Crime Stories with Nancy Grace - Suspect Bryan Kohberger Defense 'Torment' Surviving Murder Victim

Episode Date: April 26, 2023

Bryan Kohberger's defense team is trying to compel one of the two women who survived mass murder in an Idaho home to testify.  Kohberger's attorneys have asked a Nevada court for Bethany Funke to tra...vel to Idaho and testify as a witness for Kohberger. Funke does not want to appear and is fighting the subpoena through her own lawyer.  According to the defense, Funke has information that could prove Kohberger's innocence. Funke's attorney filed a motion, arguing that there is "no further information or detail pertaining to the substance of the testimony, its materiality, or the alleged exculpatory information of Ms. Funke or why it would be entertained at preliminary hearing.” Funke’s lawyer also argues that Nevada law requires a hearing before the subpoena could be issued. There was no hearing.   As of now, the extent of Funke's testimony and whether it could help Kohberger is not known.   Joining Nancy Grace Today: Dale Carson- High Profile Criminal Defense Attorney (Jacksonville), Former FBI Agent & Former Police Officer (Miami-Dade County); Author: "Arrest-Proof Yoursel; Twitter: @DaleCarsonLaw  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’, ColdCaseFoundation.org Sheryl McCollum - Cold Case Investigative Research Institute Founder; Host of  "Zone 7;" Twitter: @ColdCaseTips   Dr. Michelle DuPre - Former Forensic Pathologist, Forensic Consultant, Medical Examiner & Detective: Lexington County Sheriff's Department; Author: "Homicide Investigation Field Guide" & "Investigating Child Abuse Field Guide,"  Forensic Consultant Caitlyn Becker - Senior Reporter for Dailymail.com; Twitter: @caitlynbecker See omnystudio.com/listener for privacy information.

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Starting point is 00:00:00 This is an iHeart Podcast. Crime Stories with Nancy Grace. Bombshell. In the last hours in the case against Brian Koberger, charged in the murder of four beautiful Idaho University students, we learn that one of the crime victims who survived, roommate Bethany Funk, is fighting tooth and nail a subpoena delivered by the defense,
Starting point is 00:00:44 Brian Koberger's lawyer, trying to force Funk from her home in Reno all the way back to Moscow, Idaho, to testify for Brian Koberger. 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 cut 378, our friends at ABC. One of two survivors of the Idaho College murders fighting back after suspect Brian Koberger's legal team subpoenaed her to testify. The survivor's attorney calling the subpoena improper, saying Koberger's legal team has no authority to summon her for the preliminary hearing. Koberger is charged with murdering four of her friends in the early morning hours of November 13th. The victims found on the second and third floor of the home, while she was on the first. And now, in court documents, Koberger's team claiming the survivor may be a material witness for his case
Starting point is 00:01:44 and could possibly provide exculpatory information. I've never heard a bigger crock of BS in my life. That's a technical legal term. Joining me, an all-star panel. But first, let's go to Dale Carson, high-profile lawyer out of Jacksonville, former FBI agent. Dale Carson, this is total BS. Because this is a preliminary hearing that's going to be held June 26. It is not a jury trial. Therefore, this is just the state putting up a
Starting point is 00:02:14 bare bones case. The defense doesn't even have to reply. This is a phishing expedition to force Bethany out of home, away from home, and back to Idaho. It's actually legal terrorism on the crime victim. Well, that's exactly right, Nancy. A preliminary hearing is used typically by the defense to learn what cards the state is holding.
Starting point is 00:02:39 And it's a mechanism for doing that. And oddly enough, in Idaho, there is a grand jury that can simply indict him. And yet they have allowed this preliminary hearing to proceed and to try to bring somebody from one state to another. Well, it's against the U.S. Constitution, but there is a uniform act that allows this transfer, but when that transfer occurs, in other words, to bring somebody from another state to this state in a criminal matter, it doesn't cover preliminary hearings. And more importantly, if you're going to do that, you have to explain to the court, the state court where she lives, why you got to have that witness come to a court in Idaho. And that requires explicit information, not just, I believe it will be something that will provide evidence for my client. Guys, we are talking about the latest legal bombshell in the case of the four students murdered in Idaho. At this hour, the state is still amassing evidence against prime suspect and defendant Brian Koberger.
