Latest / Beyond The Horizon / Murder In Moscow: Bryan Kohberger Objects To The Discovery Related Protective Order

Transcript

Murder In Moscow: Bryan Kohberger Objects To The Discovery Related Protective Order · Beyond The Horizon

• 0:00
  Speaker 1: To the program in this episode we're going to dive
• 0:03
  Speaker 1: back into those court documents and we're going to take
• 0:06
  Speaker 1: a look at the objection to the state's motion for
• 0:09
  Speaker 1: a protective order case number cr 29-22-2805 state of idaho
• 0:17
  Speaker 1: plaintiff first brian c kohlberger the defendant comes now brian
• 0:23
  Speaker 1: c kohlberger by and through his attorney jay weston lodgson
• 0:27
  Speaker 1: chief deputy litigation and hereby objects to the state's motion
• 0:31
  Speaker 1: for a protective order filed June 16, 2023, on the
• 0:36
  Speaker 1: grounds that the material that the state seeks to hide
• 0:39
  Speaker 1: is discoverable and must be provided to Mr.
• 0:42
  Speaker 2: Kohlberger.
• 0:44
  Speaker 1: Factual Background On November 13, 2022, law enforcement, responding to
• 0:50
  Speaker 1: a 911 call, found Madison Mogan, Kaylee Gonsalves, Zanna Kernodle,
• 0:56
  Speaker 1: and Ethan Chapin deceased. Law enforcement later found a K-bar
• 1:00
  Speaker 1: knife sheath placed next to Ms. Mogan on her bed.
• 1:04
  Speaker 1: The sheath was placed button-side down and partially under Ms.
• 1:08
  Speaker 1: Mogan and the comforter. On November 20, 2022, Idaho State
• 1:13
  Speaker 1: Police Lab in Meridian, Idaho, located DNA on the button
• 1:18
  Speaker 1: of the sheath and performed STR analysis that led nowhere
• 1:22
  Speaker 1: when ran through CODIS, Combined DNA Index System. other than
• 1:27
  Speaker 1: to show the provider was a male. By December 17, 2022,
• 1:32
  Speaker 1: lab analysts were aware of two additional male DNAs within
• 1:36
  Speaker 1: the house where the deceased were located and another unknown
• 1:40
  Speaker 1: male DNA on a glove found outside the residence on
• 1:44
  Speaker 1: November 20, 2022. To this date, the defense is unaware
• 1:49
  Speaker 1: of what sort of testing, if any, was conducted on
• 1:52
  Speaker 1: these samples other than STR DNA profiles. Further, These three
• 1:57
  Speaker 1: separate and distinct male DNA profiles were not identified through CODIS,
• 2:02
  Speaker 1: leading to the conclusion that the profiles do not belong
• 2:06
  Speaker 1: to Mr.
• 2:06
  Speaker 2: Koberger.
• 2:07
  Speaker 1: That's weak as hell. Sorry, nice try, but this is
• 2:10
  Speaker 1: a college house. Of course there's going to be profiles
• 2:13
  Speaker 1: of other males in the house. How many of those
• 2:15
  Speaker 1: profiles were found on the sheath of the knife? While
• 2:19
  Speaker 1: this was ongoing, police were investigating many possible various suspects.
• 2:24
  Speaker 1: Many of them provided DNA. At least one had his
• 2:27
  Speaker 1: DNA surreptitiously taken from a discarded cigarette. Many also had
• 2:32
  Speaker 1: their phones taken and downloaded. The area of the investigation
• 2:36
  Speaker 1: had to do with a white sedan seen on camera
• 2:39
  Speaker 1: located at 1122 King Road, first glimpsed by officers on
• 2:44
  Speaker 1: November 18, 2022. By November 25th, 2022, police believed the
• 2:51
  Speaker 1: car to be a white Elantra and asked law enforcement
• 2:54
  Speaker 1: to be on the lookout for one. Precisely how the
• 2:57
  Speaker 1: police came to believe the car was an Elantra is
• 3:01
  Speaker 1: still unknown. A report from an analyst for the FBI
• 3:05
  Speaker 1: dated March 21st, 2023, shows that analysts heavily relying on
• 3:10
  Speaker 1: a video of a car heading in the wrong direction
• 3:13
  Speaker 1: at the wrong time on Ridge Road. The state's latest
• 3:17
  Speaker 1: filing admits that somewhere within all of this they engaged
• 3:21
  Speaker 1: in investigative genetic genealogy using the DNA taken from the
• 3:26
  Speaker 1: button on the sheath and now claims that it was
• 3:29
  Speaker 1: due to this use of the technique that it tipped
• 3:32
  Speaker 1: local law enforcement to investigate Mr.
• 3:35
  Speaker 2: Kohlberger.
