Law&Crime Sidebar - O.J. Simpson Lawyer Breaks Down Best Defense for Idaho Murders Suspect Bryan Kohberger

Episode Date: January 10, 2023

O.J. Simpson "dream team" lawyer Alan Dershowitz breaks down what Idaho student murders suspect Bryan Kohberger's defense team should focus on in their case. The Law&Crime Network's Angenette Levy talks with Dershowitz about the "bad facts" that can be used in court to defend Kohberger against the charges. LAW&CRIME SIDEBAR PRODUCTION:YouTube Management - Bobby SzokePodcasting - Sam GoldbergVideo Editing - Logan HarrisGuest Booking - Alyssa FisherSocial Media Management - Kiera BronsonSUBSCRIBE TO OUR OTHER PODCASTS:Court JunkieObjectionsThey Walk Among AmericaCoptales and CocktailsThe Disturbing TruthSpeaking FreelyLAW&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.

Wondery Plus subscribers can binge all episodes of this Law and Crimes series ad-free right now. Join Wondry Plus in the Wondery app Apple Podcasts or Spotify. Agent Nate Russo returns in Oracle 3, Murder at the Grandview, the latest installment of the gripping Audible Original series. When a reunion at an abandoned island hotel turns deadly, Russo must untangle accident from murder. But beware, something sinister lurks in the grand. View Shadows. Joshua Jackson delivers a bone-chilling performance in this supernatural thriller 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. If Your Honor didn't see, everybody else in the country saw Marsha Clark walking out after one of the jurors was disqualified, giving another prosecutor a thumbs-up sign. He was part of the dream team that won an acquittal. for O.J. Simpson. Now Alan Dershowitz is talking to us about ways a lawyer could defend Brian Koberger at trial. The maximum penalty for this offense if you were to plead guilty or be found guilty is death or imprisonment for life. Do you understand? Yes. I'm Ann Janette Levy and welcome to

Law and Crimes Sidebar Podcast. Brian Koberger is in the Laetaw County Jail being held without bail for the murders of Maddie Mogan, Kaylee Gonzalez, Zana Kurnodal, and Ethan Chapin back on November 13th of last year. The prosecution claims the murders were planned, likely for months. No murder weapon has been recovered and police still don't know the motive. And so far, Kaley Gonzalez's family says they haven't found a connection between her and Brian Koberger. Over the weekend, Kaley Gonzalez's sister spoke to News Nation. I think we're still going to keep looking. I've had a lot of people reach out with, you know, Instagram posts or even Spotify or lots of connections that they've been able to find. And those are super valuable. All of those go over to, you know, the Moscow

Police Department, as well as the Idaho State Police and the FBI, because nothing is insignificant at this point. And everything is being looked through. This case has captured the attention of so many people around the world. And the release of the probable cause affidavit included evidence that police say they have that places Coburger at the scene of the crimes. That includes cell phone data. Police say places Coburger in the area on at least 12 occasions. Surveillance footage of a white Hyundai Alantra circling the area and pulling up to the home the night of the murders. And Coburger's DNA on a knife sheath that was found laying next to victim Maddie Mogan. I spoke with the attorney for the Gonzalva's family about that affidavit and what they think about it.

Well, I think it was a lot more information than anybody expected. I've read probable cause affidavits in the past just through my, as a prosecutor and a criminal defense attorney, and this was pretty extensive. It kind of lays out the prosecution's case. I'm sure there will be additional evidence that they have that they haven't released in the probable cause affidavit, but gives you a good guideline for how they determine that it was the defendant in this case. Another startling fact in that affidavit, a surviving roommate told police that she actually heard crying coming from Zana Kronodl's bedroom the night of the murders.

And she also said she heard a man saying, it's okay, I'm going to help you. Then she said she saw a man walking toward her and exiting the home through a sliding glass door. Well, I think we all have to remember that she is a victim in this case. You know, I don't know if anybody can, everyone's there to second guess what happened. and how she should have or might have, could have reacted. You know, she states in the, I think in the affidavit that she froze in that moment and then went back in her room and, you know, and ultimately the 911 call wasn't made until later, you know, eight hours later, I believe, or something along those lines.

