Crime Stories with Nancy Grace - Genetic Genealogy Links Kohberger to Murders: Should Genealogy Details be Released?

Episode Date: June 25, 2023

One of the bombshell pieces of evidence in the Bryan Kohberger murder case is the fact that Kohberger's DNA is a "statistical match" to DNA found on a knife sheath at the scene. Investigators found the Ka-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 Kohberger’s father.  The elder Kohberger's DNA was recovered from trash outside the family home.   A short tandem repeat (STR) analysis was performed to develop a profile.  That profile was compared against material from  Kohberger’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 Kohberger 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 "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." Hear the arguments made by both legal teams. See omnystudio.com/listener for privacy information.

This is an iHeart Podcast. Crime Stories with Nancy Grace. A lot happening in the Brian Koberger case. Motions being filed left and right. The judge weighing them very carefully, and usually not only ruling, but ruling along with a written memoranda. We have the motions at CrimeStoriesAndCrimeOnline.com. Let's hear key motions and rulings critical to the prosecution of quadruple murder suspect Brian Koberger. In the District Court of the Second Judicial District of the State of Idaho and and for the

County of Latah, State of Idaho Plaintiff versus Brian C. Koberger Defendant, Case Number CR29-22-2805, Motion for Protective Order. Comes now the state of Idaho by and through the Latah County Prosecuting Attorney and respectfully moves the court for a protective order pursuant to ICR 16-1 for information related to investigative genetic genealogy. This case arises from a quadruple homicide. Law enforcement found the DNA of a potential suspect at the crime scene and the FBI submitted the DNA to one or more publicly available genetic genealogy services

to determine potential relatives of the suspect. The FBI then used common genealogical techniques to develop a family tree leading to defendant. The state seeks to protect from disclosure 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, page 2, other information described below. The disclosure of this information is not required by Rule 16 of the Idaho Criminal Rules and should be protected from disclosure for the good cause described below,

including the state's privilege to protect the identity of informers as described in Idaho Rule of Evidence 509. Factual Background On November 13, 2022, law enforcement found the bodies of Madison Mogan, Kaylee Gonzalez, Zanna Cronodal, and Ethan Chapin at 1122 King Road in Moscow, Idaho. All four victims died from apparent knife wounds. Law enforcement found a K-bar knife sheath on a bed next to the bodies of Madison and Kaylee. The sheath was face down and partially under both Madison's body and the comforter on the bed. Law enforcement seized the K-bar knife sheath pursuant to a search warrant. The Idaho State

Police Lab in Meridian, Idaho located DNA on the K-bar knife sheath. The ISP laboratory determined the DNA came from a single source and that the source was male. Once law enforcement had single source DNA from the K-bar knife sheath, they conducted what is called a short tandem repeat, STR analysis. STR DNA analysis involves looking at 20 regions within human DNA and allows law enforcement to make a direct comparison between two STR DNA profiles. Law enforcement submitted the STR DNA profile obtained from the K-bar knife sheath to the Combined DNA Index System, CODIS, a database of STR DNA profiles from convicted offenders, arrestees, and crime scene evidence to identify the source of the DNA. No match was found. Unable to find a match using STR DNA analysis, law enforcement decided to use investigative genetic genealable to find a match using STR DNA analysis,

law enforcement decided to use investigative genetic genealogy to find a lead. Genetic genealogy allows individuals to trace, page 3, their lineage or connect with unknown family members using DNA. Typically, it involves sending a DNA sample, such as a tube of saliva, to a genetic genealogy service like ancestry.com or 23andMe the genetic genealogy service then creates a single nucleotide polymorphism SMP profile to use for genealogical purposes a SNP profile is different than str DNA profile and is used more often for genealogical purposes the genetic genealogy service then uses an algorithm to compare the user's SNP profile

to SNP profiles submitted to the genetic genealogy service by other users to determine ancestry and potential relatives. The genetic genealogy service shares with the user a list of potential relatives and, depending on the specific genetic genealogy service, personally identifying information on those individuals like their name, email address, and the amount of DNA the user shares with the potential relatives. The user does not receive any genetic information pertaining to other database users, i.e., users' DNA profiles are not shared with each other.

