Law&Crime Sidebar - Idaho Student Murders: Top 5 Issues Delaying Bryan Kohberger's Trial

Episode Date: November 7, 2023

Bryan Kohberger remains behind bars, accused of a brutal quadruple stabbing near the University of Idaho nearly one year ago. The Law&Crime Network’s Jesse Weber and evidence expert Jules Epstein scrutinize the biggest hurdles so far delaying the Idaho student murders trial.PLEASE SUPPORT THE SHOW:If you’re ever injured in an accident, you can check out Morgan & Morgan. You can submit a claim in 8 clicks or less without having to leave your couch. To start your claim, visit: https://www.forthepeople.com/LawAndCrimeHOST:Jesse Weber: https://twitter.com/jessecordweberLAW&CRIME SIDEBAR PRODUCTION:YouTube Management - Bobby SzokePodcasting - Sam GoldbergVideo Editing - Michael DeiningerScript Writing - Savannah WilliamsonGuest Booking - Alyssa Fisher & Diane KayeSocial Media Management - Vanessa BeinSTAY UP-TO-DATE WITH THE LAW&CRIME NETWORK:Watch Law&Crime Network on YouTubeTV: https://bit.ly/3td2e3yWhere To Watch Law&Crime Network: https://bit.ly/3akxLK5Sign Up For Law&Crime's Daily Newsletter: https://bit.ly/LawandCrimeNewsletterRead Fascinating Articles From Law&Crime Network: https://bit.ly/3td2IqoLAW&CRIME NETWORK SOCIAL MEDIA:Instagram: https://www.instagram.com/lawandcrime/Twitter: https://twitter.com/LawCrimeNetworkFacebook: https://www.facebook.com/lawandcrimeTwitch: https://www.twitch.tv/lawandcrimenetworkTikTok: https://www.tiktok.com/@lawandcrimeSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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that will keep you on the edge of your seat. Don't let your fears take hold of you as you dive into this addictive series. Love thrillers with a paranormal twist? The entire Oracle trilogy is available on Audible. Listen now on Audible. This was an incredibly thorough and I think multi-agency investigation. As to how the defense is supposed to go through it, I don't know. But in a capital case, I would be awfully uncomfortable not having my team, even if we've divided it up, look at every single thing. And that has to take some time and some money. What is delaying the trial of accused quadruple murderer Brian Coburger? As we near the one-year anniversary of the killings that rocked a small community and captured the attention in the nation,

We bring back on evidence expert Professor Jules Epstein to analyze the top five issues that might be holding up this trial. Welcome to Sidebar, presented by Law and Crime. I'm Jesse Weber. The case of Brian Coburger is one that we've been covering extensively here on Sidebar. This is the man accused of stabbing to death four University of Idaho students in an off-campus rental home back on November 13, 2022. Ethan Chapin, Madison Mogan, Zonnerker Nodal, Haley Gonzalez, they were all brutally killed. This happened in the small town of Moscow, Idaho. Brian Coburger, a doctoral student in criminology at nearby Washington State University,

was apprehended after about six weeks after the killings, arrested at his parents' home in Pennsylvania. He was extradited back to Idaho, officially charged with four counts of first-degree murder and one count of burglary. The state said it does plan to seek the death penalty in the state. this case. Coburger still behind bars awaiting a trial, which, by the way, a trial date that was originally set for October 2nd, but that date has seemed to come and go. We seem no closer to actually taking this thing to a jury. And one of the main questions I keep getting is why is there a delay? What is the holdup in the Brian Coburger trial? Well, to talk more about the, what we see are five big issues. Let me bring in right now. Fan favorite, Jules Epstein, Evidence X,

expert, Edward D. Allbaum, Professor of Law and Director of Advocacy Programs and Clinical Legal Education at Temple University Beasley School of Law. Professor, Jules, great to see you once again. Thanks for coming here on Sidebar. Honored to be here. Let's go through the issues. We're going to start with issue number one. I'm going to lay out each one and then we'll get into it. So the first one is the waiver of a speedy trial. So to set this up first under the United States Constitution, every citizen has the right to a fair and speedy trial. And under Idaho law,

law, a defendant has to go to trial within six months of their arraignment, which for Coburger happened back in May of this year. So unless that would happen, unless a defendant waives that right. And Brian Coburger did just that. He waived his right to a speedy trial. And when he did this, the judge wanted to make sure that Coburger understood exactly what waiving this right meant. It's one of the few times we've actually heard Coburger speak in court.