But who knows? I mean, people, maybe she saw him and maybe she thought he was going out for a smoke on the, out on the deck and coming back in. Who knows what was going through her mind? but I don't think anybody should be putting any blame or anything on her about anything. And the family feels the same way. She is going through a traumatic incident where she had four roommates that were murdered. She was able to garner some information that helped out the affidavit, the identification of the black clothes, of the black mask over his nose, the bushy eyebrows, approximate height, approximate build.

very critical to the investigation. Now, this is one of the higher profile criminal cases that we've seen in many, many years. When I think of high profile cases that have gone to trial where literally the world was watching and a defendant was charged with a crime, I think of people like Casey Anthony, Scott Peterson, and O.J. Simpson. O.J. Simpson, of course, was acquitted of murdering his wife, Nicole and her friend Ron Goldman. back in the 90s. Alan Dershowitz is a professor emeritus of law at Harvard University Law School and he was part of OJ Simpson's defense team. Let's take a look back. That the prosecution in one

respect has a no-lose scenario that they may be attempting, namely that they're trying to reshape the jury to its advantage by striking jurors selectively. And they know that the worst case scenario is that there will be a mistrial. And if there's a mistrial, they get to try the case a second time. Joining me to discuss defending a high profile client is someone who knows all too much about that. He is Professor Alan Dershowitz. He was part of OJ Simpson's dream team back in the 90s. Professor Dershowitz, welcome back to Sidebar. Thanks for coming on. Well, thanks for having me. You've read the probable cause affidavit. And we know that this is all about probable cause, obviously. This is not a beyond a reasonable doubt. That's not what they were trying to do with this

document. So where would you see places where you could defend Brian Coburger, just based on what we know right now? Every case is different and every defense is different. I am always opposed to lawyers who say, I always do it this way. I always put the client on the stand. I never put the client on the stand. Every case has to be considered differently and on the merits. Also, you have to consider the atmosphere. The O.J. Simpson case was unique because of the racial tensions that were involved, police misconduct. Remember, too, the affidavit only presents one side of the story. It's only the prosecution's version. You have to begin to develop your own evidence. And I'm going to surprise people when I say that a good criminal defense lawyer always starts with a presumption of guilt,

not a presumption of innocence. You always assume your client is guilty. And then you work back from there. If you assume your client is innocent, you'll make mistakes. You'll allow searches. You'll allow him to speak to the police. So you always start with a presumption of guilt and then try to develop evidence that questions or challenges. And you always keep in mind the possibility you have a plea bargain. This is difficult in a case like this where there were so many deaths and so brutal. So that, you know, the lawyers, whoever they are, really have their work cut out for It appears that way. And obviously, things have changed a lot since you represented O.J. Simpson and were part of that team back in the 90s. We have all of this cell phone evidence, things like that. Computer stuff. They're going to do a deep dive on his computer to see what's going on in there, to see if it is indeed true that he is the guilty party and was the person possibly stalking these young women. Talk to me about what you see in that probable cause affidavit that could cause you or that could prompt you to think. think, oh, I might be able to pull on that thread. There may be something there.

It's very difficult because the probable cause application really shows a variety of approaches that close in on this one defendant. Obviously, cell phone records, the car, history of proximity to the events. And when you have multiple approaches, even if they're all circumstantial, circumstantial evidence, if it's solid enough and if it closes the loops, can really be very powerful. What you're looking for is an alternative. You're looking to try to explain away the physical, undisputable evidence in a way that presents the possibility of innocence or at least reasonable doubt. That's not always possible, but that has to be the approach you take. You look at every single element of the circumstantial case and see if there is an argument consistent with lack of guilt that those circumstances can lead you to.

Again, sometimes very, very difficult. It was very difficult in the O.J. Simpson case because there you had blood evidence, you had location evidence, you had wounds, you had a range of factors, all of which pointed in one direction. But we were very lucky because the police messed up terribly in the O.J. Simpson case. They likely planted some evidence, hoping to convict somebody they believe was guilty. Here, the police seem to have done a very credible job. And, of course, we don't know what investigation by the defense will show up. But often putting the police on trial, putting the prosecution on trial, and deflecting attention away from the defendant, other people can be an approach that's worth pursuing as well.

