Latest / Beyond The Horizon / Mega Edition: Bryan Kohberger Battles The State Over Alleged Sanctionable Offenses (10/16/26)

Transcript

Mega Edition: Bryan Kohberger Battles The State Over Alleged Sanctionable Offenses (10/16/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up everyone and welcome back to the program. In
• 0:03
  Speaker 1: this episode we're going to pick up with the court
• 0:05
  Speaker 1: documents from Moscow and this time we're taking a look
• 0:08
  Speaker 1: at the state's objection to the defendant's motion to compel
• 0:12
  Speaker 1: ICR 16B7 materials and for sanctions. Case number CR 01-24-31665
• 0:18
  Speaker 1: comes now. The state of Idaho by and through the
• 0:27
  Speaker 1: Latah County Prosecuting Attorney and respectfully objects and moves the
• 0:31
  Speaker 1: court to deny the defendant's motion to compel ICR 16B7
• 0:35
  Speaker 1: material and for sanctions, filed on December 27, 2024. Relevant
• 0:40
  Speaker 1: Facts The state has been actively engaged in replying to
• 0:45
  Speaker 1: the defendant's request for discovery, including materials related to potential
• 0:49
  Speaker 1: expert witnesses, since the original discovery request was filed on
• 0:53
  Speaker 1: January 10, 2023. As ICR 16J contemplates, discovery involves a
• 1:00
  Speaker 1: continuous duty to disclose which the state has and will
• 1:03
  Speaker 1: continue to comply with. This specific continuing duty to disclose
• 1:08
  Speaker 1: evidence is that ICR 16 compliance is not a one-time event.
• 1:14
  Speaker 1: Defendant currently notes this case involves a substantial amount of discovery.
• 1:19
  Speaker 1: Defendant cites over 68 terabytes and the state does not
• 1:22
  Speaker 1: dispute this. The discovery received by the state from multiple
• 1:26
  Speaker 1: agencies has been provided to defense in the same manner
• 1:29
  Speaker 1: it was provided to the state. The state's in the
• 1:32
  Speaker 1: same position as the defense in this regard. The court
• 1:35
  Speaker 1: record will reflect that the state has provided extremely detailed
• 1:39
  Speaker 1: responses to defendants' requests for discovery and motions to compel
• 1:43
  Speaker 1: above and beyond what is required by Rule 16. On
• 1:47
  Speaker 1: December 18, 2024, the state, in compliance with the court's order...
• 1:52
  Speaker 1: filed its guilt phase experts consistent with ICR 16B7. These
• 1:57
  Speaker 1: disclosures were filed 7 months and 24 days before the
• 2:01
  Speaker 1: commencement of trial. As of the date of this filing,
• 2:04
  Speaker 1: we are 7 months and 12 days before the commencement
• 2:06
  Speaker 1: of trial. Nevertheless, defendant argues that he has been prejudiced
• 2:11
  Speaker 1: and requests sanctions. Defendant's arguments are without merit. Argument The
• 2:17
  Speaker 1: state has complied with the court's order and Idaho Criminal
• 2:20
  Speaker 1: Rule 16B7 regarding disclosure of expert witnesses. On December 18, 2024,
• 2:26
  Speaker 1: the state filed state supplemental response to request for discovery
• 2:30
  Speaker 1: regarding expert testimony in compliance with the court's unredacted sealed
• 2:35
  Speaker 1: order governing further criminal proceedings and notice of trial setting.
• 2:39
  Speaker 1: An order on October 9, 2024. That order is stated
• 2:44
  Speaker 1: as follows under Section C, Discovery, and Expert Disclosures. Experts.
• 2:49
  Speaker 1: A list of experts the parties intend to call at trial,
• 2:52
  Speaker 1: including a copy of the expert's report consistent with ICR 16B7,
• 2:57
  Speaker 1: and a copy of the expert's curriculum, shall be disclosed
• 3:00
  Speaker 1: to the opposing party as follows. States Guilt Phase Experts,
• 3:04
  Speaker 1: December 18, 2024. Page 2. The order refers to ICR 16B7,
• 3:07
  Speaker 1: which states in relevant part, expert witness. On written request
• 3:14
  Speaker 1: of the defendant, the prosecutor must provide a written summary
• 3:17
  Speaker 1: or report of a testimony that the state intends to
• 3:21
  Speaker 1: introduce at trial or at a hearing pursuant to Rule 702, 703,
• 3:26
  Speaker 1: or 705 of the Idaho Rules of Evidence. The summary
• 3:30
  Speaker 1: provided must describe the witness opinions, the facts and data
• 3:34
  Speaker 1: for those opinions, and the witness's qualifications. The defendant cites
• 3:38
  Speaker 1: State v. Morin in support of this motion and Defendant's
• 3:41
  Speaker 1: motion to compel ICR 16B7, page 3. Morton was charged
• 3:46
  Speaker 1: with driving under the influence of drugs, marijuana. The state
• 3:50
  Speaker 1: followed the following expert disclosure for the forensic toxicologist. Dr.
• 3:56
  Speaker 1: Dawson is an expert in toxicology and pharmacology and will
• 3:59
  Speaker 1: assist the trier of fact in understanding the evidence regarding
• 4:02
  Speaker 1: the effects of drugs on the behavior and performance of
• 4:06
  Speaker 1: the defendant as reported in the case. Dr. Dawson will
• 4:10
  Speaker 1: utilize known and generally accepted scientific principles of absorption, distribution, metabolization,
• 4:17
  Speaker 1: and excretion of drugs. Testimony may include information on the
• 4:22
  Speaker 1: effects of the drugs consumed by the defendant in this
• 4:24
  Speaker 1: case and the possible effects of said drugs. State v.