Well, you heard all that. Mr. Coburger? Yes? Yes. Yes. And is that the case that you want to waive your steep trial rights? Yes. Do you understand that those rights are statutory in Idaho,

also protected by the United States Constitution and Idaho Constitution? Yes. We understand that if you waive, you're waiving really forever in this case. So if we were to push this out, this case, and then something else happens that allows us or requires us to push it out a little farther, you can't claim your right to the speed of trial at that point. Do you understand that? Yes. But have you had enough time to discuss this with Mr. Taylor?

I have. Has anybody pressured you to waive your speedy trial rights? No. Okay, so Jules, how important was it for Brian Koberger and his team to wave his right to a speedy trial? This is critical in a capital case. A death penalty case is really two trials. it's, are you guilty? And if you are, is there information that can be developed that would support saving your life, having the jury vote against the sentence of death? This case has a

tremendous amount of material just on the guilt innocence issues, thousands and thousands of documents and pages and all sorts of things that takes a while for any lawyer to digest. But at the same time they have to be doing a complete life history of mr coleberger and actually the state of the art in representing anyone facing the death penalty is to do a multi-generational study who they are where they came from what might have gone wrong in their backgrounds that can be what went wrong in schooling or in home discipline or mother had an alcohol problem or Lord knows what to develop a picture of the whole person because when you are facing the death penalty, a juror can vote for life for any reason if they find it compelling.

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which is just amazing to think about. And in terms of price, you only pay them if you win. There's no upfront fee. So if you're injured, you want to join the over 3 million people that call them every year, you can submit a claim at www.forthepeople.com slash law and crime or by dialing pound law, that's pound 529 on your phone. Let's expand upon that for a minute and focus on the death penalty. When we talk about the death penalty, there are aggravating factors that would weigh a jury in favor

of choosing him to be put to death. And then there are mitigating factors that might signal, you know, maybe life in prison is the more appropriate punishment. What would be some of the things they're looking into, the defense, because they're the ones who waived, and he waived his right,

for a speedy trial? What are some of the things you think they're doing behind the scenes that are preparing them if he's convicted to fight for his life? Are they interviewing family members, classmates, they looking at his mental health records? What do you think they're looking at right now? Everything you mentioned, and probably a dozen things more, they want to look at school records.

They want to talk to neighbors from where he grew up. They may want to have him assessed by a mental health professional so that they can see, and I'm not saying any of this applies in this case, but this is the type of thorough preparation that should happen in all capital cases, is there a history of psychiatric illness? Is there any organic brain damage? Given that he was fairly high functioning, right? This is a guy who's in college and grad school. I'm not sure what they're going to find there.

But you're always looking for things that either show how this person was harmed or suffer. and conversely, redeeming qualities of this person. So the Lord knows how far and wide that investigation can reach. Well, some of the reporting has indicated that he had a heroin addiction at one point. I imagine that has to play a role and will play a role in this case in terms of not whether he committed the crime, but if he's ultimately convicted his past abuse and the struggles, I imagine that, be a theme in a penalty phase now it depends on what they find because to some people that is what we call mitigating this poor man he had a drug habit to other people that's oh look at him he's also a

druggy right so you have to learn why it happened how it happened how it happened how long it happened if if i became a heroin addict after an industrial accident which gave me so much back pain, that's one thing. If I don't go on a rock and roll parties and become a heroin addict, maybe that's another. Interesting. The answer is possibly. But the first thing is you don't preclude anything. You gather everything.

Right, right. And that's why it might be taking some time. Before we move on to the second issue that might be delaying this case, are you surprised in the sense, not surprised, but. Some people were wondering whether or not he wouldn't waive his right to a speedy trial, hold the prosecution to their burden, force them to go to trial rather quickly, which can sometimes throw a prosecutor off. Did you think that that might have been an option that he considered?

You know, look, you say you have all this evidence. You got to go to trial right now. I don't think you could prove your case. Most lawyers would try and discourage a client from doing that. This is not like the argument in Georgia where some, of the people charged along with Donald Trump said, okay, bring us to trial. This is a capital case. Yeah. And they wouldn't have arrested without a really thorough investigation. There is, as we know and have discussed on other times, a lot of evidence pointing to him and to roll the dice

and say, well, let's see if we can get it quick. Oops, but I'll be unprepared if I lose and have a no death penalty defense, really bad move. Okay, let's move on to the second issue that might be holding up trial proceedings or had held up the ultimate trial. I would say I call this the defense's legal arguments, right? All these kind of pretrial motions, which can take time to brief and argue and decide. One in particular concerns the grand jury indictment. In Idaho, there are two options for bringing a defendant to trial.