This same process, used frequently by members of the public, can also be used by law enforcement as part of their investigation, a technique referred to as investigative genetic genealogy, or IgG. Once a publicly available genetic genealogy service shows law enforcement potential relatives of the suspect, law enforcement applies traditional investigative

and genealogical methods to build a family tree in an effort to follow the tree to the suspect. Law enforcement applies traditional investigative and genealogical methods to build a family tree in an effort to follow the tree to the suspect or a close relative of the suspect. Family trees can be used to narrow down a potential suspect based on factors such as age, gender, opportunity, known physical, page four, characteristics of the suspect, etc. In this case, investigators used IGG to begin the process of developing a lead to the individual who left DNA on the K-bar knife sheath. The Idaho State Police utilized a private laboratory to develop an SMP profile from the DNA on the K-bar knife sheath. The private laboratory started using genetic genealogy to develop a family tree,

but after law enforcement decided the FBI would take over, the private laboratory ceased its efforts and sent the SMP profile to the FBI. The FBI uploaded the SMP profile to one or more publicly available genetic genealogy services to identify possible family members of the suspect based on shared genetic data. The FBI could then view through the genetic genealogy services portal

information regarding potential relatives of the suspect who left DNA on the K-bar knife sheath. Based on information the FBI could see in the genetic genealogy service portal, the FBI went to work building a family trees of the genetic relatives to the suspect dna left at the crime scene in an attempt to identify the contributor of the unknown dna the fbi built the family tree using the same tools and methods used by members of the public who wish to learn more about their ancestors for example the fbi consulted social media viewed vital records such as birth and death certificates and viewed other

information already contained in the user portal for the genetic genealogy service including unverified information submitted by other users of the genetic genealogy service the FBI also consulted subscription-based databases available to law enforcement for information on page 5, individual people. The product of the genealogy conducted by the FBI was a family tree that contained the name, birth date, and death date, if applicable, of hundreds of relatives as well as their familial connections between each other and the suspect, Brian C. Koberger. The FBI then sent to local law enforcement a tip to investigate defendant. The IgG process pointed law enforcement toward defendant, but it did not

provide law enforcement with substantive evidence of guilt. The FBI did not, for example, conduct a direct comparison between the SMP profile from the K-bar knife sheath and defendant's SNP profile. That type of direct comparison required the more traditional STR DNA analysis, which was conducted by the Idaho State Police, not the FBI. Prior to the FBI's IGG efforts, the ISP laboratory developed the traditional STR DNA profile from the DNA found on the K-Bar knife sheath. After identification of defendant, law enforcement recovered trash from the DNA found on the K-Bar knife sheath. After identification of defendant, law enforcement recovered trash from the home of defendant's parents and ISP laboratory did

STR DNA analysis of items from the trash for comparison to the unknown crime scene DNA. The comparisons indicated the DNA found on the trash belonged to the biological father of the individual who left the DNA on the K-bar knife sheath. Pursuant to a search warrant, law enforcement then collected DNA from defendant via a buccal swab. A traditional STR DNA comparison was done between the STR profile found on the K-bar knife sheath and defendant's DNA. The comparison showed a statistical match page 6. specifically the str profile is at least 5.37 octillion times more likely to be seen if defendant is the source than if an unrelated individual randomly selected from the general population is the source the genealogy conducted

by the fbi resulted in a lead that pointed law enforcement to defendant, but it did not result in the creation of many documents or records. Much of the information relied on by the FBI was only viewed through the user portal in the publicly available Genetic Genealogy Service and other investigative databases. The FBI did not download or create copies of those records. Once defendant was in custody, the FBI removed the SMP profile from the Genetic Genealogy Service pursuant to United States Department of Justice interim policy for forensic genetic genealogy DNA analysis and searching, DOJ policy. This means the FBI no

longer has access to view much of the information it used to create the family tree and cannot view it again without resubmitting the SMP profile to the Genetic Genealogy Service. To the state's knowledge, the only records that reflect the FBI's efforts to create the defendant's family tree is the family tree itself, notes jotted down by FBI agents