• 4:28
  Speaker 1: Morin 158 Idaho 622-625-349P 3D 1213-1216-2015 At trial, Dr. Dawson
• 4:40
  Speaker 1: testified that dilated pupils, confusing speech patterns, impairments to balance,
• 4:45
  Speaker 1: and other psychomotor function, lack of convergence, and green coating
• 4:50
  Speaker 1: of the tongue were all diagnosis indications of marijuana intoxication. Dr.
• 4:56
  Speaker 1: Dawson also testified to the physiological effects of other drugs
• 5:00
  Speaker 1: found in Morin's system. Ultimately, Dr. Dawson testified that it
• 5:04
  Speaker 1: was his opinion that Morin was impaired and unsafe to
• 5:07
  Speaker 1: operate a motor vehicle. The court held that the state's
• 5:10
  Speaker 1: response disclosed nothing more than Dr. Dawson's qualifications, ID at 626.
• 5:16
  Speaker 1: The generic response vaguely described the subject matter, not the content,
• 5:21
  Speaker 1: of Dr. Dawson's anticipated testimony. The court held a mere
• 5:25
  Speaker 1: list of topics or general subject matter, which an expert
• 5:28
  Speaker 1: witness may testify is not a discovery response that complies
• 5:32
  Speaker 1: with this rule. The court also stated even if the
• 5:35
  Speaker 1: state did not know all the details of Dr. Dawson's
• 5:37
  Speaker 1: testimony at the time, Of the initial discovery response, ICR
• 5:42
  Speaker 1: 16J imposes a continuing duty to supplement the response if
• 5:47
  Speaker 1: a party later discovers or decides to use additional evidence.
• 5:51
  Speaker 1: Discovery rules are drafted to safeguard the truth-seeking function of trials.
• 5:55
  Speaker 1: The rules are designed to promote fairness and candor, facilitate
• 5:59
  Speaker 1: fair and expedient pretrial fact-gathering, and prevent surprises at trial.
• 6:04
  Speaker 1: Morin at 625, 1217, citing Edmonds v. Cranor, By way
• 6:10
  Speaker 1: of contrast, in State v. Koch, the defendant was charged
• 6:12
  Speaker 1: with lewd conduct with a minor, and the state filed
• 6:15
  Speaker 1: the following expert disclosure for an expert. Ms. Yeager's curriculum
• 6:17
  Speaker 1: vitae is attached. She'll testify to the dynamics of delayed
• 6:36
  Speaker 1: disclosures as it relates to child sexual abuse. The state
• 6:40
  Speaker 1: intends to elicit expert testimony from Mydel Yeager regarding behavior
• 6:45
  Speaker 1: of children who have become sexually abused, and Ms. Yeager
• 6:48
  Speaker 1: will testify that it's rare that a child immediately discloses
• 6:52
  Speaker 1: their sexual abuse, especially when they know the perpetrator. Ms.
• 6:56
  Speaker 1: Yeager will testify about the dynamics of child sexual abuse
• 7:00
  Speaker 1: as it relates to grooming a victim, keeping the abuse secret,
• 7:03
  Speaker 1: the effects and threats on whether a child chooses to disclose.
• 7:09
  Speaker 1: 157 Idaho 89, 93 and 94, 334 P. 280, 284 and 85, 2014.
• 7:17
  Speaker 1: Koch argued that the above disclosure was insufficient because it
• 7:21
  Speaker 1: failed to disclose Yeager's opinions and the facts and data
• 7:24
  Speaker 1: behind those opinions as required by ICR 16B7, Idea 93.
• 7:31
  Speaker 1: Koch also claimed that disclosure was insufficient because it did
• 7:35
  Speaker 1: not include a summary or report written by Yeager. The
• 7:39
  Speaker 1: Idaho Supreme Court disagreed. The Supreme Court held that disclosure
• 7:43
  Speaker 1: informed Koch of the main opinion to which Yeager was
• 7:46
  Speaker 1: going to testify, and while it did not specifically disclose
• 7:49
  Speaker 1: that Yeager's opinions were based on her training and experience,
• 7:53
  Speaker 1: which would be better practice, it did provide her curriculum
• 7:56
  Speaker 1: vitae as presumably disclosed her education and experience. Further, the
• 8:02
  Speaker 1: Idaho Supreme Court held that the state does not have
• 8:05
  Speaker 1: to produce a written report where none had previously existed,
• 8:08
  Speaker 1: stating if there is no data, the state doesn't have
• 8:11
  Speaker 1: to produce data. She is simply an opinion witness. Noting
• 8:15
  Speaker 1: that Koch could object if his testimony varied from the
• 8:19
  Speaker 1: state's disclosed summary. ID at 94 and 286. The Idaho
• 8:25
  Speaker 1: Supreme Court and Koch discussed the scope of ICR 16B7
• 8:29
  Speaker 1: disclosure requirements And look to federal rule of criminal procedures 16A, 1,
• 8:34
  Speaker 1: and G. The Supreme Court noted that the main difference
• 8:38
  Speaker 1: is that the federal rule requires the basis and reasons
• 8:41
  Speaker 1: for those opinions, whereas the Idaho rule requires the facts
• 8:44
  Speaker 1: and data for those opinions, suggesting that the federal rule
• 8:49
  Speaker 1: requires broader disclosure. The Idaho Supreme Court further noted that
• 8:53
  Speaker 1: the expert conclusions were adequately explored by defense counsel on
• 8:57
  Speaker 1: cross-examination with no particular difficulty. evidencing that the state's disclosure
• 9:03
  Speaker 1: was adequate. Idea 95. The goal of Rule 16 is
• 9:07
  Speaker 1: to provide the opponent with a fair opportunity to test
• 9:10
  Speaker 1: the merit of the expert's testimony through focused cross-examination. Citing
• 9:15
  Speaker 1: United States v. Lipscomb, 539 F. 3d, 3238 First Circuit, 2008.