A secret grand jury of about 16 to 23 people can listen to the evidence, presented by the prosecution and decide, yes, that person should be bound over for trial, or there can be a preliminary hearing where all that is done in open court, the judge decides that the case goes forward. We know that in May, the Latak County District Court, announced a grand jury indicted Brian Coburger, so a preliminary probable cause hearing was canceled. Now, here's where things get interesting, because Coburger's defense team argued that the indictment should be thrown out.

First, they raised issues of bias and improper evidence was submitted and evidence was withheld. Now, I tell you a lot, we don't know a lot about that because, again, this was a secret grand jury proceeding. What we do know is that they raised this other issue that was briefed and argued, and it was raised. The defense argued that the grand jurors were given an improper instruction at the standard of proof. The grand jurors were instructed to return an indictment if they find probable cause exists, meaning that there are reasonable grounds to support that Koeberger committed the crimes. That's the typical standard we hear about across the country. Pretty low standard.

say you can indict a ham sandwich because the burden's so low. The defense argued that that is not the standard under Idaho law. The defense said that if you look at the actual Idaho statute, grand jury should only return an indictment if they find proof beyond a reasonable doubt. Not only is that standard that's higher than probable cause. It's actually the highest standard we have in criminal law, the highest legal bar. Give everybody a sense of this.

Jay Logsden, an attorney for Coburger, presented the argument to judge John Judge. Yes, again, that's his name, back in October. And the first question that a court has to ask is, what's the plain language, which we argue, what warrants a finding or a conviction by a trial jury has been on a reasonable doubt. And it meant that back in 1887, when the territory took all of these statutes, almost entirely from the state of California, And it means it today. And then we also pointed out that the great state of California, when they had these on their books from back in the 50s,

had already a case in 1962 where they said that it's clearly something more than probable cause, but they weren't too specific about exactly what it. I'm now put in the position of trying to explain why that occurred and why in the year of our Lord of 2023, we are suddenly finding out that that's not quite how things are supposed to be. Why did we forget that we passed all these laws? And I don't have a great answer for that. But nobody's really been digging into this or raising it until this time.

So when the court says, look, the Supreme Court's already got a rule on this, Supreme Court's already ruled on it, it's just not true. They have never ruled that probable causes the basis because there was an argument. argument about it. And they said, no, no, no, you're wrong. That's probable cause. That hasn't it. They ruled a lot of things, but that's not one rule. So while Judge Judge admitted he found the argument interesting, he ended up denying the motion to throw out the indictment so it stands. Now, Jules, I thought arguments like this after, you know, they briefed it, they argued in front of the judge, I thought that that delayed the case. That delayed the trial. Do you agree?

Maybe, and I'm sorry to be equivocal there. No, that's fine. In other words, normally there's an understanding that sometime in that six-month period that your reference, motions will be filed, judges, schedule, periodic status, aids, and we dispense with motions. Given the complexity and seriousness of this case, it may have taken more time to get those motions together to research them. I know in a minute we're going to be talking about the DNA issue. And until the defense received the DNA information, it wasn't right. That's what we call it,

ready for them to file such a motion saying, my God, they use this interesting technique. Now let's do some research so normally we get motions in all sorts of pretrial proceedings and still can reach the projected trial date sometimes things go slower certainly in this case and let me just finish with this point when you are representing a capital defending it is your duty to look at every possible legal issue because at the end of the day, the person's facing death. Look, even when this was argued,

I thought it was a novel argument. I hadn't heard it before. The judge even said, you might find some success at the Supreme Court level to Koeberger's attorney because he thought it was a pretty interesting argument, but obviously there was only so much you could do.

All right, you mentioned DNA. Let's talk about issue number three. This is a holdup. So this other argument from the defense team is about the, I would say, of the DNA match that investigators allegedly made to K-Berker, give everybody background here.