as they constructed the family tree, and any records created to document the removal of the SMP profile from the Genetic Genealogy Service pursuant to DOJ policy. The state has not seen nor does the state possess these records or copies of these records. Argument. The state seeks a protective order for a narrow category of information, namely, page 7, information related to the use of IgG in this case Idaho criminal

rule 16 governs discovery in criminal proceedings state versus ish 166 Idaho 492 510 2020 rule 16 is broad but it is not a free-for-all. The rule contemplates the exchange of discrete categories of information between the state and the defense. As relevant here, the rule contemplates the state will provide three discrete categories of information. Any material or information that would tend to negate the guilt of the accused, CICR 16A. Any documents or objects that are material to the preparation of the defense

intended for use by the prosecutor as evidence at trial, or were obtained from the defendant or belonged to the defendant can show a substantial need for the information in preparation of his case. See ICR 16B10. The defendant served on state a request for discovery that calls for the IGG information even though the IGG information falls outside of Rule 16 without first obtaining an order from this court. The state now seeks, and the court should enter, an order protecting the information related to the use of IGG in this case. Specifically, the state seeks to protect the following information The raw data related to the SMP profile and the underlying laboratory documentation Related to the development of the profile such as chain of custody forms

laboratory standard operating procedures analyst notes, etc all information related to IgG efforts in creating a family tree and identifying defendants' potential relatives, including the identities of the Genetic Genealogy Service services and the personally identifying information, page 8, of defendants' relatives. The state does not seek to protect and has or will disclose the following information. A genotype kit report from the private lab utilized by the Idaho State Police, which documents that a DNA test was performed.

Information related to the STR DNA analysis conducted using the DNA recovered from the K-bar knife sheath and the DNA recovered from defendant's parents' trash. Information related to the STR DNA analysis conducted using the DNA recovered from the K-bar knife sheath and the DNA recovered from defendants via a buccal swab. This court should grant an order protecting the IGG information in this case because the IGG information does not fit into any of the discrete categories listed in Rule 16 and

good cause exists to protect the information, including the need to protect the privacy of defendant's relatives. A. Rule 16a does not require the disclosure of the IGG information because the IGG information is not exculpatory. Rule 16a of the Idaho Criminal Rules does not require the disclosure of the IGG information because the IGG information does not tend to negate the guilt or reduce potential punishment of defendant. The rule requires the state to disclose any material or information in the prosecuting attorney's possession or control that tends to negate the guilt of the accused as to the offense charged

or that would tend to reduce the punishment for the offense. ICR 16a as written, this rule largely mirrors the federal Brady requirement that the state produced to a criminal defendant all material exculpatory information. But rule 16a and Brady are limited to exculpatory information. They do not require the prosecutor to make page 9, a complete and detailed accounting to the defense of all police investigatory work on a case. While the question of whether IgG information must be disclosed as exculpatory is one of first impression in Idaho, courts outside of Idaho have correctly decided that IgG information need not be disclosed as exculpatory. See EG in the matter of Michael Green, ruling on motion to compel production of discovery

attached here to as Exhibit A. In Green, law enforcement used DNA recovered from the victim's nightgown to identify the defendant as a possible suspect. See Green OP2. Then they surreptitiously recovered items from the defendant's garbage that contained DNA and found through STR DNA testing that the DNA in the defendant's garbage matched the DNA found on

the victim's nightgown. A saliva test then confirmed that the defendant's DNA matched the DNA on the victim's nightgown. The defendant moved to compel the disclosure of the IgG information. After an in-camera hearing, the court denied the motion. The court explained, The evidence that is material to the defendant's guilt or innocence is the testing that followed the IgG investigation, which directly compared a fresh swab of the defendant's DNA with the DNA profile collected from the victim's nightgown. It is only this evidence that the people intend to present at trial. The people are not obligated to provide its preliminary search of the genealogy databases for possible matches, which is investigatory in nature and is not exculpatory or material to the defendant's defense.

