Crime Stories with Nancy Grace - KOHBERGER TRIAL FIASCO IGNITES ANGER, POISONS LOCALS?

Episode Date: April 9, 2024

As the Kohberger defense team moves ahead with their trial preparations in hopes of moving the proceeding out of Latah County, they put together a research project. In that research project, they hired a polling company to survey area residents to ask questions about how much the residents may know about the murders. The company had reached around 400 residents before a concerned citizen recorded one of the survey phone calls and contacted the district attorney's office to complain. Prosecutors say the polling company was asking questions to plant negative opinions of Kohberger in potential jurors' minds in the hopes the calls would serve to prove that local people were prejudiced against Kohberger and that the trial should be moved to another county. Joining Nancy Grace Today: Tara Malek – Bosie, ID, Attorney & Co-owner of Smith + Malek; Former State and Federal Prosecutor; X: @smith_malek Chris McDonough – Director at the Cold Case Foundation, Former Homicide Detective; Host of YouTube channel: “The Interview Room” Dr. Leslie Dobson - Clinical and Forensic Psychologist   Joe Scott Morgan – Professor of Forensics: Jacksonville State University, Author, “Blood Beneath My Feet,” and Host: “Body Bags with Joseph Scott Morgan;” Twitter/X: @JoScottForensic Sean O'Driscoll - Crime & Courts Correspondent at Newsweek; X: @seanpodriscoll    See omnystudio.com/listener for privacy information.

This is an iHeart Podcast. Crime Stories with Nancy Grace. Brian Koberger's trial erupts in anger in the courtroom. Are local and potential jurors being poisoned? I'm Nancy Grace. This is Crime Stories. The judge erupts in anger in the courtroom. As we learn, the defense team for Brian Koberger has been reaching out by phone to potential jurors, basically tainting the jury pool. But now we realize giving away their defense strategy. You know, it's been so long now since the quadruple slay in Idaho.

Many people are getting fuzzy on the facts, and that's exactly what the defense wants. Delay, delay, delay is the defense attorney's best friend. But here's a harsh reminder. On the evening of November 12th and into the early morning hours of November 13th, Kaylee and Madison arrived home at approximately 1.45 a.m. after visiting a local bar and a street food vendor. Ethan and Zanna were also out in the community at Sigma Chi, and they arrived home at approximately 1.45 a.m. Two surviving roommates who were also out in the community arrived home at approximately 1 a.m later on the morning of november 13th at 11 58 a.m a 911 call was placed the call reported an unconscious person the call originated from inside the residence and a surviving roommate's

cell phone was used. But it was not an unconscious person. Listen more to police captain Roger Lanier. During that call, the dispatcher spoke to multiple people who were on scene. Moscow police officers responded and found two victims, two on the second floor and two on the third floor of 1122 King Road. The results of autopsies indicated that the four were stabbed multiple times and were likely asleep during the attack. Some had defensive wounds and there was no sign of sexual assault. Joining me in All-Star panel to make sense of what we know right now, but there is a major, major kerfuffle in the courtroom igniting anger from the judge. Is it true that Koeberger's defense team has actually been communicating with potential jurors

long before a jury is even struck. And is this an insidious way of tainting the jury pool and getting the change of venue they so desperately want? Take a listen to Dave Mack, Crime Online. As the Coburger defense team moves ahead with their preparation to get the trial moved out of Latah County, they put together a research project and hired a polling company to conduct a survey of area residents and ask them questions about how much they may know about the murders.

The company had reached around 400 residents before a concerned citizen recorded one of the jurors' minds in the hopes the calls would serve to prove that local people were prejudiced against Koberger and the trial should be moved to another county. First, to highly respected journalist, the crime and courts correspondent at Newsweek, Sean O'Driscoll. Sean, thank you for being with us. What the hay is happening? Yeah, it's a very serious development, Nancy. We have a situation where 400 jurors in a small county have now been contacted and told. They've been given nine questions about how they feel about Brian Kohlberger. And those are questions that if they were ignoring this case, they now know an awful lot about it. Very incriminating information about Brian Kohlberger that is now,

as a prosecutor said, is now saturated with the juror, with potential jurors in the case. You know what's interesting? Guys, with me, Shawna Driscoll, Crime and Courts correspondent, Newsweek, to Tara Malik, joining us, high profile lawyer out of this jurisdiction there in Idaho, it's smithmalik.com. Tara, if the state, the prosecution had done this, you know what would happen? Very possibly a misdrive before the trial even starts with prejudice. In other words, the state may not be allowed to retry the case. This is a big deal, Tara. It's a very big deal.