Starting point is 00:03:49 He has yet to enter a plea. Again, with me, an all-star panel to make sense of what we know right now. Straight out to Caitlin Becker, senior investigative reporter for DailyMail.com. Caitlin, explain what's happening right now. Why is the defense terrorizing one of the surviving victims? They keep saying she has material information that could exonerate Koberger, but the reality is her police report is still under seal. Nobody knows what her report says. It was Dylan Mortensen that says she saw this figure clad in black wearing a face mask, not Bethany Funk.
Starting point is 00:04:26 So they don't even know what her police report says. Yeah, they're trying to oust her from her family home and make her drive 11 hours to testify in Koberger's defense at a preliminary hearing where the defense doesn't even put up a case. That's exactly right, Nancy. And up until this point, because as you said, Bethany's police report is still under seal. So I don't believe Kohlberger's team. I have no idea if they've even seen it. But what his attorney said in the paperwork
Starting point is 00:04:57 or the subpoena is like you said, they believe she has material information that could be potentially exculpatory. They specifically want her to testify about what she saw and heard that night and insinuate that this could potentially clear his name. Now, up until this point, we have all believed that Bethany was found asleep and slept through the whole ordeal. So the only thing that I can speculate is that maybe Brian Koberker himself knows something that she knows from that night would put him in my mind at the scene of the crime. So I don't know how
Starting point is 00:05:33 that would help. At the very best, at the very best, she may be able to corroborate something Dylan Mortensen told her, which would be hearsay and disallowable in court. By all accounts, we believe this surviving witness slept through the entire murder. Guys, what's happening? Take a listen to Hour Cut 392, our friends, at Live Now from Fox. It sounds like the defense believes that the surviving roommate has information which tends to exculpate or indicate
Starting point is 00:06:11 that perhaps Koberger is not the correct suspect. And they want to call him to have the judge evaluate this testimony in consideration for how the case should move forward. I'm not sure there's any real legal way that she can prevent the defense from subpoenaing her and calling her as a witness. It may be that the court instead takes steps to protect what she has to say and her face during the testimony. That's completely
Starting point is 00:06:39 bass-ackwards. That is true for a jury trial. That is not true for a preliminary hearing. Let me explain. A preliminary hearing is very simply a bare bones hearing where the state, the prosecution, puts up just enough evidence for the judge to say, oh, you know what? There's a question of fact. DNA was found at the scene on a knife sheath. It matches Brian Koberger. Koberger is pled not guilty, so that's a question of fact. Is the DNA real? Has it been contaminated? Is Koberger not guilty? That's a question for a jury.
Starting point is 00:07:19 Therefore, I will send this on to Superior Court, and there will be a jury trial. That's what a preliminary is. It can be replaced in some jurisdictions, not necessarily Idaho, with a grand jury where the defense is not even present. It's just a charging mechanism. This is not a finding of guilt or innocence. And let me go straight out to Cheryl McCollum, director and founder of the Cold Case Research Institute and star of a hit podcast, Zone 7. Cheryl McCollum, I've dealt with so many crime victims. Do you know what it does to them to have to testify and face the defendant on the stand?
Starting point is 00:08:01 Absolutely. Let me tell you something. How do you invoke reasonable doubt to the court of public opinion before a trial or before you call your first witness? They just did it. This is a stunt. This is an absolute risky move on their part. And I think it's going to blow up in their face. Well, I've got the motion right here in front of me. And the first thing I'd like to point out is that it is full of errors. They can't even spell the victim's name correctly. Throughout, they misspell her name.