As this case illustrates, the state is not required to disclose the IgG information under Rule 16a because the IgG information the state seeks to protect is not favorable to the defendant on the issue of guilt or punishment. Crime Stories with Nancy Grace. Page 10. The information provided to local law enforcement by the FBI was nothing more than a tip, a lead for local law enforcement to follow up on, should they choose to. The genealogical tip did not prove or substantiate defendant's guilt. Rather, the tip allowed local law enforcement to focus their investigation on defendant and

obtain independent material evidence of his guilt, all of which the state has disclosed or will disclose. Specifically, with respect to DNA, an STR DNA analysis found defendant's DNA matched the DNA collected from the K-bar knife sheath. To the extent that IgG information has any relevance, the fact that it led law enforcement to defendant means it is inculpatory rather than exculpatory in nature. Thus, Rule 16a does not require the disclosure of the IGG information because it isG information does not satisfy any of the are material to the preparation of the defense, two, are intended for use by the prosecutor as evidence at trial, or three, were obtained from the defendant or belong to the defendant. ICR 16B-4.

The IGG information does not satisfy any of these criteria. First, the IGG information is not material to the preparation of the defense defendant is charged with killing four people not with being related to a particular person the mere fact that uploading the completed s p profile into a publicly available genetic genealogy page 11 service-led law enforcement relatives of defendant does not affect the strength of the evidence against him the strength of the evidence against him. The strength of the evidence against defendant in terms of DNA evidence depends upon the confirmatory results from the STR DNA analysis between the defendant's DNA profile and the DNA recovered from the K-bar knife sheath,

as explained further below. The state intends to introduce the STR DNA analysis at trial and does not intend to enter any evidence pertaining to the development of a SNP profile or the tree building process for inculpatory purposes. The state has disclosed or will disclose the information it has related to the STR DNA analysis conducted in connection with this case. The immateriality of the IGG information to the preparation of the defense is perhaps best understood by way of analogy. The tip that came from the IgG process is no different than other types of technology hits that put law enforcement on the trail of a suspect. See United States v. Johnson.

For example, in Johnson, law enforcement recovered a suspect's DNA from a ball cap left at the scene of a bank robbery. One, law enforcement ran the DNA profile through CODIS, which resulted in multiple hits, including the defendant. A scientist narrowed down the hits to the defendant, and law enforcement confirmed it was the defendant's DNA after acquiring a buccal swab from the defendant. The defendant moved to compel the other CODIS hits from the government, but the court denied his motion. The court explained that the DNA evidence material to the defense was the direct comparison between the DNA on the hat and the DNA taken directly from the defendant. The fact the defendant was first identified as a possible suspect based on a database search simply does not matter. Here, the IGG information, like the initial CODIS hits in Johnson, page 12, is not material to the preparation of the defense because it only shows how defendant was first identified as a possible suspect.

Moreover, the IGG information could not support an argument from defendant that law enforcement violated his Fourth Amendment rights by entering the DNA collected from the K-bar knife sheath into a genetic genealogy service. A defendant cannot prove a violation of the Fourth Amendment without first showing he or she had a reasonable expectation of privacy in the place searched. State v. Mann, the K-bar knife sheath was abandoned at the scene, as was the DNA inside it. Defendant cannot show that he had a reasonable expectation of privacy and DNA left at the scene of a quadruple homicide

or in the genetic information of his relatives who voluntarily provided their own DNA to a genetic genealogy service. C. Piro v. State, 2008. Holding defendant did not have a reasonable expectation of privacy in a water bottle from which officers recovered DNA, and observing that this court has found no case holding that a reasonable expectation of privacy should be determined by a suspect's desire to keep his or her genetic identity private. Additionally, the sheath and defendant's DNA left on the sheath were seized pursuant to a valid search warrant issued by a magistrate judge, which means the law presumes that the search was reasonable, state v. Hutton. the sheath were seized pursuant to a valid search warrant issued by a magistrate judge, which means the law presumes that the search was reasonable, State v. Hutton. When a search is conducted pursuant to a warrant, the burden of proof is on the defendant to show that the

search was invalid. Second, the state did not rely on the IGG information to establish probable cause for defendant's arrest, did not present the IGG information to the grand jury, and has no Page 13. defendant's DNA to the DNA on the K-bar knife sheath to establish defendant's guilt. Again, the state has disclosed or will disclose information related to the STR DNA analysis conducted in connection with this case. Third, the documents and tangible objects encompassed in the IGG information were not obtained from defendant and defendant has no property interest in them. To the extent the DNA on the K-bar knife sheath once belonged to defendant, he abandoned that DNA when he left it at the crime scene of a quadruple homicide.