I mean, just to remind everyone, there's been a gag order issued by the judge. And so the parties are not supposed to be speaking publicly or disseminating publicly anything about the case. And so the judge certainly made it clear that he was displeased with the process that the defense had undertaken to go about this polling. And you're talking about a small, you know, a small county, 400 people being contacted is a really big deal. And some of those questions were certainly seem to be planting information or suggesting information that I think the prosecutor had remarked were not factually accurate and wouldn't be introduced at the trial itself. Okay. She sounded like a criminal procedure professor speaking to three L's, not one L's,

but three L's because they know a good bit of procedural language. Tara, let me break it down. These questions that were asked of potential jurors on the phone, and the judge got a hold of an audio tape. Somebody taped one of these calls from the defense. And it brings up issues that may not even be allowed at trial. Hey, let's see the tears of what exactly was asked of these potential jurors. Nine questions that we know of. The judge, whose last name is Judge, Judge, Judge, let me just say royally PO'd, technical legal term.

Okay, here we go. Have you read, seen, or heard if Brian Koberger was arrested at his parents' home in Pennsylvania? Well, whoa, wait we go. shorts, I think possibly his underwear, wearing rubber gloves, separating trash. Okay. Right there. Strike one. What normal guy is wearing rubber gloves in his parents' kitchen in his underwear, separating the trash? Okay. Number two, have you read, seen, or heard if police found a knife sheath on the bed next to one of the victims? Okay, that goes straight to finding DNA. Nine questions in all. Very quickly, if I could see three and four. Have you read, seen, or heard that DNA found on the knife sheath was later matched to Brian Koberger?

Okay, wait a minute. Wait a minute. What if by some impossible feat, the defense managed to get that DNA thrown out? Well, now they've just taken the jury pool by telling them there was DNA on the knife sheath that matched to Brian Koberger. Four, have you read, seen, or heard if Koeberger owned the same type of car reported seen driving in the neighborhood where the killings occurred? Right there, we see where the defense is going. We all know his vehicle was spotted in the area. Hold on, Liz. Cart before the horse. But now we see they're headed towards saying that just looked like his car, not his car. Five, have you read,

seen, or heard if the cell phone tower data showed Koberger made several trips near the victim's home in the month before the killing? That tells me they're going to attack the cell phone tower information. Have you read, seen, or heard if university students in Moscow and their parents lived in fear until Koberger was arrested for their murders? What does that tell me? They're going to tell the jury that Koberger's arrest was premature and police were pressured because everyone was living in fear. Let's see the rest. Let's see number seven. Have you read, seen, or heard if

Koberger said he was out driving alone the night of the murders? Man, I'd come up with a different alibi if I could. But sadly for them, they've already committed to this. They can't change it now. Eight. Have you read, seen, or heard Koberger stopped one of the victims. What? What is that about? Stopped one of the victims? I think they meant to say stopped one of the victims. Did they actually say stopped and the court somehow transcribed it incorrectly? And nine, have you read, seen, or heard if Koeberger had followed one of the victims on social media. And you know what's interesting? That may not even come into evidence. Allegations that Koberger had been stalking, and we think it was Kelly Gonsalves, not sure yet, one of the victims on social. That may never come into

evidence. Okay, back to our all-star panel, to Sean O'Driscoll, crime and courts correspondent for Newsweek. Hey, Sean, I want you to take a listen to the prosecutor. Angry. This is him angry in court. Listen. Your Honor, there is absolutely no question but that those questions are disseminating by means of communication, evidence expected to be presented, evidence that could be or would be inadmissible at trial.

And I will say it, there are a number of these representations placed in the form of a question, but representations of fact that are not true or that would not be offered to try. Sean O'Driscoll joining us from Newsweek. They're basically leading questions, which is what the prosecutor or the defense would do if they had a witness from the other side on cross-examination. You basically give your theory of the case one sentence at a time, and at the end you say, isn't that true? That's basically what these questions are. Now, tell me the whole thing.