Starting point is 00:08:39 So that's not giving me a whole lot of confidence in the defense attorney. And not only that, back to you, Dale Carson. Dale Carson is joining us, defense attorney out of Jacksonville. Dale, they can't even spell the victim's name correctly, number one. Number two, in order to make a subpoena like this work, it's an out-of-jurisdiction subpoena, you have to go through a process called domestication. The Idaho judge has to send the subpoena or allow it to be sent to Reno, Nevada. There has to be a hearing to prove Bethany Funk has material witness testimony. None of that has been done. Also, Dale Carson, I've researched the law
Starting point is 00:09:28 in both Idaho and Nevada. There is no legal precedent to support a witness in a criminal matter returning all the way to another jurisdiction for a preliminary hearing, not a jury trial, for the defense. That's not a thing. No, you're absolutely right. And, you know, it is unbelievable to me, frankly, that probable cause was already determined when the arrest warrant was issued for Koberger. That's the probable cause warrant. And he was arrested. And now we're having another probable cause hearing. I don't understand the system that would allow that when a grand jury can secretly indict him and avoid all of this.
Starting point is 00:10:13 And it's not a choice that the defense can make. And they were supposed to make it candidly within 14 days. And that didn't happen. So something's going on here. And it's an effort as Cheryl Magic Cheryl says to divert attention from the realities and the realities are that DNA is connected with the crime. It demonstrates conclusively in my mind that he was certainly there and likely participated in it given all the other factors his effort to, his effort to hide evidence, to clean his car,
Starting point is 00:10:46 to do all of those things are consistent with someone who's guilty of the crime. I want to go to Chris McDonough, guys, director of the Cold Case Foundation, former homicide detective, host of a YouTube channel, The Interview Room. Chris McDonough, you have been over and over and over all accessible areas of the scene.
Starting point is 00:11:27 This is a stunt. This is a stunt to terrorize and torture one of the remaining surviving victims from that night. You understand the bloody, horrific crime scene left behind and now this tormenting a crime victim and doing it through legal means I I don't know that much about this lawyer I've got a brief right here Ann C Taylor public defender I understood she was representing family of one of the victims and then dumped them to represent Brian Koberger. I guess it was more money and more PR for her. But that said, her motion, she can't even spell the victim's name correctly. And this is a stunt to terrorize this victim. What do you make of it after what you know of that crime scene? One thousand percent that this is a stunt, Nancy, and I agree with Dale and Cheryl that this is trying to pull a motions utilized to put this conversation into the public's ear around the gag order.
Starting point is 00:12:52 So I also think this is a slap in the face to the judge. Well, the judge signed it. The judge signed it. So that makes me question the judge as well, because the hearing that was required under the law was not held. Here is the order that the judge signed. She didn't just receive it. She signed off on the subpoena to force Bethany Funk back to the scene to testify for the defense. And I'm stunned. What more do we know caitlin becker well we know
Starting point is 00:13:27 that bethany funk and her attorneys are don't want to do this megan marshall that's the judge's name megan marshall i wonder how long she's been on the bench go ahead i'm sorry caitlin uh no problem we we know that bethany's own attorneys are trying to fight this based on essentially a lot of the things that you guys have already said. They're trying to quash this. Hey, you just said something really important, Caitlin Becker from Daily Mail, and thank you, her own attorneys. She had to go out and pay good money, probably a lot of money, to a lawyer to fight this
Starting point is 00:14:03 subpoena, this out-of-state subpoena. I'm thinking through everything. You know, Dr. Michelle Dupree, forensic pathologist, medical examiner, lucky for us detective, author of Homicide Investigation Field Guide, Dr. Dupree. let's think this through. Let's go back to the early morning that Bethany Funk and Dylan Mortensen wake up. Everything's quiet in the house. Somebody's been calling and they can out and tried to get the roommates and they come upon the crime scene. Four roommates repeatedly stabbed and they see their friends dead. They are probably dealing with survivor's guilt, which I'm going to address with Dr. Joni Johnston.