So according to the probable cause affidavit, police found the sheath of a K-bar knife next to the body of one of the victims. The FBI constructed a family tree through something called investigative genetic genealogy or IGG, and they do this typically through online platforms like 23 and me and Ancestry.com. Well, the FBI did that, and then they sent a tip to local law enforcement about Brian Coburger. Now, originally, the DNA found on the knife was compared to trash that was recovered from outside the Coburger home, and that's when they found a match of the DNA to Coburger's father. After Coburger was arrested, they took a cheek swab, and now court documents reveal that

the DNA recovered from that knife is almost an identical match to Brian Coburger. Now, the defense wants to know specific details about how law enforcement used IGG to identify Koberger as their suspect. And the judge recently agreed to do an in-camera review of the IGG evidence. The judge will look over all of it from the prosecutor's office and the FBI and decide what needs to be turned over to the defense. The judge has set a December 1st deadline to get all the DNA evidence in hand. You see, prosecutors blame the FBI and the private lab for the delay because of the process of getting all the reports. So, Jules, with all that in mind, what do you think is going on here? Because it's my understanding.

The prosecutors here are saying they don't intend to show the IGG results at trial and the information wasn't used to obtain any warrants in the case, but the judge is kind of leaning towards the defense that it might be an issue and maybe that's what's taking up some time here. So I read part of the judge's opinion this morning and the judge said actually may be relevant to trial, maybe not relevant, we'll cross that bridge another time. There's enough here that I will look at it to see if there's anything that might be pertinent and that also that disclosure would not violate the privacy interests of third parties. If I were the defense lawyers, I think I'd want it for a couple of reasons. One is, did it have any alternate suspects in there who they discarded?

Now, given all the other ties to this defendant, whether that's a loose. I don't want to say, but that's being a competent or thorough defense attorney to check. The second thing is if there is some flaw in the investigation, sometimes that's like grabbing the thread on the back of a sweater and you pull it and the whole sweater unravels. The United States Supreme Court has said in one decision that it's a fair game, for a defense to attack the quality or thoroughness of an investigation. At the end of the day, I'm not suggesting either of those will bear fruit. But I think that's what folks would be looking for.

Let's break that down a little bit more. So obviously, you mentioned the privacy issues because you don't want to reveal the identities of Koeberger's relatives. You might need a protective order here. It also sounds like this review is going to happen behind the scenes and the judge's chambers so I think a lot of this is going to be kept out of the public eye one of the things that I think complicates it though right is that the prosecution they claim they don't have these FBI records in creating that family tree and so when we talk about the prosecution

handing over materials to the defensive it's not something they have or they're using in their case um you know I thought that was interesting now you mentioned that I think you mentioned that the judge cited a recent case where they said that records that are held by any law enforcement agency that was involved in the prosecution of a defendant, that's part of the discovery in the case, even if the prosecution doesn't have it. FBI was working with local and state law enforcement here. So I think that's a part of it that complicates it too, right? I mean, should the prosecution have to turn over something that they technically don't have?

So there are two issues here. One is I don't know the state law and how broad that is on discovery. obligations. Under the United States Constitution and what we call the Brady principle, and that means very simply that if the prosecution has anything in its possession, and that includes the police it has worked with, that might in some way make it less likely that person is guilty or indicate maybe something that would reduce the severity of the charge or go to sentencing, they have to turn it over, and get it from law enforcement agencies they've worked cooperatively with. I'm not sure yet if this material is Brady material,

because again, Brady materials, braided material only if it tends to help the defendant. But the judge may be applying that notion, Hey, you brought the FBI in. They cooperated with you. Pick up the phone and call them. Now, they may, I think one of the problems is the FBI may not have preserved all their notes. But that's separate from, okay, well, send us what you have.

Look. And again, I'm sorry, the only person who's going to look at it literally is the judge. In that in-camera, it's going to be the judge alone or the judge with their court clerks. researchers, the prosecutor in the defense, as I understand, it won't be in there. And then the judge is going to say, I find nothing or I find something or my goodness, you have to get it all. Yeah. And that could take a little bit of time to figure out what to turn over and how it's going

to be used. So that was issue number three. This is issue number four. You talked about a little bit already. There's so much evidence. In a filing back in May, the prosecution told the defense it was handing over 10,000 pages of reports and written materials. more than 10,000 photographs, 9,200 tips, 51 terabytes of video, audio, and digital materials.

That seems like a lot to go over. First of all, Jules, are you surprised there is so much here? And how on earth is the defense going to review all this? So I'm not surprised because this was an incredibly thorough and I think multi-agency investigation. As to how the defense is supposed to go through it, I don't know. And this is, so this is obviously akin to the argument Donald Trump's lawyers are making, right? You want us to go to trial in a case with three million pages of documents, whatever one thing's pro or con about Donald Trump.

