in her trunk actually revealed that a dead body had been in there.

Like, let's just say if you cook, what's something that smells really good, Jackie? Okay, just say chili. If you're cooking chili and then you go over the pot of chili and you grab the air, in that air, there are going to be particles of what you're cooking. That's an air sample, right? They've taken them for years and years and years in our country to test the air quality under the Clean Air Act. That's what that is. But it got so confusing trying to explain it in scientific terms that nobody understood.

It got lost in the sauce. And I don't want that to happen with this DNA of Brian Koberger's. It really shouldn't get lost, Nancy, because when we testify, we never, the prosecutors don't normally walk you through the entire process and the discussion of what we're doing and how we're doing it anymore, because people become so comfortable and familiar with DNA analysis through all these ancestry kits and through television and all that basically you get on the witness stand and you say, well, I analyzed the following samples to get it to obtain a DNA profile.

Profile was obtained and it matched the DNA profile obtained from such and such. And here's the number that's associated with that. Oh, man, I would have a field day with that number. How many times could I say the likelihood that the DNA on that knife sheath is anybody in the world but Brian Koberger is one in 5.27 octillion. And I point out every one of those 27 zeros. Well, something else is happening in addition to the defense trying to put the skids on the entire trial by challenging the grand jury's indictment, claiming that somehow there were people that were out to get Brian Koberger on the grand jury, and the fact that

we get this incredible, almost unfathomable DNA match. Now we're finding out that Brian Koberger is set to announce he had an alibi at the time of the murders. What, he was spying on his female colleague with her Wi-Fi security cam at the time? Guys, take a listen to our cut 491, our friends at Crime Online. Brian Koberger's attorney is asking a judge for more time to decide whether to offer a formal alibi for Koberger in this case. Ann Taylor, Koberger's public defender, said in a motion that the defense team had not had sufficient time to fully review evidence provided by the prosecution. Thousands of pages of discovery, thousands of photographs, and hundreds of hours of recordings have been provided to the defense.

Idaho law lays out 10 days for a criminal defendant to reveal whether an alibi will be offered, showing the defendant was not at the offense scene when a crime took place. A judge can extend that deadline. An alibi. I always think it's dangerous to lock yourself into an alibi prior to trial. That gives the state plenty of time to go question your alibi witnesses to make sure they're lying. Crime Stories with Nancy Grace Joining me right now is a well-known body language expert, the author of How to Detect Lies, Fraud, and Identity Theft. You can find Tracy Brown at BodyLanguagerainer.com. Tracy Brown, thank you so much for being with us. If he brings up this alibi, he will have to come into court to talk about it, or his defense lawyers will. And now we see a huge shift in how he is appearing in court. Did you see him in the past days coming into court

now wearing a designer suit and tie, looking straight out of the pages of GQ? Did you see that, Tracy? I saw that. What a different guy walked into court. And the perception that the public has of you just based on what you're wearing is amazing. There's so many studies on how we're perceived that way.

But yeah, to not show up in the orange jumpsuit, wow. He was thinking about how he's going to present himself. Now, he didn't say a word during the proceedings, but to the untrained eye, it didn't look like much happened at all. But I started looking at, okay, how stressed is this guy really, even though he's looking really great? And I started looking at his blink rate, the best I could tell, because there weren't too many close-ups on him, but I counted. And his blink rate was at 24, which also matched the judge's blink rate. Now, our normal blink rate is between 12 and about 18 per minute. And so more blinks mean more stress, right? Because here's the thing.

We never become aware of our blink rate. And so it's a very reliable, like you can't think your way out of it. Right. It's a very reliable indicator of stress. The judge said he was very, very low, just slightly elevated, which makes it kind of interesting. Now, here's the other thing that he did that we've seen from him before when he was in court in the orange jumpsuit. People always ask me, what's with his jaw? He keeps clenching his jaw muscle, and it's very intrusive. You can see it. That says hidden aggression. So he's trying to tamp down anger and aggression in there, and it's almost to the point that it's an adapter or a pacifier,