• 9:22
  Speaker 1: In State v. Caswell, Caswell was charged with possession and
• 9:26
  Speaker 1: delivery of methamphetamine. The state discovered... a report by criminal
• 9:30
  Speaker 1: Donald Wyckoff who tested the controlled substance and determined it
• 9:34
  Speaker 1: was methamphetamine. At trial, Caswell objected to the introduction of
• 9:38
  Speaker 1: this report, claiming the state failed to provide him with
• 9:41
  Speaker 1: the working papers or graphs from which Wyckoff drew his
• 9:44
  Speaker 1: conclusions that the tested substance was methamphetamine. Five months before trial,
• 9:50
  Speaker 1: the state provided Caswell with Wyckoff's report, Exhibit C, containing
• 9:54
  Speaker 1: the test results and conclusions. the state did not provide
• 9:59
  Speaker 1: the working papers and graphs on which the conclusions were
• 10:02
  Speaker 1: based until requested a trial, 121 Idaho 801-803-828-P.2D-830-832-1992. On appeal,
• 10:05
  Speaker 1: the Idaho Supreme Court found that the state's disclosure, Exhibit C,
• 10:08
  Speaker 1: was adequate. All right, we're going to wrap up right here.
• 10:21
  Speaker 1: And in the next episode, we're going to pick up
• 10:22
  Speaker 1: with turning to the case at hand. All of the
• 10:25
  Speaker 1: information that goes with this episode can be found in
• 10:29
  Speaker 1: the description box. What's up, everyone? And welcome back to
• 10:32
  Speaker 1: the program. In this episode, we're getting right back to
• 10:35
  Speaker 1: the state of Idaho's objection to Brian Kohlberger's motion to
• 10:39
  Speaker 1: compel ICR material and for sanctions. Turning to the case
• 10:45
  Speaker 1: at hand on December 18th, 2024, the state disclosed 25
• 10:49
  Speaker 1: potential experts the state intends to call at trial. The
• 10:53
  Speaker 1: defendant takes issue with 22 of the disclosures claiming that
• 10:56
  Speaker 1: they are insufficient. All 25 of the state's disclosures comply
• 11:01
  Speaker 1: with the court's order and ICR 16B7 and are not
• 11:05
  Speaker 1: the generic discovery response as presented in Morin. All 25
• 11:09
  Speaker 1: disclosures encompass more than a mere list of topics or
• 11:13
  Speaker 1: general subject matter which an expert witness may testify. Morin
• 11:17
  Speaker 1: at 626. Each disclosure informs defendant of the main opinion
• 11:22
  Speaker 1: to which each expert will testify and the CV which
• 11:26
  Speaker 1: that opinion is based upon as required by Koch. For
• 11:30
  Speaker 1: experts where the state does not have a report as
• 11:32
  Speaker 1: further held by Koch, if there is no data, the
• 11:35
  Speaker 1: state doesn't have to produce data. The state addresses each
• 11:39
  Speaker 1: objection to the proposed disclosures as follows. For Exhibit S1
• 11:43
  Speaker 1: and S6, the state disclosed expert opinions regarding the toxicology
• 11:48
  Speaker 1: results for all decedents as detailed in the provided toxicology reports.
• 11:53
  Speaker 1: In addition, the state included the toxicologist's curriculum vitae, which
• 11:57
  Speaker 1: supported his or her opinions. This disclosure was not merely
• 12:02
  Speaker 1: a topic list of general subject matter, which the expert
• 12:05
  Speaker 1: may testify, as precluded by Morin. Instead, it's the main
• 12:09
  Speaker 1: opinion and the CV which supported the opinion as required
• 12:12
  Speaker 1: by Koch. As noted by the Koch court, the Idaho
• 12:16
  Speaker 1: rule is not as broad as the federal rule, which
• 12:20
  Speaker 1: requires the basis and reasons for those opinions, whereas the
• 12:24
  Speaker 1: Idaho rule requires the facts and data for those opinions.
• 12:29
  Speaker 1: States S-1 and S-6 disclosure satisfy the requirements of Rule 6B-7.
• 12:36
  Speaker 1: For Exhibit S2, the state disclosed Special Agent Balance. The
• 12:40
  Speaker 1: state's disclosure was adequately specific. For example, S2 states S.A.