• 3:36
  Speaker 1: It remains unclear what the police first relied on in
• 3:39
  Speaker 1: focusing their investigation on Mr.
• 3:41
  Speaker 2: Kohlberger.
• 3:42
  Speaker 1: Really?
• 3:43
  Speaker 2: Bushy eyebrows? Elantra?
• 3:45
  Speaker 1: Doesn't ring a bell? No matter what came first, the
• 3:49
  Speaker 1: car or the genetic genealogy, the investigation has provided precious little.
• 3:54
  Speaker 1: There is no connection between Mr. Kohlberger and the victims.
• 3:57
  Speaker 1: There is no explanation for the total lack of DNA
• 4:00
  Speaker 1: evidence from the victims in Mr. Kohlberger's apartment, office, home,
• 4:05
  Speaker 1: or vehicle. In essence, though the lack of disclosure and
• 4:08
  Speaker 1: their motion to protect the genetic genealogy investigation, the state
• 4:13
  Speaker 1: is hiding its entire case. Coming from Brian Kohlberger's team,
• 4:17
  Speaker 1: that's pretty funny, considering they wanted all of this to
• 4:20
  Speaker 1: be adjudicated in the darkness of a courtroom. No cameras,
• 4:24
  Speaker 1: limited coverage, you know, the whole thing. But now, all
• 4:27
  Speaker 1: of a sudden, the state is hiding its entire case?
• 4:30
  Speaker 2: Yeah, okay, sure. The argument.
• 4:32
  Speaker 1: The state apparently thinks that they need not explain how
• 4:35
  Speaker 1: they came to think that it was Mr. Kohlberger's DNA
• 4:39
  Speaker 1: on the sheath. Presumably, the defense is expected to accept,
• 4:43
  Speaker 1: at face value, that the sheath had touched DNA just
• 4:47
  Speaker 1: waiting for testing by all of the FBI's myriad of resources. Additionally,
• 4:52
  Speaker 1: the defense is to guess whether the state focused its
• 4:55
  Speaker 1: investigation on Mr. Kohlberger via a bizarrely complex DNA tree
• 5:00
  Speaker 1: experiment or through the faulty identification of the vehicle involved
• 5:05
  Speaker 1: in this case. Perhaps unsurprisingly, Mr. Kohlberger does not accept
• 5:10
  Speaker 1: that his defense does not need this information. It rather
• 5:13
  Speaker 1: obviously falls within the ambit of Rule 16b, 4, and 5,
• 5:20
  Speaker 1: a fact the state's briefing makes clear in its kitchen
• 5:23
  Speaker 1: sink approach to their briefing. The state begins their argument
• 5:26
  Speaker 1: claiming Rule 16 has no interest in IgG testing and
• 5:31
  Speaker 1: then ends their argument claiming that somehow people will stop
• 5:34
  Speaker 1: sharing their genetics if they were to realize the government
• 5:37
  Speaker 1: is watching. Both arguments must fail. To begin with, The
• 5:41
  Speaker 1: state apparently only wants to prevent Mr. Koberger from seeing
• 5:45
  Speaker 1: how the IgG profile was created and how many other
• 5:48
  Speaker 1: people the FBI chose to ignore during their investigation. In essence,
• 5:54
  Speaker 1: the state argues that if the later STR testing is accurate,
• 5:57
  Speaker 1: then there is no reason to concern ourselves with how
• 6:00
  Speaker 1: the state came to investigate Mr.
• 6:02
  Speaker 2: Koberger.
• 6:04
  Speaker 1: State's brief at 9. What the state's argument asks this
• 6:07
  Speaker 1: court and Mr. Koberger to assume is that the DNA
• 6:10
  Speaker 1: on the sheath was placed there by Mr. Kohlberger and
• 6:14
  Speaker 1: not someone else during an investigation that spans hundreds of
• 6:17
  Speaker 1: members of law enforcement and apparently at least one lab
• 6:21
  Speaker 1: that the state refuses to name. Perhaps most puzzling is
• 6:26
  Speaker 1: the state's argument that while Rule 16B5 requires them to
• 6:30
  Speaker 1: turn over the results or reports from scientific investigations, it
• 6:34
  Speaker 1: does not require the state to disclose what law enforcement
• 6:38
  Speaker 1: does with the results or reports. States brief at 14.
• 6:42
  Speaker 1: First of all, that sounds like an admission that the
• 6:45
  Speaker 1: information as to how the IGG was carried out should
• 6:49
  Speaker 1: be disclosed. Second, what law enforcement does with the results
• 6:53
  Speaker 1: or reports is covered by Rule 16B6, Statement of Prosecution Witnesses.