How did this go down Sean they hired a polling company for the defense to try and show that there was too much bias against Brian Coker Koberger and the local county so then they call somebody that person got a bit suspicious as a call recorded the call and then went to the DA's office to make a complaint about it and that's when they learned about all of these questions. And as you say, they are leading questions. I mean, the very definition of a leading question is whether you can answer it with a yes or no question, all of which in this case you can. I mean, it's like, are you aware that Nancy Grace is accused of stealing a handbag and that we all now live in fear of her?

I mean, it's so tainting the jury pool, as the prosecutor says, that it's difficult to see how they can continue on with this because 400 people are now aware of all of these questions. And as Tara Malik pointed out, a high profile lawyer there in Idaho, it's a very small jurisdiction. Hey, there's nothing wrong with being a small jurisdiction. I grew up in rural Bibb County. We were not even in a city, a very idyllic childhood. So this city, people keep saying, oh, it's small, like there's something wrong with it. But what that means for us is that this has a more profound effect on a smaller jury pool because 400 people out of a jury pool of 3000 is a lot. That's a hypothetical. Let me bring in our other guests. I want to go

first to Chris McDonough. He is a director of the Cold Case Foundation, former homicide detective with hundreds and hundreds of homicide investigations under his belt. I found him on the interview room. And what fascinated me with what he did along with his wife, they were driving at about two miles an hour. This is before I went to Moscow. And showing me everything I needed to know about the layout of where the murder scene was, the roads that led to

it. They're very narrow. There were so many evidentiary details in that drive along. I had to meet this guy and everything I learned in that video turned out to be true. Chris McDonough and Joe Scott Morgan, I want to talk to the two of you. Joe Scott, of course, is professor of forensics at Jacksonville State University, author of Blood Beneath My Feet on Amazon. He is a death investigator, and he is the host of Body Bags with Joe Scott Morgan podcast. Now, to Chris and Joe Scott. First to you, Chris. We're talking about courtroom antics. Can we talk about what this case is about?

Because as Liz and Jackie were showing me photos and sound, we're kind of forgetting about the four victims. Look at them. Look at them. This is them in life. Joe Scott's going to tell you about how they were found in death but isn't it true chris mcdonough that so often the victims get lost in the sauce of all the courtroom antics i mean i could just snap the head off this defense attorney ann taylor if i could get close enough to her chris, bring it all home. What about these victims losing their lives? Yeah, let's never forget that, right, Nancy? I mean, here you have four innocent

college students with their whole lives ahead of them. I mean, and then they're slaughtered in their bedroom while they're sleeping. And that means generations now have stopped instantly. No more grandbabies, et cetera, for the surviving family members as well. So this is a huge, huge situation where the victims do get lost sometimes through the courtroom. And I think it's imperative that not only the community around there, but, you know, to your point, the world remember, they have to remember that the victims here need justice. And that justice needs to come swiftly sometimes. And these court romantics like this sometimes, you know, clog that wheel. This guy is reportedly getting vegan meals, his own TV, control of the remote, visits, you name it.

I guarantee you he's getting love letters. Think about that for a moment. What is the judge talking about? That he, the judge who is Judge Judge, Judge is his last name, that he is somehow violating the rights of Koberger. I'll tell you in a nutshell. First of all, the Koberger judge slamming the defense for quizzing local potential jurors, basically causing an error in the trial yet to be and guaranteeing a change of venue, which is what they want. But also a very insidious, sneaky thing they did was that when the judge wanted to stop the polling, they are now claiming that is violating Coburger's right to due process. What is due process? It means that basically you're

getting treated fairly under the system that we have established in the U.S. You get a right to a jury. You get a right to a fair jury. You get a right to a trial. You get a right to a lawyer, even if you cannot afford one. There's a whole host of rights and privileges and everyone is to be afforded due process, a fair trial. They're now claiming the judge has taken that away from Brian Koberger. He's kicked back having his vegan meal right now, laughing his rear end off. Okay. I want to talk one more moment before we go back into what's happening right now, the anger that has been ignited in this courtroom. And I want to go to Joe Scott Morgan, a professor of forensics, Jacksonville State University. Joe Scott, a lot is being made of

trial maneuvers. I want to talk about how these four beautiful young Idaho students were found. See, we're seeing them in life. That's not how they were found. That is not how, according to the state, Koberger left them. Explain. Chris mentioned the term a little while ago of slaughter. And I'd say that that kind of sums it up,

what we're talking about here, because we're talking about here, because we're talking about multiple stab wounds and not just stab wounds. If we are to believe what has been released relative to these defensive injuries and also one injury in particular defensively, where it sounds as though perhaps the knife was actually drug across the palm of one of the victim's hands, cutting all the way down to the tendons. These were viable, young, lovely students, children, somebody's children, certainly, that loved them very much. And now they're absolutely gone.