• 12:44
  Speaker 1: Balance will provide his opinion as the general locations in
• 12:48
  Speaker 1: which the target cellular telephones were located at various times
• 12:53
  Speaker 1: before and after the homicides at 1122 King Road and
• 12:57
  Speaker 1: the cellular phone's directions of travel. The attached report detailed
• 13:02
  Speaker 1: the target cellular phone's analyzed The dates analyzed and the
• 13:05
  Speaker 1: direction of travel. In addition, defense was directed to the
• 13:08
  Speaker 1: cell phone records provided by AT & T and the
• 13:11
  Speaker 1: drive testing files which support the report. The defendant appears
• 13:16
  Speaker 1: to be requiring compliance with the federal standard, which is
• 13:19
  Speaker 1: much more broad than ICR 16B7. The state's disclosure provides
• 13:24
  Speaker 1: defendant with adequate notice of balance anticipated testimony to satisfy
• 13:29
  Speaker 1: the requirements of ICR 16B7. For Exhibit S3 and S4,
• 13:36
  Speaker 1: defendant correctly agrees these disclosures meet ICR 16B7 requirements. For
• 13:43
  Speaker 1: Exhibits S5 and S7, the state disclosed two likely fact
• 13:46
  Speaker 1: witnesses as expert out of an abundance of caution and
• 13:50
  Speaker 1: was clear about this intent. The defendant's argument that the
• 13:53
  Speaker 1: state erred in its good faith disclosure is without merit.
• 13:57
  Speaker 1: In the event either of these witnesses are in fact
• 14:00
  Speaker 1: expert within the meaning of ICR 16B7 requirements, It's clear
• 14:04
  Speaker 1: from each disclosure exactly what these witnesses will testify to
• 14:08
  Speaker 1: based upon the provided disclosures. For Exhibit S8, the state
• 14:12
  Speaker 1: disclosed the vehicle identification expert S.A. Immel. The disclosure specifies
• 14:17
  Speaker 1: that he will testify to his use of Forensic Audio-Video
• 14:21
  Speaker 1: and Image Analysis Program. The Forensic Audio-Video and Image Analysis
• 14:27
  Speaker 1: Program was used to determine whether the make, model, and
• 14:30
  Speaker 1: year of a suspected vehicle involved in the 1122 King
• 14:34
  Speaker 1: Road Burglary and Homicides in Moscow, Idaho on or about
• 14:38
  Speaker 1: November 13, 2022. It's clear from the disclosure that this
• 14:43
  Speaker 1: witness is an expert in vehicle identification. Defendant has repeatedly
• 14:48
  Speaker 1: been provided the images relied upon which are detailed in
• 14:51
  Speaker 1: his report of examination which was attached to the state's disclosure.
• 14:56
  Speaker 1: See S8A page 1. The state's disclosure provides defendant with
• 15:01
  Speaker 1: adequate notice of S.A. Immel's anticipated testimony to satisfy the
• 15:06
  Speaker 1: requirements of ICR 16B7. For Exhibit S9, the state disclosed
• 15:11
  Speaker 1: Kathy Mabbitt, the Latah County Coroner. The state specially detailed
• 15:16
  Speaker 1: each opinion to be proffered. The opinions were supported by
• 15:19
  Speaker 1: the attached death certificates authored by the coroner and the
• 15:22
  Speaker 1: coroner's CV. The defendant fails to mention that in addition
• 15:27
  Speaker 1: to being an attorney, and an elected coroner, Ms. Mabbitt,
• 15:30
  Speaker 1: was a registered nurse for 44 years, which is detailed
• 15:34
  Speaker 1: in her CV. The state's expert disclosure satisfies the requirements
• 15:38
  Speaker 1: of ICR 16B7. For Exhibit S10, S13, and S14, the
• 15:45
  Speaker 1: state disclosed forensic detectives. These disclosures specifically listed each forensic
• 15:50
  Speaker 1: item with the witnesses who would testify regarding the witness expertise,
• 15:55
  Speaker 1: is the process of extracting and identifying the data, that
• 15:58
  Speaker 1: is on each of the listed devices. The contents of
• 16:02
  Speaker 1: each of these devices have been disclosed to defendant. Any
• 16:06
  Speaker 1: opinion related to the extraction, i.e. whether a connection was
• 16:10
  Speaker 1: found or not, is not an expert opinion. As a result,
• 16:13
  Speaker 1: the disclosures meet the requirement of Rule 16b-7. For Exhibit S-12,
• 16:19
  Speaker 1: the state disclosed an expert on crime scene reconstruction and
• 16:23
  Speaker 1: bloodstain pattern analysis. The state specifically detailed each opinion to
• 16:28
  Speaker 1: be proffered. The opinions were supported by attached reference report NCV.
• 16:33
  Speaker 1: The state's disclosure provides defendant with adequate notice of this
• 16:37
  Speaker 1: expert's anticipated testimony to satisfy the requirements of ICR 16B7.
• 16:43
  Speaker 1: As noted by the Koch court, the defendant has identified
• 16:47
  Speaker 1: areas through the disclosure for cross-examination which only evidences the
• 16:51
  Speaker 1: adequacy of the disclosure. Defense should be able to cross-examine
• 16:56
  Speaker 1: with no particular difficulty, satisfying the goal of Rule 16,
• 17:00
  Speaker 1: Coke at 95, 286. Exhibit S15 through S25 all relate
• 17:07
  Speaker 1: to Idaho State Police forensic lab experts. First, the defendant
• 17:11
  Speaker 1: claims not a single DNA expert opinion or report was produced.