Defendant has never had a property interest in the records that reflect the SMP profile developed from the DNA on the K-bar knife sheath, nor has he ever had a property interest in the information gathered from the genetic genealogy service using the SMP profile, such as the information provided to the genetic genealogy service by defendant's relatives. In short, none of the IgG information the state seeks to protect

came directly from defendant or currently belongs to defendant, and thus Rule 16b-4 does not require its disclosure. c. Rule 16b-5 does not require the disclosure of the IgG information because the IgG information is not the result of a scientific test or experiment. Rule 16 also requires the disclosure of information related to scientific experiments, but it only applies to limited information namely rule 16 requires the disclosure of results or reports of scientific tests or experiments made in connection with the particular page 14 case icr 16b5 the rule does not require the state to disclose what law enforcement does with the results or reports more Moreover, a process, procedure, or investigative technique

is not a scientific test or experiment merely because it involves the comparison of information or objects or requires the use of logic or reason. C. State v. Matthews, 1985, holding an officer's comparison of two keys did not constitute a scientific test or experiment because it was merely an observation of similarity between two keys. There were two types of scientific tests conducted with respect to DNA that fall within the purview of Rule 16b-5.

First, law enforcement used STR DNA analysis to compare the DNA on the K-bar knife sheath to defendant's father and then to defendant. As required by Rule 16b-5, the state has provided the reports from those scientific tests. The state also provided other information related to the STR DNA analysis because the state plans on using that information at trial. Second, the private laboratory developed the SMP profile from the DNA on the K-bar knife sheath. As required by Rule 16b-5, the state will produce the report that documents the DNA test. Rule 16b-5 does not require the state to disclose how the SMP profile was used and the genealogy the FBI conducted based on the DNA information does not constitute a scientific test or experiment. The FBI submitted defendant's SMP

profile to one or more genetic genealogy services and were able to view potential relatives and access unverified data added by users in the genetic genealogy service. Starting with those potential relatives, the FBI engaged in traditional genealogy to put together a family tree that could lead them to the suspect. Putting together the family tree required the lead them to the suspect putting together the family tree required the fbi to review sources page 15 such as social media publicly available databases subscription-based databases vital records like birth certificates census records and historical newspapers none of those actions can accurately be characterized as a scientific test or experiment

the product of the FBI's efforts was a family tree comprised of hundreds of defendants relatives put simply the family tree created by the FBI cannot accurately be described as the results or reports of scientific tests or experiments and thus falls outside of Rule 16 b5 D good cause exists for this court to enter an order protecting the IGG information and, if necessary, the court should hold an in-camera hearing. The mere fact that the IGG information does not fall within Rule 16 is reason enough for this court to enter an order protecting the IGG information. But, the state is not seeking the protection of the IgG information as an exercise in obstinance. Instead, the state seeks to protect hundreds of innocent civilians from having their personal

information including their names, birth dates, and familial connections to the defendant in a high-profile quadruple homicide from being disclosed. The disclosure of the IgG information risks harm not only to these indirect informants, but also to the genetic genealogy service used by the FBI and the IGG investigative technique. This court should follow the procedure laid out by Idaho's appellate courts to determine whether the IGG information must be disclosed. Page 16. 1. Providing the IGG information would require the disclosure of the identity of informants and prejudice to state. The process used to collect IGG information required gathering information from several informants, including the Genetic Genealogy Service to which the SMP profile was submitted and, indirectly,

from the relatives of defendant who hit on the SMP profile. Pursuant to Rule 16, disclosure must not be required of an informant's identity unless the informant is to be produced as a witness at a hearing or trial. The state has no intent of presenting the IGG information for which a protective order is sought as evidence at trial, which means none of the IGG informants will be produced as witnesses at trial. The nondisclosure of this information is consistent with the state's privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer.