And Nancy, one other thing here that we really have to plumb the depths of here, aside from, you know, all of these wranglings that they're talking about, this is, okay, if I were to rate this case one to 10, 10 being the most complex relative to the forensics that are involved, this is going to be right at about a 10, because you're dealing with all of these various facets that we're going to have to examine and be examined in court. We just talked about them outside the context of the courtroom. When you get into this, when you really begin to dig in, there's going to be a tremendous amount of blood evidence, not to mention this DNA evidence that has been at the point of the spear

with all of this and the electronic evidence. Then something that has raised its head along the way is this forensic genealogy that's also come into play. And so the case is complex enough. And you're going to throw this into this mix. And you really, really, if you think the jury pool is tainted at this point, my concern is that the continuity of the evidence is going to be bespoiled in this as well, because this narrative is going to be highly complex to be able to lay out to a jury so that they understand it. I have the experience that jurors understand really well, exactly, even complex scientific evidence that they've been given. Joe Scott, you've been to many, many crime scenes,

as have I. I remember my first mass killing. There were three dead bodies. Blood was literally running down a gutter because one of the young boys that had been shot down on a playground around 11 p.m. on a Sunday night had made a run for it and he got as far as a chain link fence. He was jumping the fence when he too was shot dead and he hung on the fence for an extended period of time, bleeding out into the gutter below the fence. By the time I saw it, blood was literally running down the gutter. Liz, if I could please see these victims in life, because that crime scene, Joe Scott, was horrific. That's kind of crime scene that makes rookies go out and throw up outside. Four incredible, beautiful, vivacious,

look at them, students, their bodies by that time, cold, ripped open, going into rigor. The smell of decomp had probably already started. The sticky blood was coagulating on sheets on the floor throughout the home. And that feeling, that heavy feeling in the air where a dead body is a murdered body is what greeted police. That, Joe Scott Morgan, is what we're talking about as the defense does one cartwheel after the next to get the client off. You're absolutely right, Nancy. And, you know, there's this idea that the blood will tell. And what I meant by that was that the deposition or

the depositing of the blood within the bedrooms and not to mention anywhere else that we might not have an awareness of at this point in time. That's going to be a complex story to tell. And remember, we're already missing the house. It's gone, okay, at this point. So we're relying upon how the scene was documented. I'm sure that they'll do a fantastic job presenting it, but we're absent that already. So their blood, those images that we have are going to be very important to tell the tale. Now, when we look at these questions, the defense has posed on phone calls to 400 of the jury pool. Number nine says, have you read, seen or heard Brian Koberger had followed, followed one of the victims on social media? Well, that tells me right there,

Tara Malik, joining me, high profile lawyer at Smith and Malik in Idaho, that tells me that if that evidence does come in, that Koberger had been trying to hook up with one of the victims or follow them or stalk them, as it has been stated, they're going to try to argue he just followed one of them innocently. So that tells me where they're going with that. Yeah, potentially. I mean, I think that they're trying to, or they may try and explain away if there is some evidence that Koberger either came in contact or was familiar with these folks and put it, as you mentioned, an innocent spin on it. Now, there certainly seems to be, from what we know right now, a lot of evidence to suggest that this was a very calculated crime and that he may have done some research ahead of time before it was actually committed,

familiarity with the location, with perhaps at least one of the individuals. So it certainly gives us some hints as to what the defense may be trying to do or set up for. Although, you know, Ann Taylor did say in court that she did not draft the particular questions. She did approve the topics that were used by the pollster in formulating the questions themselves. Tara, did you just say that the defense lawyer, Ann Taylor, she didn't write the questions, she just approved them? Did I hear that? That's correct. From what her statements were or her arguments were in court to Judge Judge, she indicated that she had not actually written the questions that were used in the poll, but that she had