There should be enough opportunity for anyone's lawyers to go through whatever there is to go through. there are certain artificial intelligence tools which can at least apparently help separate some of the wheat from the chaff but in a capital case I would be awfully uncomfortable not having my team even if we've divided it up look at every single thing and that has to take some time and some money it does and what we know that the amount of evidence was one of the reasons that Koberger's defense team said they needed more time to prepare his alibi defense, which I wanted to ask you about because back in August, the defense filed this alibi that Koberger had a habit of going for drives alone, including at night.

It's interesting because it would explain away the movements of his car and his cell phone activity on the night of the killings. And are there any witnesses who can definitively say where Koberger was exactly? So it seems that that volume of material they're trying to use maybe to show this alibi? So the word alibi is pretty interesting, and this will vary from state to state. Normally, a defendant doesn't have to say up front, hey, here's my defense. But because alibi to respond to it would take some investigation by the prosecution, the U.S. Supreme Court has said it's constitutional to say, if you're going to say alibi,

you have to do some disclosure. Now, if, and the other thing about alibi is, alibi means it could have been around the corner. It doesn't have to be I was across the state. So to the extent that they want to defend by saying he was driving on nearby roads but didn't turn into that home, technically that sounds like an alibi. Now you use the word habit. There are two ways that this guy can prove I always drive this way. One is to testify. The other is to put on a bunch of people who say I was his roommate or, you know, I dated them or something.

And it struck me as crazy. Every third night he'd go out for this long ride. We call that habit evidence if that's what they're trying to build up. And certainly they don't want to put on an alibi. an alibi and then have the rug pulled out on from under them by saying wutes you know page 9333,212 has you at a traffic signal at a different part of the state right um and obviously no lawyer ethically can do that and if you came upon that you'd also want to be in a place to sit down with your client and say we need to talk so yeah they they need to figure out how they're

they're going to prepare that. I was so interesting. Yeah, it's either him on the stand or some witnesses or some sort of other evidence that he goes on these kind of drives. All right, issue number five, and I'm sure there's a lot of other reasons why there's delays, you know, people get sick, things like that. But this is what we thought were the big five issues. So this is issue number five. Well, now, and this has been developing over just the past couple of weeks, FBI, the FBI investigators have been back at the home on King Road where the killings took place, which the owner donated the house to the University of Idaho.

The school had been planning to demolish the house. But this has been put on hold as investigators went back to the property because they're now preparing visual displays to be used during the trial. Photos, videos, even audio exhibits, as well as a physical model of the property. I imagine this will all help jurors at the eventual trial to understand what the home looked like, the layout. But putting these models and exhibits together,

it takes time. And family members of the victims have been against the plan demolition. They have said that this is a key piece of evidence. What do you think, Jules? I think that it's really important that every juror see what we describe the same way. If I were to describe my house right now and say, well, I have a back patio. Oh, and I say patio, you may think cement and somebody else may think flagstone, and whether it's done, with a video or a mock up or something if someone is testifying one of the survivors says well I was on the second floor rear no one will know what that means without some diagram or something and we're moving from the

two-dimensional just the flat diagram to videos and photographs actually there's been a little bit published about starting to imagine what is it, VR and AR to go and create artificial reality mock-ups of a crime scene that people could walk through. I teach a lot about communication and making sure a jury sees what I know something looks like is really hard. And so to the extent that the prosecutor, are doing this because they think it will help tell their story in a coherent way and prove their case, you know, good for them. And whether it's going to be overkill and they really need it.

We'll see when the trial happens. And it takes time to put this stuff together. So, so, I mean, these are five what we thought were issues, big issues that are delaying the case. I mean, you and I could talk back and forth about when we actually think this trial will happen. And real quick, when do you think it actually is going to happen? Part of that depends on the patience of the judge. Right.

Part of that depends on if I were the judge, I would be asking the defense and the prosecution for periodic updates. How are you doing? What do you think you need going forward? So that at some point I could get a sense of a realistic timeline. From everything you're describing, spring or next summer, or maybe next fall, which is not unusual in a capital case. No, I mean, anybody who files law and crime knows that when we cover these trials,

the actual date of the crime and the actual date of the trial can be years away from one another. And as we just went through, there's a lot of complicating factors. Professor Jules Epstein, so good seeing you. Thank you so much. Appreciate it, sir. Thanks for all you do. All right, everybody. That is all we have for you right now here on Side. Bar, thank you so much for joining us. As always, please subscribe on Apple Podcasts, Spotify, YouTube, wherever you get your podcast. I'm Jesse Weber. Speak to you next time.

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