As a general matter, we protect the identity of informants, the U.S. Supreme Court has explained, to encourage the flow of information concerning the commission of crimes to law enforcement, McGray v. Illinois, 1967. Such communications are discouraged if the informer's identity is disclosed. The court's words, written long before SNP profiles were used for investigative purposes, apply with particular force to IgG information. Both the genetic genealogy services to which law enforcement agencies submit a suspect's SMP profile and the customers of those genetic genealogy services who may unknowingly be related to a suspect would be less likely to make their information available if courts start requiring the disclosure of their information in criminal cases, especially in high-profile criminal cases.

See Green, Protecting IGG Information in page 17. Part because the court retains wide discretion to protect against the disclosure of information that might unduly hamper the prosecution or violate some other legitimate government interest. Number two, this court should allow the process laid out by Idaho's appellate courts to determine whether the IGG information must be disclosed. Rule 16 allows this court to enter a protective order for good cause. ICR 16-1, if the court finds it necessary to review evidence in camera to decide whether disclosure is required, the rule itself allows the court to

do so. The rule expressly contemplates that in deciding whether to enter a protective order, the court may permit a party to show good cause by a written statement that the court will inspect ex parte ICR 16-1. If relief is granted, the court must preserve and seal the entire text of the party's statement, ICR 16-1. Thus, Rule 16, standing alone, provides this court with the tools it needs to review evidence in camera if the court decides it cannot enter a protective order based on this brief alone. Idaho's appellate courts have further explained the process district courts should use when faced with precisely this issue. The need to protect both the state's interest in nondisclosure of the identity of its informers

and defendant's right to receive exculpatory information. See State v. Wilson, 2006. In Wilson, for example, the court explained that this situation calls for a two-step process. First, the defendant must make a threshold showing that the informant may be able to give relevant testimony. If the defendant successfully makes that showing, an in-camera proceeding then provides an opportunity for the state to show that the informant's knowledge is not of such relevance that disclosure should be, page 18, ordered. See also State v. Farlow, 2007, relying on Wilson to explain the same two-step process.

Once the trial court has concluded the defendant meets the initial threshold showing, it must then conduct the in-camera examination. Further, the Idaho Supreme Court has confirmed that it is desirable and proper to hold such an in-camera hearing before ordering

or denying disclosure. State v. Hosea, Idaho, 1998. Even if this court finds that the IGG information falls within Rule 16, this court should follow the guideposts that Idaho's appellate courts have planted for the protection of informants. Defendants should first be required to establish that the IGG information is in fact relevant to the charges against him. If he can do so, this court should allow the state to present information at an in-camera hearing for the court to determine whether the IGG information must be disclosed. Explaining the in-camera presentation

ordinarily may be made in the form of affidavits, but allowing the trial court to examine witnesses as well if the trial court deems it necessary conclusion based on the above the state respectfully prays for the court to enter an order protecting the igg information from disclosure as it falls outside the purview of rule 16. in the alternative if the defense can establish the igg information is in fact relevant the state asks this court to conduct the requisite in camera hearing for the state to present information related to the IGG information and then enter a protective order under ICR 16-1 that the IGG information is not subject to discovery and need not be disclosed by the state. Page 19. Respectfully submitted this 23rd day of June, 2023.

William W. Thompson, Jr., Prosecuting Attorney. Jeff Nye, special assistant attorney general. Crime Stories with Nancy Grace. In the District Court of the 2nd Judicial District of the State of Idaho in and for the County of Latah, State of Idaho Plaintiff v. Brian C. Koberger, Defendant, Case No. CR29-22-2805, Objection to State's Motion for Protective Order. Comes now Brian C. Koberger by and through his attorney, J. Weston Logsdon, Chief Deputy Litigation, and hereby objects to the state's motion for protective order, filed June 16, 2023, on the grounds that the material the state seeks to hide is discoverable and must be provided to Mr. Koberger. Page 2. Factual Background. On November 13, 2022, law enforcement, responding to a 911 call, found Madison Mogan, Kaylee Gonzalez, Zanna Cronodal, and Ethan Chapin deceased. Law enforcement later found a K-Bar knife sheath placed next to Ms. Mogan on her bed. The sheath was placed button-side down and partially under Ms. Mogan and the comforter. On November 20, 2022, the Idaho State Police Lab in Meridian, Idaho,

located DNA on the button of the sheath and performed STR analysis that led nowhere when ran through CODIS, Combined DNA Index System, other than to show the provider was a male. By December 17, 2022, lab analysts were aware of two additional males' DNA within the house where the deceased were located and another unknown male DNA on a glove found outside the residence on November 20, 2022. To this date, the defense is unaware of what sort of testing, if any, was conducted on these samples other than the STR DNA profiles.