approved the topics. She also indicated that the pollster was not given any facts from her team or any evidence from her team prior to putting those questions together. I got it, Tara. Yes, I hear your defense of Ann Taylor, and I'm sure she appreciates it. I think that's a line of BS. I really do. To Dr. Leslie Dobson joining us, forensic psychologist at drlesliedobson.com. You say potato, I say potato. So you can't have it both ways. Although Tara Malik, that's why she went so many cases is giving it a valiant try to defend the defense attorney here. You can't say the pollsters who, who actually made these phone calls at the behest of the defense,

they knew nothing about the case. You can't say that. And the defense lawyer didn't make up these questions. Okay. Somebody directed these questions. And if the pollster knew nothing about the case, then how did they come up with the questions? Bottom line, the defense approved these questions. It'd be a cold date in H-E-double-L that they use money for a pollster and they don't approve of the questions. That would be like me sending you, Dr. Leslie, for a polygraph and I don't come up with or help create the questions for the poly. That's not happening. The polygrapher doesn't know what to ask. I have to tell him or her what to ask. And then they put it in the right format. So you can't have it both ways.

Polster had no idea about the case and we didn't write those questions. BS, how could she even say that in front of the judge? Does she think he's an idiot? Because he's not. Yes, I read that a social psychologist was hired to put the questions together. So the information was gained through what he claimed was in the media and readily available. Okay, question to you, Dr. Leslie Dobson. So the defense hires a pollster to call the locals and ask them questions about the facts of the case prior to jury selection. As you have heard the questions today, they touch on very significant parts of the case, critical parts of the case. So do you really believe the defense didn't know what the questions were going to be

after they paid for a pollster? I don't believe it. No. Having worked with many, many attorneys in criminal and civil law, I think the game is on full display right now. Following up with Chris McDonough, who has been to the crime scene, has analyzed the crime scene, and has handled well over 300 homicide investigations. Jump in, Chris. You know, Nancy, I think one of the things that you've pointed out here handled well over 300 homicide investigations. Jump in, Chris. You know, Nancy, I think one of the things that you've pointed out here is, you know, there are 400 potential witnesses. Remember, the defense put that in one of their motions. Well, how would they know there are 400 potential witnesses when, of course, you've got now 400 people that have been polled in the community. I think that's an

interesting correlation that would need some clarity. And I'm concerned that the prosecution kind of fell for it by actually reading those questions in open court and why the judge didn't pull them into in-camera hearing to where the public now, everybody knows about these nine questions around the world. Wait, wait, wait. Are you seriously trying to say with a straight face, Chris McDonough, that anybody watching this coverage hasn't already heard about the Koberger case? No, not at all. In fact, what I'm saying is these nine questions which are being argued, you know, by both the prosecution and the defense are now known to everybody. That's what I'm saying. And that in of itself, you know, kind of goes against the purpose of the law and deadlines and limitations when it suits them, but now are caught red-handed

poisoning the jury pool. In a small jurisdiction, you bring in 400 people and they've all been quizzed already about the case by the defense pollster. Guarantee you that is going to be cause for a change of venue. Why? Why is that significant? Tara Malik, it's significant because when you change a venue, it's much harder on the state. It is. I mean, we're talking about moving witnesses who may be local to that community to a different location to testify, maybe even for multiple days. So it does put the burden on the state, puts the burden on the defense as well, but they don't have to

put on a defense if they don't want to, and they certainly don't have to put on witnesses if they don't want to. The burden is entirely on the state. Now, this defense has taken the step of saying that we do have an alibi, which puts the burden on them to come up with that alibi. But, yeah, it is going to add some complications here that that didn't already exist. And I would note, too, you know, that for the change of venue, it's just pretrial publicity alone is not enough to change venue in a particular case. That's certainly not enough. To Shawna Driscoll joining us for Newsweek. Sean, talking about an alibi, and the defense, of course, has not handed over the alibi yet. They've got to hand over an alibi because the state has a right to question witnesses or evidence that support that alibi,