One of the big pieces of evidence mentioned in the probable cause affidavit is the fact that they say that the suspect's DNA was found on the snap of the knife sheath that was left next to one of the victims, Madison Mogan, on her bed. How do you challenge that? I know Barry Sheck was really the DNA guy on your team. We don't know what the lab results are that show that it was his DNA. So there's probably a lot that we don't know about that process and what happened in the lab. It seems like very damning evidence if it's true.

But I've seen cases where damning evidence dissolves upon analysis. I won a case some years ago that seemed like it was open and shut. And we found out the lab had made mistake after mistake after mistake. And our client was acquitted. So you have to challenge every single aspect of the case. And you're not going to win any popularity contest. if you're a defense attorney here because in the court of public opinion, this guy is guilty of horrible, horrible crimes.

And in America, although we say everybody's entitled to a defense, the reality is if you defend certain people, you're going to be a pariah as a defense lawyer. And so beware of what this will do to your reputation, your friendships. It started with John Adams back in the killing of the. people in the Boston Massacre, he was so incredibly unpopular for a period of time. But he led the way and the American tradition of every defendant, particularly those who are most unpopular, deserve a zealous defense. So this man should get a zealous defense. That doesn't guarantee an acquittal or even a hung jury. All he's entitled to is a zealous defense,

not a verdict. There's cell phone evidence in this case. And some of the cell phone evidence shows that according to the affidavit and according to the police, that this guy was in the area of that home on at least 12 occasions prior to the night of the murders between August of 2022 and November, also showing that he turned off his phone for a period of time, both before the homicides during and sometime after, it comes off like about 28 minutes. It turns back on about 28 minutes after they say he left. the scene. What do you make, how do you challenge that or how do you explain the phone going off during that period of time? We have to ask him, first of all. He is the most important witness.

He may have a reason why the phone would have been turned off. He may acknowledge that he was in the area, that he frequently went to the area. After all, he lived not too far away. In the end, it may be that he had a relationship. We have no real evidence of this with any of the alleged victims or their friends. So what you're looking for is possible innocent explanations or at least explanations that create a reasonable doubt. But it's not always there. Just because you want it and just because you're looking for it doesn't mean you can have it. I've had many cases where in the end you have to sit down and have a talk with your client and say this is not a defensible case. This is a case that requires a plea bargain. And let me see if I can.

can negotiate something less than the death penalty or life imprisonment. And a lawyer therefore plays a lot of roles, not only defending in court, but negotiating as well. And one thing I do find interesting is the fact that when we were in Moscow, we saw that there's a 24-hour grocery store in that immediate area. It's actually right on the corner where he was pulled over back in August when they saw him in that general area. And there's a Walmart there in that area. And there's also a 24-hour grocery store. So I kind of wondered if they would go that route. Also, the fact that we heard from a neighbor who said he was a night owl and he was up in the middle of the night vacuuming and things like that. Look, we live in a different world today from the O.J. Simpson, a world in Great Britain,

particularly, but in parts of the United States as well, everything is recorded. There are cameras all over the place. And that's an argument that can cut both ways, because sometimes the cameras will show a person in an innocent context, as you say, around the Walmart or something else. In other situations, it only points to guilt. So it's a knife that cuts both ways, the pervasiveness of cameras. In a case of guilt, generally, it will help the prosecution, but it's something that has to be explored. Look, we're right at the beginning of this. The prosecution has had its say the defense has probably hardly begun its own investigation, and it has to look at all the evidence and jurors and judges and even members of the public have to come to this

with an open mind. The people should have a presumption of innocence. As I say, the lawyer has to start with a presumption of guilt, particularly in a case of this kind. And you had mentioned the video evidence. That was going to be my next point. We have surveillance footage, according to the affidavit in this case, that they say shows this vehicle entering the general area. They had put out a call for Hyundai Alontera's between 2011 and 2013. That was back on December 7th. They put out the call for that. But according to the affidavit,

this guy was on their radar on November 29th. So that was a week or so before that. How do you challenge that video evidence? They later said, you know, an FBI, an analyst said that that Hyundai Alontra could have been 2011 to 2016. So they kind of moved their window there. What's very surprising to me is that the defendant in this case