like almost that he's trying to let off some stress in there, but he's barely stressed at all. So this is how we see it come out. So pretty interesting. Then here's what he did. He did this three times. He, to his team of attorneys, whoever was around him, he'd look at him and do a really quick fake smile. And we knew it was fake for a couple reasons one is that the smile just stops

and it doesn't it doesn't fade out right so you got two ways the smile can end one is that you stop it meaning you're thinking about it and the other is that it fades meaning like the half-life of the chemicals that created that genuine happiness, slowly fade out, three to five seconds. So they call this a Pan Am smile. And we see it when someone has put themselves subservient to someone else, just like a stewardess would back in the 60s, like a Pan Am smile when they're serving you a drink. So we saw him trying to put on a good face,

yet all these signs of stress and anger are leaking out there so he's not as calm and cool as what he's trying to put on in that gq suit look but not definitely to the level that we'd see someone who's actually concerned about their future you know the look that he sported in court was very different. Many outlets refer to it as a smirk in the courtroom. With me, high-profile lawyer out of the Coburger jurisdiction of Idaho, Tara Malik. Tara, it brings to mind, for instance, the Menendez brothers, how the defense lawyer had them dressed up like preppy college students in court,

which is hardly what they look like the night that they murdered their mother and father. Or top mom Casey Anthony, how she would look so demure in court. And then in my mind, I don't know that the jury saw this, the photos of her in a mini dress and a push-up bra on a stripper pole a few weeks before while her daughter, Kelly Anthony, was quote missing, i.e. murdered. What we're seeing in court now is very, very different than the figure that was described by the surviving roommate, Dylan Mortensen, a guy, menacing demeanor, all dressed in black with the bushy eyebrows there at the murder scene the night of the murders. Very different appearance. What's happening, Tara?

Yeah, I mean, I think part of the defense's job here is going to be rehabbing his image. You know, we're all very familiar with him in the orange jumpsuit, kind of a cold stare forward, not showing a lot of emotion. So, you know, Nancy, you know, when you're presenting a case to jurors in front of a jury, they're going to be watching his every move from the minute he walks in that door of the courtroom. The minute he walks out, every what, you know, how he's been portrayed so far in the media and what we're used to seeing. You know, they're going to clean him up. They're going to make him look, you know, like a straight-laced, you know, law-abiding citizen, someone who is a student, PhD student, you know, and try and distance away from this image of him as, you know, this incarcerated alleged murderer instead. So putting him in a

suit is part of that process. It's showing him in a different light. Now, you know, does it work? Not really. I don't think so. But especially in a case like this with so much publicity, But, you know, they've got to make those efforts as well. That is part of their job. Dave Mack with us, CrimeOnline.com investigative reporter. Dave, a hearing has been set down for the 27th. Is that for the challenge on the grand jury indictment or is that related to them putting forth an alibi and also we're still waiting for the prosecution to announce whether they're going to seek the death penalty actually nancy the hearing that's coming up is going to deal with several of the things you just mentioned uh the judge has yet to rule and said he will rule in the future on what he's going to grant in terms of the grand jury you know the argument has been that

defense is claiming that they haven't gotten everything they were supposed to have gotten from the prosecution they need that so they can craft an alibi and without all that documentation they are not going to come up with one oh i love what you just said they're going to try to craft an alibi create an alibiibi. Yeah, you know what? You're so right about that. So we're going to be back in court on the 27th. Is that right, Dave Mack? That's exactly right.

We wait. I think the alibi you're going to see in this case now is going to be kind of like in the OJ case, that the evidence was planted and that he wasn't there unless they find more DNA either on him that connects him to the crime scene or him at the crime scene other than this knife sheath. The argument is going to be for the defense that the real killer had his knife and left it there and they're going to it's going to be just like the gloves in the OJ case that they were planted to make him look guilty. And there's going to be all sorts of challenges on the DNA because it was wrapped underneath one victim's body and the comforter. And somehow they may try to use that comforter as a transfer of the DNA.

How they're going to do that, I don't know. But they're going to try it all. As I told you earlier, this case will be contested and fought tooth, nail, and claw. We wait as justice unfolds with one eye on the courtroom. Goodbye, friend. This is an iHeart Podcast.