be it surveillance video, be it the NAV system in Koberger's Elantra. The state has a right to question that alibi. Did you hear what was said that they may bring on corroboration for the alibi that he is driving around at three o'clock, four o'clock, five o'clock in the morning. And hey, Sean, while I've got you, this is a real clue as to where they're headed with these nine questions they sent to all the potential jurors about the car. They asked specifically whether the potential juror has found out or heard about the type, same type of car seen in the neighborhood where the murders occurred. So they're basically tipping us off that the defense is going to be, yeah, there was a white Elantra, but it wasn't him. Right. In fact, part of the prosecution case in their own documents that they filed in court is that they have an FBI expert who's not only an expert on models of cars but even regional variations within those models of

cars who then linked this type of car somewhere between 2011 2014 then expanded that range slightly by looking at the CCTV of slightly slight parts of the. So I think what the defense are really trying to say is yeah, okay, you've got us. His car was around. You have it on CCTV, that type of model of car, but his hobby is to drive around

in the middle of the night in this particular car, which is actually common purpose between defense and prosecution in this case. Okay, hold on. Shawna Driscoll, crime and courts correspondent at Newsweek. Let me ask you a quick question regarding that. Can you have it both ways?

Can you claim, as they apparently are going to do, as evidenced by this question, have you heard the same type of car was spotted in the area? Clearly tipping me off that they're going to argue, yeah, there was a white Elantra, but it wasn't his. Do you have the license plate? No. In fact, it could be an entirely different year, make or model. Okay. They're going to argue it wasn't his car, but is that consistent with the alibi? Yeah, he was out driving around at three or four o'clock that night in the morning. So is it him driving by there by the murder scene or is it not his car? To me, that's inconsistent, but I see them bit by bit, Sean, trying to dismantle the state's case. That's

what this is to them. They're taking each piece of strong evidence and trying to dismantle it. Piece of evidence. His car was spotted at the scene. Hello? At three o'clock in the morning. And then he went back by later that day. They're going to claim that looked like his car, but it wasn't his car. And by the way, he often drives around late at night all alone, which screams to me, freaky dude. Right. I mean, you have to really wonder. You have to take jurors as normal people like all of us who are wondering, okay, where was he?

Well, he was driving around in the same type of model of car that night. And also, how does this then play into jury selection? If the jurors are now, 400 of them have been told all of this, what does the defense now know about those 400 people that hasn't been disclosed yet? Have they written down their names? Do they know their addresses when it comes to jury selection? Do they now know what all of those potential jurors now know about this model of car,

about what they know about the DNA evidence and all sorts of information? To you, Joe Scott Morgan, death investigator, you have been on so many thousands of homicide and death scenes. The longer you wait to go to trial. And I've been there. One of the first cases I had to try, not the first, but one of the first was to retry a case that had been tried when I was back in law school. And I've told you this, Joe Scott. When I went into the evidence room to get the evidence, there was one x-ray. I didn't even know what it was or who it went to, what it had to do with the case and a baseball cap that said, kiss my bass. That was all the evidence we could find from the first trial. I'm serious. And I had to cobble together a case. As time goes on, memories dim, you lose evidence. Witnesses actually die. They had died in those 14 years before I had to retry

that case. So that's the problem with the delay. But what about what it does to the victim's families every day? No justice. It grinds on and on and on. And I still have a vivid memory of hearing this. We had gotten back from church and that particular day and when this case dropped. And now even to this point, as much as I've covered this case with you, Nancy, some of the details are beginning to fade for me. How much more so? Because we do this regularly. But all of the principles, and here's one other interesting little aside here. This is a university environment, Nancy, and we all know what happens at university environments. People move on with their lives. And what I mean by that is you have

kids that may have been witnesses at that particular time. Their life has gone on. As a matter of fact, many of them may have graduated. They're going to have to be coming back to this environment the the landscape has changed we no longer have a home to recall uh what happened that particular night so everything is going to rest upon what is contained within that evidence room that you peripherally mentioned just a second ago and you know that i can tell you hasn't forgotten the people that walked into that structure and they saw that bloodbath and they saw what had happened. And it's just as real to them right now as it was that day. We wait as justice unfolds.

And now we stop to remember American hero Sergeant Mark McIntyre. Just 55, McIntyre shot and killed in the line of duty, Griffin, Georgia. A proud vet of the U.S. Army, dedicated member of the community, leaving behind daughter Kimber, son Parker, fiance Karen, and her sons, American hero Sergeant Mark McIntyre Nancy Grace signing off goodbye friend this is an iHeart podcast