• 6:59
  Speaker 1: And eight, police reports. Frankly, the fact that members of
• 7:02
  Speaker 1: the FBI are so concerned about permitting Mr. Kohlberger to
• 7:06
  Speaker 1: know what they were up to with what was supposedly
• 7:10
  Speaker 1: his DNA does not give one the impression that there
• 7:13
  Speaker 1: is nothing to see here, as the state seems to imply. Finally,
• 7:18
  Speaker 1: the state's claim that I.C.R.16G2 applies to this matter is
• 7:23
  Speaker 1: quite bizarre. Presumably, the independent company the government relied on
• 7:27
  Speaker 1: was paid for its work and would stand by it
• 7:30
  Speaker 1: in court. The state provides no real argument as to
• 7:33
  Speaker 1: why the company needs to be protected.
• 7:35
  Speaker 2: Mr.
• 7:36
  Speaker 1: Kohlberger is left to suspect they wish to keep their
• 7:39
  Speaker 1: methods from facing questions. To the extent that there is
• 7:43
  Speaker 1: some concern about intellectual property, that can be addressed via
• 7:46
  Speaker 1: a protective order that permits Mr. Kohlberger and his defense
• 7:50
  Speaker 1: team to review their work. CEG State v. Pickett, 466
• 7:54
  Speaker 1: NJ 270-246 A. 3D- 279 New Jersey Superior Court, Division 2021. Second,
• 8:06
  Speaker 1: the state appears to argue that everyone living on Earth
• 8:09
  Speaker 1: that provides genetic information is A, unaware that their DNA
• 8:13
  Speaker 1: could be used by a government somewhere for something, and B,
• 8:17
  Speaker 1: is an informant within the meaning of the term in
• 8:20
  Speaker 1: the rule. The state citations to cases involving actual informants
• 8:25
  Speaker 1: hardly help it make its incredible leap. No court, has
• 8:28
  Speaker 1: ever found the existence of a DNA informant. It would
• 8:32
  Speaker 1: appear that the state is acknowledging that the companies are
• 8:35
  Speaker 1: providing personal information to the state and that those companies
• 8:39
  Speaker 1: and the government.
• 8:40
  Speaker 2: Would suffer if the public were to realize it.
• 8:44
  Speaker 1: The only two databases that allow access are the ones
• 8:47
  Speaker 1: that already inform their users and those users can opt
• 8:50
  Speaker 1: in to allow law enforcement searches. The statement by the
• 8:54
  Speaker 1: government implies that the databases searched may be the ones
• 8:58
  Speaker 1: that law enforcement is specifically barred from, which explains why
• 9:02
  Speaker 1: they do not want to disclose their methods. If the
• 9:05
  Speaker 1: fact that the government is looking at the genetic information
• 9:09
  Speaker 1: that people are sharing was at all issue here, then
• 9:12
  Speaker 1: the state's very public acknowledgement of such investigations was clearly
• 9:16
  Speaker 1: a big mistake.
• 9:18
  Speaker 2: In any case.
• 9:19
  Speaker 1: It is hard to understand why Mr. Kohlberger should be
• 9:22
  Speaker 1: the one to suffer because these companies and our government
• 9:25
  Speaker 1: choose to either mislead or not educate the public. According
• 9:30
  Speaker 1: to the Pew Research Center in February 2020, 48% of
• 9:35
  Speaker 1: respondents thought it was acceptable to give their data to
• 9:38
  Speaker 1: law enforcement to solve a crime. 33% said no and
• 9:43
  Speaker 1: 18% were unsure. James Halpin, Police Use of Forensic Genealogy Tech,
• 9:48
  Speaker 1: raises privacy concerns. The Citizen's Voice, March 28, 2022. However,
• 9:54
  Speaker 1: 60% thought their genetic information could not be shared with
• 9:58
  Speaker 1: other companies. There is no federal law about the sharing
• 10:02
  Speaker 1: of genetic information, but multiple states have begun regulating police use.
• 10:10
  Speaker 1: Also see Lindsey Van Ness DNA databases are a boon
• 10:13
  Speaker 1: to police but menace to privacy. Critics say Stateline, February 20, 2020,
• 10:19
  Speaker 1: available at Stateline.org. Mr. Koberger has reason to be extremely
• 10:24
  Speaker 1: suspicious of the IGG used in this case. Rather than
• 10:28
  Speaker 1: seeing it as some sort of complex tree building that
• 10:32
  Speaker 1: led to him, it appears far more like a lineup
• 10:35
  Speaker 1: where the government was already aware of who they wanted
• 10:38
  Speaker 1: to target. Rather than have an investigation done by someone
• 10:42
  Speaker 1: blind to the fact, the FBI chose to do it themselves.