• 17:15
  Speaker 1: This is simply not true. In each of these responses,
• 17:18
  Speaker 1: the state refers the defendant to specific lab reports and
• 17:22
  Speaker 1: the corresponding Bates numbers. The defendant's apparent argument that the
• 17:27
  Speaker 1: state is required to make duplicative disclosures is unsupported. A
• 17:31
  Speaker 1: simple reference to where a defendant can find the report
• 17:34
  Speaker 1: is adequate. Each report provides a basis to determine what
• 17:39
  Speaker 1: the expert's opinion is through the referenced lab report. For example,
• 17:43
  Speaker 1: the state is attaching Bates 9323-9354 for the court's review
• 17:49
  Speaker 1: of how these disclosures comply with the requirements of ICR 16B7.
• 17:55
  Speaker 1: See Exhibit S1 attached. The state follows suit in disclosures
• 17:59
  Speaker 1: S16 through S20 and S22 through S25. The state's expert
• 18:05
  Speaker 1: disclosures regarding lab experts satisfy the requirements of ICR 16B7.
• 18:12
  Speaker 1: For S21, the state disclosed Ryleen Nowlin as an expert.
• 18:15
  Speaker 1: It's anticipated that this witness is actually a rebuttal witness
• 18:19
  Speaker 1: who is prepared to testify regarding secondary transfer if necessary.
• 18:24
  Speaker 1: The state contends the notice provided is sufficient pursuant to
• 18:28
  Speaker 1: Rule 16B7, but reserves the right to amend this disclosure
• 18:32
  Speaker 1: upon review of the defendant's guilt phase experts and pending
• 18:35
  Speaker 1: discovery disclosure. As required by Rule 16J, the state will
• 18:40
  Speaker 1: continue to supplement the response if the state later discovers
• 18:44
  Speaker 1: or decides to use additional evidence. Lastly, if the court
• 18:48
  Speaker 1: determines that any of the disclosed expert disclosures do not
• 18:52
  Speaker 1: meet the requirements of Rule 16B7, 16b7b, the state will
• 18:56
  Speaker 1: promptly amend. Any contention that the defendant has been prejudiced
• 19:01
  Speaker 1: or does not have adequate time to respond is wholly unsupported.
• 19:05
  Speaker 1: The defendant's request for sanctions is premature and without merit.
• 19:10
  Speaker 1: Defendant complains and appears to represent that he has not
• 19:14
  Speaker 1: been provided with adequate information from the state. This is
• 19:17
  Speaker 1: patently untrue. by way of example, to appreciate the true
• 19:21
  Speaker 1: degree of analysis and use the defendant of discovery that
• 19:24
  Speaker 1: has been provided, the court need look no further than
• 19:27
  Speaker 1: the extensive detail in the defendant's motion for Frank's hearing,
• 19:32
  Speaker 1: the 20-plus supplemental discovery requests and related materials, and the
• 19:36
  Speaker 1: many other detailed, substantive motions that he has filed. In
• 19:41
  Speaker 1: an abundance of caution, the state included witnesses that the
• 19:44
  Speaker 1: state does not label as technically experts. within the meaning
• 19:48
  Speaker 1: of ICR 16B7. but anticipates that the defendant might disagree. Conclusion.
• 19:55
  Speaker 1: The state respectfully requests that the court deny defendant's motion
• 19:59
  Speaker 1: to compel ICR 16B7 material and for sanctions based upon
• 20:04
  Speaker 1: the filings in the case, pursuant to the 4th Judicial
• 20:08
  Speaker 1: District Rule 5.3, the state is not requesting a hearing
• 20:11
  Speaker 1: on this matter. Respectfully submitted this 31st day of December, 2024,
• 20:17
  Speaker 1: and signed by Ashley Jennings. All right, folks, and as
• 20:21
  Speaker 1: you can see, we are off and running now with
• 20:24
  Speaker 1: this new paperwork when it comes to Kohlberger, and there
• 20:26
  Speaker 1: is a lot to get to. There have been a
• 20:29
  Speaker 1: lot of court filings as of late, and a lot
• 20:31
  Speaker 1: of consequential court filings. So buckle up, get yourselves a
• 20:36
  Speaker 1: few snacks and a couple of drinks, because we're headed
• 20:39
  Speaker 1: back to Moscow. All the information that goes with this
• 20:43
  Speaker 1: episode can be found in the description box. What's up, everyone,
• 20:47
  Speaker 1: and welcome back to the program. While there hasn't been
• 20:51
  Speaker 1: much information about the Brian Koberger trial in the media
• 20:56
  Speaker 1: as far as stories on a regular basis, there's been
• 20:59
  Speaker 1: a lot going on behind the scenes when it comes
• 21:02
  Speaker 1: to court documents. And while we haven't really been discussing
• 21:06
  Speaker 1: the going-ons inside of the courtroom, I've been following along
• 21:10
  Speaker 1: and taking note of the arguments and both sides trying
• 21:14
  Speaker 1: to make their case in front of Judge Hippler. And
• 21:17
  Speaker 1: considering that we're going to be getting to this trial
• 21:20
  Speaker 1: pretty soon now, I think it's time that we dive
• 21:23
  Speaker 1: back in and get caught up on what's going on
• 21:26
  Speaker 1: up in Moscow with Brian Koberger. And right now, the
• 21:30
  Speaker 1: argument is over sanctions, or possible sanctions, that Brian Koberger's
• 21:35
  Speaker 1: team wants to bring against the prosecution. So, we're going
• 21:39
  Speaker 1: to start there. Case number, CR01-24-31665. State of Idaho, Plaintiff vs.
• 21:49
  Speaker 1: Brian C. Koberger, the Defendant. Motion to compel ICR, which
• 21:54
  Speaker 1: stands for Idaho Criminal Rules... 16B7 material and for sanctions.