Starting point is 00:15:08 But explain, Dr. Dupree, what these two girls very likely woke up to that morning. Nancy, a stabbing or sharp horse injury crime scene is always very traumatic and very bloody. And I'm sure that this was a terrifying event, finding their friends, someone that they knew so closely in this kind of a state. It would have been devastating. Can you describe the wounds that these four victims suffered, these young, beautiful University of Idaho victims? Yes, most of them were stab wounds. There were some what we call slash wounds. One of the victims, I believe, had defensive wounds even. And again, sharp force injuries
Starting point is 00:15:53 are painful. There is a lot of blood. It just would have been a horrific scene to walk in on for anybody. I think even the investigators had talked about what a horrific scene this was. And so to find someone you know and friends, it just would have been devastating to these young adults. Chris McDonough, Andy L. Carson, Cheryl McCollum also, I want you to weigh in on how different a murder scene is in real life than it is on TV. Even slasher movies. It's, you know, Cheryl McCollum, you and I have been to a lot of homicide scenes together.
Starting point is 00:16:34 And I have seen grown men walk outside and vomit. And that's after a shooting, a single shot murder. Much less were four young people that these two witnesses know intimately. They're very dear friends. They live together. Go in and they have been slashed dead. Multiple stab wounds. Explain, Cheryl, how different in real life is it from what people are conditioned to believe from movies and TV?
Starting point is 00:17:05 Well, let's just talk facts. Eyewitnesses oftentimes get critical things wrong because of the trauma, the shock, the just denial of what is actually occurring. So when you combine all of those things, just massive fear, all of us have experienced, even in a fleeting second, being so scared. We like, we can hear home and somebody pops up you didn't know was there and kind of scares you for a split second. Your whole body reacts. Your entire body just jerks away of what you think could be danger. What they experienced in that moment, Nancy, is so unbelievable. I don't know that they have processed it completely now. And that's why I'm telling you, you can call Ms. Funk if you want to. But if she were my client, it'd be the biggest
Starting point is 00:17:58 mistake you ever made if I was a lawyer. You are darn right. In the famous words we've heard so many times, be careful what you ask, my dear, for you will surely get it. Amen. I think the defense is banking on the fact they believe that Dylan Mortensen and Bethany Funk not only saw the killer, but cannot identify Brian Koberger as the killer.
Starting point is 00:18:22 The first thing I would do when that happened, as the prosecutor, would have him stand would do when that happened, as a prosecutor, would have him stand up and walk in front of the jury and stand up and turn to the side, approach the victim on the stand and let her say, yeah, that's about the right size. That's the right size. Those are the right eyebrows. That's the right hair. That's the right eyebrows that's the right hair that's the right skin tone yeah that looks like him of course he had on a face mask but he fits the description of the killer oh man i would put it right up their tailpipe you asked about the crime scene is this dale carson go ahead it is the the evisceration of a of an individual victim is substantial there's a smell in the air that you can never shake out
Starting point is 00:19:08 of your head later. And you remember it years and years later. And there's blood everywhere on the floor. You end up walking in it in order to check the victim to determine whether or not they're still alive. And people don't see dead bodies regularly not in that condition so there's a process of denial you go through you think you might be in a dream to see that and victims often report the fact that they are physically ill after they see things like that and this isn't one victim this is four victims so you have have a magnification exponentially of the pain and suffering. And remember this really important for the jury. These individuals in evisceration killings, they suffer. There's a pain. There's a it's dark. Suddenly someone comes out of the dark and does this. You're stunned. All of those factors indicate that it's a cruel killing, which in Florida, at least, adds to the impact of the charge against someone.