Further, these three separate and distinct male DNA profiles were not identified through CODIS, leading to the conclusion that the profiles do not belong to Mr. Koberger. While this was ongoing, police were investigating many various possible suspects. Many of them provided DNA. At least one had his DNA surreptitiously taken from a discarded cigarette. Many also had their phones taken and downloaded. One area of the investigation had to do with a white sedan seen on a camera located at 1112 King Road, first glimpsed by officers on November 18, 2022.

By November 25, 2022, police believed the car to be a white Elantra and asked law enforcement to be on the lookout for one. Precisely how the police came to believe the car was an Elantra is still unknown. A report from an analyst for the FBI dated March 21, 2023 shows the analyst heavily relying on a video of a car heading in the wrong direction and at the wrong time on Ridge Road. Page 3. The state's latest filing admits that somewhere within all of this they engaged in investigative genetic genealogy using the dna taken from the button on the sheath and now claims that it was due to the use of this technique that it tipped local law enforcement to investigate mr coberger it remains unclear what the police first relied on in focusing their investigation on mr coberger no matter what came

first the car or the genetic genealogy, the investigation has provided precious little. There is no connection between Mr. Koberger and the victims. There is no explanation for the total lack of DNA evidence from the victims in Mr. Koberger's apartment, office, home, or vehicle. In essence, through the lack of disclosure and their motion to protect the genetic genealogy investigation, the state is hiding its entire case.

Argument. The state apparently thinks that they need not explain how they came to think that it was Mr. Koberger's DNA on the sheath. Presumably, the defense is expected to accept at face value that the sheath had touched DNA just waiting for testing by all the FBI's myriad resources. Additionally, the defense is to guess whether the state focused its investigation on Mr. Koberger via a bizarrely complex DNA tree experiment or through its faulty identification of the vehicle involved in this case.

Perhaps unsurprisingly, Mr. Koberger does not accept that his defense does not need this information. It rather obviously falls within the ambit of Rule 16b-4 and 5, a fact the state's briefing makes clear in its kitchen sink approach to their briefing. The state begins their argument claiming Rule 16 has no interest in IgG testing and then ends their argument claiming, page 4, that somehow people will stop sharing their genetics if they were to realize the government is watching. Both arguments must fail. To begin with, the state apparently only wants to prevent Mr. Koberger from seeing how the IgG profile was created and how many other people

the FBI chose to ignore during their investigation. In essence, the state argues that if the later STR testing is accurate, then there is no reason to concern ourselves with how the state came to investigate Mr. Koberger. State's brief at 9, what the state's argument asks this court and Mr. Koberger to assume is that the DNA on the sheath was placed there by Mr. Koberger and not someone else during an investigation that spans hundreds of members of law enforcement and apparently at least one lab the state refuses to name.

Perhaps most puzzling is the state's argument that while Rule 16b-5 requires them to turn over the results or reports from scientific investigations, it does not require the state to disclose what law enforcement does with the results or reports. State's brief at 14. First of all, that sounds like an admission that the information as to how the IGG was carried out should be disclosed. Second, what law enforcement does with results or reports is covered by Rule 16B6, Statements of Prosecution Witnesses, and eight police reports. Frankly, the fact that members of the FBI are so concerned about permitting Mr. Koberger to know what they were up to with what was supposedly his DNA does not give one the impression that there is nothing to see here as the state seems to imply.