• 22:01
  Speaker 1: Comes now, Brian Kohlberger by and through his attorneys of
• 22:04
  Speaker 1: record and hereby moves this honorable court for an order
• 22:07
  Speaker 1: to compel complete expert disclosures from the state in this
• 22:11
  Speaker 1: matter and request sanctions pursuant to ICR 16K. The bulk
• 22:16
  Speaker 1: of the state's expert disclosures fail to include opinions and reports.
• 22:20
  Speaker 1: These inadequate disclosures greatly prejudice Mr. Kohlberger, who is obligated
• 22:24
  Speaker 1: to submit defense guilt phase expert disclosures by January 23, 2025.
• 22:29
  Speaker 1: The sanctions considered must be the exclusion of the experts,
• 22:35
  Speaker 1: or at a bare minimum, an order compelling proper disclosure
• 22:38
  Speaker 1: and an extension of Mr. Kohlberger's January 23, 2025 deadline. Mr.
• 22:44
  Speaker 1: Kohlberger is prejudiced because he does not know what expert
• 22:47
  Speaker 1: evidence the state intends to elicit. He does not know
• 22:51
  Speaker 1: what expert evidence he must confront. Relevant facts. In this case,
• 22:55
  Speaker 1: there are over 68 terabytes of discovery produced in a
• 22:58
  Speaker 1: method that the defense has repeatedly referenced in pleadings and
• 23:02
  Speaker 1: at various motion hearings as extremely disorganized. There have been
• 23:07
  Speaker 1: 20 specific requests for discovery and six motions to compel
• 23:11
  Speaker 1: filed by the defense. The court entered a redacted order
• 23:15
  Speaker 1: governing further criminal proceedings and notice of trial setting on
• 23:18
  Speaker 1: October 9th 2024, and has notified the parties that strict
• 23:22
  Speaker 1: compliance with the court's order is expected. On December 18, 2024,
• 23:27
  Speaker 1: the state disclosed 25 experts. Of those, only five include
• 23:32
  Speaker 1: actual expert reports. Notably, not a single DNA expert opinion
• 23:36
  Speaker 1: or report was produced. Instead, the state disclosures refer to
• 23:40
  Speaker 1: Bates-numbered pages and say, this disclosure is provided as an aid.
• 23:45
  Speaker 1: It does not encompass all findings, impressions, conclusions, or materials
• 23:49
  Speaker 1: related to this expert's involvement in this case. It further
• 23:53
  Speaker 1: does not in any way limit the scope of the
• 23:55
  Speaker 1: expert's testimony. Further, this expert may testify about findings, impressions,
• 24:00
  Speaker 1: and or conclusions that he or she drew from the
• 24:03
  Speaker 1: work of other experts who previously examined or handled the
• 24:07
  Speaker 1: evidence in question. At least three digital forensic experts are
• 24:11
  Speaker 1: disclosed with lists of 67 electronic devices or third-party databases examined.
• 24:17
  Speaker 1: Not a single report of what the three experts will
• 24:20
  Speaker 1: opine related to any specific device or data is disclosed.
• 24:25
  Speaker 1: The argument. This is a capital murder case, and nothing
• 24:29
  Speaker 1: about it is clear-cut. The expert issues are complex, involving
• 24:33
  Speaker 1: many different facets of DNA, cellular data, cell tower coverage,
• 24:38
  Speaker 1: and drive testing. car identification, crime scene and blood spatter analysis,
• 24:43
  Speaker 1: fingerprint analysis, forensic pathology and electronic device analysis of the suspect, victims,
• 24:49
  Speaker 1: and alternative suspects, and social media accounts. At issue is
• 24:54
  Speaker 1: a state supplemental response to request for discovery regarding expert
• 24:57
  Speaker 1: testimony and its exhibits, filed December 18, 2024. The disclosure
• 25:03
  Speaker 1: lists 25 experts and provides curricula vitae, 5 with expert
• 25:08
  Speaker 1: opinion reports, and others with reference debates numbered pages or items,
• 25:12
  Speaker 1: but no opinion, data, or methodology. What the state's disclosure
• 25:17
  Speaker 1: does not do is follow the rule, which states, expert witnesses,
• 25:22
  Speaker 1: on written request of the defendant, the prosecutor, must provide
• 25:25
  Speaker 1: a written summary or report of any testimony in that
• 25:28
  Speaker 1: the state intends to introduce a trial or at a
• 25:31
  Speaker 1: hearing pursuant to the Rules 702, 703, or 705 of
• 25:36
  Speaker 1: the Idaho Rules of Evidence. The summary provided must describe
• 25:40
  Speaker 1: the witness opinions, the facts and data for those opinions,
• 25:43
  Speaker 1: and the witnesses' qualifications. Disclosure of expert opinions regarding mental
• 25:48
  Speaker 1: health must also comply with the requirements of Idaho Code
• 25:51
  Speaker 1: Section 18-207. The prosecution is not required to produce any
• 25:57
  Speaker 1: materials not subject to disclosure under subsection G of this rule.