Starting point is 00:20:15 So he's going to get charged as seriously. And when the jury hears how he affected the killings, it's going to magnify his sentence. You know, Chris McDonough, I told this story yesterday, and I don't like telling it because it's painful, but I did not want to see my fiance in the casket. I didn't want to remember him that way. And of course, they had done all they could to cover up the bullet wounds to his head, his neck, and his back. But at a distance, when I first walked into the funeral home, instinct made me look into the area where Keith's body was at the front of the chapel. And I only saw a sliver, a profile of his face above the casket edge, and I passed out.
Starting point is 00:21:09 I remember it like it was yesterday, and I don't like remembering it. So I can only imagine, Chris McDonough, what these two girls saw when they saw their friends, stabbed multiple times. Sliced, stabbed, dead from bleeding out. The smell hanging in the air, it's awful. The blood now sticky on the floor. I mean, that's something you never forget. And there's nothing else like seeing and smelling that, Chris McDonough. Nancy, I mean, just your comments alone are so powerful to listen to.
Starting point is 00:21:58 And it's one of these events where all of us in this panel this morning discussing this always remembers that moment where you get the information overload, right? And everything slows down. It's almost as if you're living in the twilight zone for a little bit and now superimpose that on a child who's a young girl who's at college and going up those stairs and running into you know all of this mass evil the the behavior that they're witnessing you know the, the cast off from the, from the knife, the, the victims may or may not, uh, you know, positioning in certain places and thinking to themselves, you know, where am I? What am I? And I can, I can assure you because I've been in that scenario so many times,
Starting point is 00:23:00 the worst part of homicide investigation is that initial observation of that crime scene. And we heard it from the chief of the Moscow officers that were first on scene. They were seeking counseling post that witnessing. Speaking of what victims, by the way, you're completely right to both of you, Dale and Chris, and also Cheryl, of course. Guys, I want you to hear it from the horse's mouth. I want you to hear our friend, our colleague, Mark Klass, a victims' rights crusader, after the kidnap, rape, and murder of his little
Starting point is 00:23:48 girl, Polly, he has devoted his life to finding missing children and solving unsolved homicides. Take a listen to our cut 389. This is a young lady, and I'm sure she's a resilient young lady and this will obviously be a setback to her psychologically and spiritually. There's no question about that. However, with the right moves, she should be able to recover her life. And when I say the right moves, I'm suggesting that she probably could use some expert counseling. And the trick there is finding the right person or a counselor, the person that's had the moves and the person that can help move her from being a traumatized victim who's been asked to turn on her friends to the productive and positive thinking individual that she was before this whole horrendous affair started. And more from Mark Klass in our Cut 391.
Starting point is 00:25:04 Yesterday I spoke to one of the girls that was with Polly when she was kidnapped And more from Mark Klass in our Cut 391. And she said that it was really just kind of an odd situation, that she didn't want to look at him, but she did want to see him. So she kept stealing glances at him as she was testifying, and that in the final analysis, she said he was looking down the entire time. So whereas this guy is able to come into a room and terrorize little girls, once he's surrounded in a different kind of a situation, once it's in a different kind of a situation, a courtroom situation, he didn't even have the ability to look up at the little girl who was so courageously testifying in his presence against him. I had the same experience when I came off the witness stand in my fiance Keith's murder trial. I walked past the defense attorney's table and they all looked down. And then I looked at the defendant who also looked down.
Starting point is 00:26:23 Actually, I looked at him first. They couldn't even look up at me. I want to go to a special guest joining us, Dr. Joni Johnston, forensic psychologist. Also, she's the author of Serial Killers, 101 Questions True Crime Fans Ask. And you can find her at drjonijohnston.com. Dr. Joni, thank you for being with us happy to question to you what is survivor's guilt survivor's guilt is kind of an irrational feeling and i say irrational because it almost invariably happens when somebody had no control over a situation and survived something that a friend or a loved one didn't.