• 10:46
  Speaker 1: This is akin to the police pulling in Mr. Kohlberger
• 10:49
  Speaker 1: and five of his cousins off the street and then
• 10:51
  Speaker 1: pointing at him. Okay, that's a bit of hyperbole. The
• 10:55
  Speaker 1: only authority the state has in its favor that is
• 10:58
  Speaker 1: on point is a trial court order from a California
• 11:01
  Speaker 1: case that settled before it could lead anywhere. That decision
• 11:06
  Speaker 1: relied on is People v. Johnson, 139, California, 4th Appeals Court, 1135, 43,
• 11:15
  Speaker 1: California Court Appeals 2006. The court in Johnson was not
• 11:21
  Speaker 1: deciding whether a defendant had a right to know how
• 11:24
  Speaker 1: he was identified, only that his identification could come in
• 11:28
  Speaker 1: a trial without a mini trial about it.
• 11:31
  Speaker 2: A better case on the issue. is State v.
• 11:35
  Speaker 1: Artiega, 2023, WL 3859-579, A. 3D, New Jersey Superior Court, Appellate Division, 2023.
• 11:47
  Speaker 1: In this case, an appellate court heard similar arguments about
• 11:50
  Speaker 1: the need for software used for facial recognition to be
• 11:53
  Speaker 1: discovered to the defendant, though they would not be admitted
• 11:57
  Speaker 1: at trial. The court, considering the matter, found, we are
• 12:00
  Speaker 1: keenly aware, The cases we have discussed involved instances concerning
• 12:05
  Speaker 1: fry hearings and potential expert testimony, and that here we
• 12:10
  Speaker 1: are dealing instead with eyewitnesses who have already identified the
• 12:14
  Speaker 1: perpetrator and the identification found admissible under Wade. However, the
• 12:19
  Speaker 1: facts of this case convince us defendant will be deprived
• 12:22
  Speaker 1: of due process if he does not have access to
• 12:25
  Speaker 1: raw materials integral to the building of an effective defense.
• 12:31
  Speaker 1: The evidence sought here is directly tied to the defense's
• 12:33
  Speaker 1: ability to test.
• 12:35
  Speaker 2: The reliability of the FRT.
• 12:38
  Speaker 1: As such, it is vital to impeach the witnesses, identification,
• 12:42
  Speaker 1: challenge the state's investigation, create reasonable doubt, and demonstrate third-party guilt.
• 12:48
  Speaker 1: The FRT's reliability has obvious implications for the accuracy of
• 12:52
  Speaker 1: the identification process because an array constructed around a mistake,
• 12:57
  Speaker 1: potential match would leave the witness with no actual perpetrator
• 13:01
  Speaker 1: to choose. The reliability of the technology bears direct relevance
• 13:06
  Speaker 1: to the quality and thoroughness of the broader criminal investigation
• 13:10
  Speaker 1: and whether the potential matches the software returned yielded any
• 13:15
  Speaker 1: other viable alternative suspects to establish third-party guilt. Defendants' requests
• 13:21
  Speaker 1: for the identity, design, specifications, and operation of the program
• 13:25
  Speaker 1: or programs used for analysis and the database or databases
• 13:30
  Speaker 1: used for comparison are relevant to FRT's reliability. At trial,
• 13:36
  Speaker 1: the state will likely have the investigating officer explain the
• 13:40
  Speaker 1: police investigation, including the process of retrieving the still photo
• 13:44
  Speaker 1: from the surveillance cameras ultimately used to generate an image
• 13:49
  Speaker 1: of the defendant. Although we do not speculate regarding the
• 13:52
  Speaker 1: exact nature of this testimony and whether defendant will seek
• 13:55
  Speaker 1: to impeach it, the fact the state does not bear
• 13:58
  Speaker 1: the burden of adducing testimony regarding the composition of the
• 14:03
  Speaker 1: photo or ray does not bar the defense access to
• 14:06
  Speaker 1: the discovery that's sought. Mr. Kohlberger finds himself in a
• 14:10
  Speaker 1: similar position as Mr.
• 14:12
  Speaker 2: Arteaga.
• 14:14
  Speaker 1: A massive investigation came to focus on him and him alone.
• 14:18
  Speaker 1: The state appears to be trying to hide its original
• 14:20
  Speaker 1: domino such that he cannot discover why. Mr. Kohlberger has
• 14:25
  Speaker 1: a right to discover and question the investigation that led
• 14:28
  Speaker 1: to him. This court should so find. dated the 22nd
• 14:32
  Speaker 1: of June of 2023 and signed by Ann Taylor. All right, folks,
• 14:38
  Speaker 1: that's going to do it for this one. All of
• 14:39
  Speaker 1: the information that goes with the episode can be found
• 14:43
  Speaker 1: in the description box.