Finally, the state's claim that ICR-16G2 applies to this matter is quite bizarre. Presumably, the independent company the government relied on was paid for its work and would stand by it in court. The state provides no real argument as to why the company needs to be protected. Mr. Koberger is left to suspect they wish to keep their methods from being page 5. Question. To the extent that there is some concern about intellectual property that can be addressed via a protective order that permits Mr. Koberger and his defense team to review their work. Second, the state appears to argue that everyone living on earth that provides genetic information is A, unaware that their DNA could be used by a government somewhere for

something, and B, is an informant within the meaning of the term in the rule the state citations to cases involving actual informants hardly help it make this incredible leap no court has ever found the existence of a dna informant it would appear that the state is acknowledging that the companies are providing personal information to the state and that those companies and the government would suffer if the public were to realize it. The only two databases that allow access are ones that already inform their users and those users can opt in to allow law enforcement searches. The statement by the government implies that the databases searched may be ones that law

enforcement is specifically barred from, which explains why they do not want to disclose their methods. If the fact that the government is looking at the genetic information that people are sharing was at all an issue, then the state's very public acknowledgement of such investigations was clearly a big mistake. In any case, it is hard to understand why Mr. Koberger should be the one to suffer because these companies and our government choose to either mislead or not educate the public. According to the Pew Research Center in February 2020, 48% of respondents thought it was acceptable to give their data to law enforcement to solve crime. 33% said no, and 18% were unsure. James Halpin, Police Use of Forensic Genealogy Tech Raises Privacy Concerns,

The Citizen's Voice, March 28, 2022. However, 60% thought their genetic information, page 6, could not be shared with other companies. There is no federal law about the sharing of genetic information, but multiple states have begun regulating police use mr coberger has reasons to be extremely suspicious of the igg used in this case rather than seeing it as some sort of complex tree building that led to him it appears far more like a lineup where the government was already aware of who they wanted to target rather than have the investigation done by someone blind to that fact,

the FBI chose to do it themselves. This is akin to the police pulling in Mr. Koberger and five of his cousins off the street and then pointing at him. The only authority the state has in its favor that is on point is a trial court order from a Californian case that settled before it could lead anywhere. That decision relied on its People v. Johnson, 2006. The court in Johnson was not deciding whether a defendant had a right to know how he was identified, only that his identification could come in a trial without a mini-trial about it. A better case on the issue is State v. Artiga. In this case, an appellate court heard similar arguments about the need for software

used for facial recognition to be discovered to the defendant, though they would not be admitted at trial. The court considering the matter found, We are keenly aware the cases we have discussed involved instances concerning Fry hearings and potential expert testimony, and that here we are dealing instead with eyewitnesses who have already identified the perpetrator and the identification found admissible under Wade. However, the facts of this case convince us defendant will be deprived of due process if he does not have access to the raw materials integral to the building of an effective defense. Page 7.

The evidence sought here is directly tied to the defense's ability to test the reliability of the frt as such it is vital to impeach the witness's identification challenge the state's investigation create reasonable doubt and demonstrate third-party guilt the frt's reliability has obvious implications for the accuracy of the identification process because an array constructed around a mistaken potential match would leave the witness with no actual perpetrator to choose. The reliability of the technology bears direct relevance to the quality and thoroughness of the broader criminal investigation, and whether the potential matches the software returned

yielded any other viable alternative suspects to establish third-party guilt. Defendants' requests for the identity, design, specifications, and operation of the program or programs used for analysis and the database or databases used for comparison are relevant to FRT's reliability. At trial, the state will likely have the investigating officer explain the police investigation, including the process of retrieving the still photo from the surveillance cameras ultimately used to generate an image of defendant. Although we do not speculate regarding the exact nature of this testimony

and whether defendant will seek to impeach it the fact the state does not bear the burden of adducing testimony regarding the composition of the photo array does not bar the defense access to the discovery sought mr coberger finds himself in a similar position as mr artiga a massive investigation came to focus on him and him alone. The state appears to be trying to hide its original domino such that he cannot discover why. Mr. Koberger has a right to discover and question the investigation that led to him. This court should so find. Dated this 22nd day of June 2023 by Jay Logsdon, Chief Deputy Litigation Assigned Attorney. All of this legal maneuvering, motions being filed, decisions being made, the case on the docket for trial

as the victim's families wait for their day in court. Nancy Grace, Crime Stories, signing off. Goodbye, friend.