Starting point is 00:27:05 And there's just this constant sense of guilt and second guessing and pain around, you know, why did I get to survive? Why did my friend or my loved one not? Why didn't I help? Why couldn't I do something? Why didn't I do something? And it can be very, very, you know, complicating in terms of getting past that, in addition to the trauma of all the things you've described and your other panel members have described, just coming on a scene like that. So it just can be so complicating. And you know what else, Dr. Joni Johnston, and it's Johnston with a T. Dr. Joni, these feelings follow you for the rest of your life. Now, I agree with everything Mark Klyce said about getting counseling for this girl, Bethany Funk, and roommate Dylan Mortensen.
Starting point is 00:27:56 But the truth is, and let me know when I get Cheryl McCollum back because she can vouch for this. The truth is that as a crime victim, you are haunted from that point forward. It really changes who you are. I've had people tell me, which I don't understand, that my personality before case murder is entirely different than what it is now. I don't know what they're talking about, but it changes you. It changes the way you see the world, doctor. I completely agree with you, Nancy. There is no way anyone who goes through an experience like you've gone through or these young surviving women have gone through who are going to be the same. It is a life-changing event. It doesn't mean your life is over, that you can't be happy again,
Starting point is 00:28:45 that you can't be a productive member of society, that you can't find a way to use all that pain for good. But they are not going to be the same young women they were before that. Crime Stories with Nancy Grace. Cheryl McCollum is with me, Cold Case Research Institute founder and director. You can find her at coldcasecrimes.org or on her brand new podcast, Zone 7. Cheryl, we have both dealt with so many violent crime victims and what they go through in the aftermath of the crime, if they live to tell it.
Starting point is 00:29:36 And these two girls, I mean, remember, Cheryl, they kept the fact that Dylan Mortensen had actually seen the killer a secret. Cops did for so long until they could arrest Koberger and put him in jail so he would not be tempted to come back and murder her and Bethany Funk. That's what we're talking about. And now they want this girl in some ridiculous PR stunt for some fishing
Starting point is 00:30:07 expedition to find out what she may or may not know to come all the way back essentially to the scene of the crime. You know, I think about Dylan a lot in that first statement that she made when she said she thought what she was hearing was Kaylee playing with her dog Murphy. And then afterwards, she had the realization of what she was actually hearing were her friends being murdered. She heard it. She will never get that out of her head.
Starting point is 00:30:37 And Nancy, not only is this stunt going to blow up in their face, they have not counted on mamas and daddies and friends. Those are the jurors that they are now, I think, ticking off before they've ever been slated to say it. And when you think of just this instinct to protect, once you're a mama, everything else goes out the window. And I was in the grocery store the other day, and I heard this little voice call for mama, mama. Now, you know, I've got two 20-somethings
Starting point is 00:31:12 now that are my children. But I looked almost instinctively, like, who needs me? Who needs help? That wasn't my child, but I couldn't help myself. Oh, Cheryl, I'm telling you, I had to fly to Corpus Christi the other day to speak to help support a women's shelter at a group called Purple Door. There was a child on the plane. And this screaming, that doesn't bother me at all on a plane because I empathize with those parents every time that child cried literally my skin it crawled because i felt that you felt an instinct to go help the baby right and that's what i'm talking about we have an instinct to protect dylan and bethany period you know another thing and let me throw this to caitlin becker oh caitlin i'm going to circle back to you about the two surviving victims getting those tattoos in honor of the four slain students.
Starting point is 00:32:10 Dr. Joni Johnson joining me, forensic psychologist. It's not just the survivor's guilt in the sense that I lived and they didn't. But also, apparently Dylan Mortensen heard, she didn't realize what she was hearing, but heard the murders. And she saw, who I believe to be Coburger, at the time, you know, 4 o'clock in the morning, she probably had a couple of drinks. She's like, oh, whatever, and went back to sleep. More guilt. She couldn't, didn't know what had happened. She didn't understand that she should call 911 immediately.