• 26:01
  Speaker 1: This subsection does not require disclosure of expert witnesses, their opinions,
• 26:06
  Speaker 1: the facts and data for those opinions, or the witnesses'
• 26:09
  Speaker 1: qualifications intended only to rebut evidence or theories that have
• 26:13
  Speaker 1: not been disclosed under the rule prior to trial. As
• 26:17
  Speaker 1: the Court of Appeals held, The plain text of Rule
• 26:20
  Speaker 1: 16b-7 requires the disclosure of expert witnesses, opinions, the facts
• 26:25
  Speaker 1: and data for those opinions, and also any testimony that
• 26:28
  Speaker 1: the state intends to introduce pursuant to Rule 702, 703,
• 26:33
  Speaker 1: or 705 of the Idaho Rules of Evidence that encompasses
• 26:38
  Speaker 1: not only expert opinion, but also scientific, technical, or other
• 26:42
  Speaker 1: specialized knowledge to which a qualified witness may testify in
• 26:46
  Speaker 1: a form other than an opinion. See IRE 702. State v.
• 26:51
  Speaker 1: Morin 158, Idaho 622-625, 2015. As the court explained in Morin,
• 26:59
  Speaker 1: when an expert relies on some form of scientific or
• 27:01
  Speaker 1: technical information, that must be disclosed, as opposed to other
• 27:05
  Speaker 1: witnesses whose opinions may be of less scientific variety. The
• 27:10
  Speaker 1: discovery rules are designed to safeguard the truth-seeking functions of trials,
• 27:14
  Speaker 1: promote fairness and candor, to facilitate fair and expedited pretrial fact-gathering,
• 27:19
  Speaker 1: and to prevent surprise at trial. ID at 626. Mr.
• 27:24
  Speaker 1: Koberger is filing Exhibit A under seal, containing specific issues
• 27:29
  Speaker 1: with the disclosures. Courtesy copies will be provided via email
• 27:33
  Speaker 1: to opposing counsel and court staff on the date of
• 27:36
  Speaker 1: this motion and hand-delivered to the court on 2 January 2025.
• 27:41
  Speaker 1: If the state violates disclosure requirement under ICR 16B6, the
• 27:47
  Speaker 1: trial court has considerable discretion to fashion an appropriate 16K remedy.
• 27:53
  Speaker 1: State v. Montgomery 163, Idaho 40, 2017 Mr. Koberger continues
• 28:00
  Speaker 1: wading through a sea of discovery. The need for rule-compliant
• 28:04
  Speaker 1: expert disclosures is critical to his ability to prepare for
• 28:07
  Speaker 1: his defense at trial. The state's failure to comply is
• 28:10
  Speaker 1: not harmless. Conclusion. Mr. Koberger must be able to confront
• 28:15
  Speaker 1: the evidence against him, and to do that, it must
• 28:17
  Speaker 1: be disclosed in accordance with Idaho Rule 16 and this
• 28:21
  Speaker 1: court's trial-setting order. The expert evidence disclosed by the state
• 28:25
  Speaker 1: is woefully inadequate. This is a capital murder case and
• 28:29
  Speaker 1: compliance with the rules of discovery are not optional. Mr.
• 28:33
  Speaker 1: Kohlberger is prejudiced by the state's failure. It's impossible for
• 28:37
  Speaker 1: him to confront unknown expert opinions with his own expert
• 28:40
  Speaker 1: disclosures by January 23rd, 2025. This document was dated December 27th, 2024,
• 28:48
  Speaker 1: and it was signed by Ann Taylor and J. Weston Logsdon.
• 28:52
  Speaker 1: All right, so that's going to do it for that
• 28:55
  Speaker 1: motion to compel. And in the next episode, we're going
• 28:58
  Speaker 1: to dive into the state's objection to the defendant's motion
• 29:02
  Speaker 1: to compel. And like I said in the opening, there
• 29:04
  Speaker 1: is a lot to get to. There's been a lot
• 29:06
  Speaker 1: going on here in Moscow over the past few months
• 29:09
  Speaker 1: that really hasn't made its way into the newspapers. So
• 29:13
  Speaker 1: we're going to be diving deep over the next few
• 29:15
  Speaker 1: weeks getting caught up. And I think that there have
• 29:18
  Speaker 1: been some significant developments in this story as far as
• 29:21
  Speaker 1: evidence goes. And it's also going to be pretty interesting
• 29:24
  Speaker 1: to go and take a look at some of the
• 29:26
  Speaker 1: stuff we talked about previously when this all was first
• 29:29
  Speaker 1: going down and some of those warrants that we talked
• 29:32
  Speaker 1: about and see how Brian Koberger's team has challenged those
• 29:36
  Speaker 1: warrants over the past six months or so, because there
• 29:39
  Speaker 1: really hasn't been much going on. Now, of course, if
• 29:43
  Speaker 1: you're following the docket, there's plenty going on. But if
• 29:46
  Speaker 1: you're somebody who hasn't really been following along behind the scenes,
• 29:50
  Speaker 1: then there's no doubt that there's a lot of information
• 29:53
  Speaker 1: to catch up on. And hopefully over the next few weeks,
• 29:56
  Speaker 1: we can get caught up completely and to where things
• 29:59
  Speaker 1: currently stand as far as the court case goes behind
• 30:02
  Speaker 1: the scenes. And to say that Ann Taylor and Brian
• 30:06
  Speaker 1: Koberger's team is doing anything but throw in the kitchen
• 30:09
  Speaker 1: sink at the prosecution is an understatement. They're doing everything
• 30:13
  Speaker 1: in their power to try and get Brian Koberger off.
• 30:16
  Speaker 1: Is it going to be successful? I have my doubts.
• 30:20
  Speaker 1: But that doesn't mean that there isn't something that's going
• 30:22
  Speaker 1: to pop up during discovery. And that's what all of
• 30:25
  Speaker 1: these motions are trying to figure out what's going to
• 30:27
  Speaker 1: be evidence, what they can use to maybe help their client.