is a criminal justice major, he understands everything we're talking about. And he understood that the car that fit the description of his car was in the area. And it's surprising that he didn't take, if he's guilty, take the kinds of precautions you'd expect of somebody as as intelligent and as educated as he is. But let's remember the Leopold and Loeb case back in the beginning of the 20th century, two brilliant people, really brilliant people, particularly Leopold, who eventually went to prison and did medical things. Brilliant. They wanted to commit the perfect crime as criminology majors as well. And they committed the perfect blunder. They left the glasses behind. They left evidence behind. So there's no accounting

for the stupidity of people when it comes to committing crimes, they all think they're smarter than the officials. And in the end, in general, the evidence prevails. And the evidence in this case does point, according to at least the affidavit, to probable guilt. And therefore, the job of the defense attorney is going to be very daunting, very daunting. And there are too many things that have to be explained here. But let's wait to see what they come up with before we rush to a judgment. Sure, of course. And we have this document, a 19 page document. The attorneys don't have the evidence yet, and not that we know of at least. And I would assume that the discovery in this case will be voluminous just because we had, you know, 19,000 or so tips. We've got video that was

submitted hours and hours of surveillance video. Coming through all of that is going to be daunting. I would assume they would need investigators and paralegals to be assisting with that process. Yes, I would hope that the state would provide it if the defendant can't afford it. You know, it's interesting that there's more discovery in civil cases in most jurisdictions than there isn't criminal cases. And some jurisdictions, and I don't know the local law there, the defendant doesn't get access to everything, gets access to anything that's exculpatory, obviously, but not necessarily evident. that's inculpatory. So we'll wait to see what discovery is afforded. I'm always in favor of open book discovery. Both sides should present what they're going to present that trial as early as possible so that adequate investigation can be conducted. The fact that he went back to the scene,

they claim that morning later on around sometime after 9 a.m. They believe the homicides were committed between 4 and 4.20 a.m. How do you defend the? that, do you think? Well, again, the argument they'll make is it's a two-edged sword that a person who's actually committed these brutal murders wouldn't go back to the scene of the crime, particularly if he's a criminal justice major. But again, there's no accounting for the stupidity of people when it comes to committing crimes. And so it may not be able to be explained. And not every piece of evidence has an innocent explanation. And that's what remains to be seen. But at the moment, all we have is the prosecution's version. We have material that's in the affidavit that probably is

inadmissible hearsay evidence and other kinds of evidence. And so we'll have to see what happens at the trial itself, what admissible evidence there is, what explanations there are. Will the defendant to take the witness's hand or won't he? Will there be corroborating witnesses? We're a long way away from being able to evaluate the likely outcome, although based on the affidavit, the likely outcome does at this point in time point to probable guilt. And the surviving roommate, DM, she says she saw a man with bushy eyebrows walk toward her and passed her and go out the sliding glass door. Her identification could be very powerful. Well, identification testimony is usually the least influential.

Many of the cases that we've seen reversed on appeal or based on neutral evidence are based on false identification. And so identification evidence is good if it's corroborated or if it corroborates other information. But standing alone, eyewitness testimony during a tense period of time. as general as this is would not be the strongest evidence. The strongest evidence would be the combination of circumstances, the elements that come together and point in one direction. And then the eyewitness identification really helps corroborate that and put the last nail in the

coffin. Well, Professor Alan Dershowitz, thank you so much for coming on to discuss this case with us. We appreciate it. Hope that you'll come back another time. Thank you. And that's it for this edition of Law and Crime's Sidebar podcast. It is produced by Sam Goldberg, Logan Harris, and Evan Derrickson. Bobby Zoki is our YouTube manager. Kira Bronson handles our social media, and Alyssa Fisher is our booking producer. You can listen to and download Sidebar on Apple, Spotify, Google, and wherever else you get your podcasts. And of course, you can always watch it on Law and Crimes YouTube channel. I'm Ann Jeanette Levy, and we will see you next time. You can binge all episodes of this law and crime series ad free right now on Wondery Plus.

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