Starting point is 00:32:47 But that's going to go with her. That sack of rocks on her back. From now on, what if I had called earlier? Could I have saved their lives? What a, would a, could a, should a, is going to haunt her like a demon from hell. It is going to be difficult. And obviously when the situations like this come up where people are trying to get her to testify, you know, it's just going to prolong that. And I agree with everybody on this panel
Starting point is 00:33:13 that it is difficult for me to see how this is going to help the defense, because it's not just the fact, I mean, I've got two girls in college, so it is very close to me. But to think about somebody going through that, an innocent college student, and then experiencing that, losing her friends, hearing all of that, seeing all of that, and now asking her to testify and the defense calling her, is just, it's kind of hard to get your head around. You know, when you said you had two children and Cheryl said about her children, I want to just pause just briefly and thank everyone that commented and prayed for my son who had a horrible blow to the head at school at track practice accident. And he has been suffering from a stage a level three concussion and I've
Starting point is 00:34:08 been really overwhelmed by all the love and the prayers that have poured out from all of you and I just want to say thank you and I'm thinking about this girl's parents and the thought my dad and mom drove me to Keith's murder trial an hour and a half every morning of the trial and drove me home. And I wonder what they were going through as I sat in the back seat and cried. This stunt, Caitlin Becker, joining me, senior reporter at DailyMail.com, is so twisted and cruel. But the defense may believe they've got a leg to stand on take a listen our cut 379 our friends at gma it seems as though the defense believes that she has information that would directly contradict his uh being the person who they believe at the scene of the crime
Starting point is 00:35:01 the defense saying their criminal investigator believes the survivor told police things she heard and things she saw and could offer details that cannot be provided by any other witness. She might have information as to what the person looked like. It might be height. It could be any information that would take him out of the prime line as a suspect. And that right there, Dale Carson, is a legal problem for the defense. She might have information. When you out-of-state subpoena someone back to the scene of the crime, to that jurisdiction, it's because that witness has vital and material information. Not because they might.
Starting point is 00:35:42 She may. She might. Maybe. No. That may. She might. Maybe. No, that is a legal threshold. And certainly not for a preliminary hearing. The Nevada court is going to hear precisely, and it's not subject to the gag order. They're going to hear precisely what it is that they think she can provide. It may be simply a timeline issue or her remembrance contrasts some way with the other survivor's remembrance of what happened.
Starting point is 00:36:13 But ultimately, we're going to find out whether or not there's teeth to the allegation that there's something exculpatory. And what exculpatory means is that he's not the suspect and the actual committer of the crime. And that's not supported by any of the extrinsic evidence that we're aware of today. Caitlin Becker with me. Nancy.
Starting point is 00:36:36 Who's that? Cheryl. Jump in. This stunt has now turned into a joke. The fact that you think that child has got such a hell of a testimony that she's going to be able to undo that he had a victim's ID in his possession, that he's got DNA on the knife, the sheath of the knife, all the cell phone pings, that his freaking car's on video. Well, honey, Ms. Funk, that must be some unbelievable testimony. And let me just say this. I do not care what they think that child could possibly say to undo this.
Starting point is 00:37:09 In the beginning, she had no idea what she was seeing or hearing. Even if she described a man that turned out to be the DoorDash driver. This is a joke. Well, again, that was Dylan Mortensen, not Bethany Fonke, who they're trying to subpoena. But we don't know what she said. Exactly. We don't know because it's sealed. And a preliminary hearing is just a bare-bones hearing to find out if there's enough evidence for it to go to trial. It's a safety precaution buffer for the defense. Caitlin Becker, very quickly, is it true that the surviving victims got tattoos
Starting point is 00:37:47 in honor of the murdered victims? They did, Nancy. They both got matching tattoos of angel wings, which is the same tattoo that one of the victims, Maddie Mogan, had on her arm. They got the same angel wings and in between them, the initials of all four victims. Well, I predict this legal stunt is going to backfire. We wait as justice unfolds. Goodbye, friend. This is an iHeart Podcast.

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