• 30:31
  Speaker 1: And then other things they're going to try and get
• 30:33
  Speaker 1: thrown out on whatever sort of grounds they can find.
• 30:37
  Speaker 1: This was collected illegally. This wasn't, you know, stored correctly,
• 30:42
  Speaker 1: whatever it might be. They're going to explore all of that.
• 30:45
  Speaker 1: And as they continue to dig into what the prosecution
• 30:48
  Speaker 1: has brought forward so far, their hope is that they're
• 30:51
  Speaker 1: going to be able to destroy the credibility of not
• 30:53
  Speaker 1: only the evidence, but the people who collected it. So
• 30:56
  Speaker 1: that's where things currently stand as of now. And hopefully
• 30:59
  Speaker 1: over the next few weeks, we can get a clearer
• 31:01
  Speaker 1: picture of exactly where things stand. But that's going to
• 31:06
  Speaker 1: do it for this one. All of the information that
• 31:08
  Speaker 1: goes with this episode can be found in the description box.
• 31:12
  Speaker 1: What's up everyone and welcome back to the program. Just
• 31:16
  Speaker 1: when I thought that the prosecution up in Idaho was
• 31:19
  Speaker 1: doing the right thing, and just when I thought that
• 31:22
  Speaker 1: the state had all their ducks in a row, only
• 31:24
  Speaker 1: to find out that somebody is leaking information to the media.
• 31:31
  Speaker 1: And as you all know, I am not a fan
• 31:33
  Speaker 1: of prosecutorial misconduct. And I think that the prosecution team,
• 31:38
  Speaker 1: if it's found out that they are behind these leaks,
• 31:41
  Speaker 1: or if anyone connected to the investigation in an official
• 31:44
  Speaker 1: capacity is behind these leaks, then I think there should
• 31:48
  Speaker 1: be some serious, serious sanctions for the prosecution. Now, what
• 31:52
  Speaker 1: those sanctions might be, I don't know. But there are
• 31:55
  Speaker 1: some legal experts that are saying that all the evidence
• 31:59
  Speaker 1: that came with that leak should get thrown out. Now,
• 32:03
  Speaker 1: I don't know if that's going to be what ends
• 32:05
  Speaker 1: up happening here, but I have a funny feeling that
• 32:09
  Speaker 1: this leak has really opened up a can of worms. So,
• 32:13
  Speaker 1: let's dive into this article from Fox News and let's
• 32:16
  Speaker 1: see where things currently stand. Headline, Brian Kohlberger case leak
• 32:22
  Speaker 1: could lead to excluded evidence, Idaho attorney warns. This article
• 32:26
  Speaker 1: was authored by Adam Sabes and Michael Ruiz. An Idaho-based
• 32:32
  Speaker 1: lawyer said she thinks Judge Stephen Hippler will absolutely hold
• 32:36
  Speaker 1: prosecutors and law enforcement accountable for after sensitive information about
• 32:40
  Speaker 1: the Brian Koberger quadruple murder case was leaked. And they should.
• 32:44
  Speaker 1: I don't know how many times I have to say it,
• 32:47
  Speaker 1: but I guess I'll say it again. The prosecution holds
• 32:50
  Speaker 1: so much power in their hands, they can't cut any corners.
• 32:54
  Speaker 1: They have to do everything by the book. And if
• 32:56
  Speaker 1: they don't, especially in a capital murder case, there needs
• 33:00
  Speaker 1: to be ramifications. The only question here is, how far
• 33:04
  Speaker 1: is Judge Hipler going to go? because I don't think
• 33:07
  Speaker 1: he's going to just sit by and let this slide.
• 33:10
  Speaker 1: He's not that kind of judge, and Idaho has shown
• 33:12
  Speaker 1: us previously that they don't take kindly to this kind
• 33:15
  Speaker 1: of shit. Just take a look at what happened with
• 33:17
  Speaker 1: Lori Vallow. A TV episode about the murders of four
• 33:22
  Speaker 1: University of Idaho students was aired on May 9th and
• 33:25
  Speaker 1: featured new cell phone records, surveillance video, search records, and more.
• 33:31
  Speaker 1: Kohlberger is accused of killing Zanna Kernodle Kaylee Gonsalves, Madison Mogan,
• 33:36
  Speaker 1: and Ethan Chapin. Now, look, we have to make sure
• 33:39
  Speaker 1: that these leaks came from law enforcement, but where else
• 33:42
  Speaker 1: could they come from? Now, maybe somebody connected to the
• 33:46
  Speaker 1: case had access, but I doubt it. And now with
• 33:50
  Speaker 1: Judge Hippler initiating this investigation, I think that they're going
• 33:55
  Speaker 1: to get to the bottom of who this leak came from.
• 33:57
  Speaker 1: And when they do, He's going to drop the hammer
• 34:00
  Speaker 1: on that person and probably on the prosecution in general.
• 34:04
  Speaker 1: And as strong of a case as I think they've built,
• 34:06
  Speaker 1: I also believe that Brian Koberger has rights that have
• 34:10
  Speaker 1: to be respected. And if the state steps out of
• 34:12
  Speaker 1: line and they're committing constitutional errors, then there's going to
• 34:17
  Speaker 1: be big problems. Now, of course, we have to wait
• 34:20
  Speaker 1: for the investigation, right? We don't know. But I will
• 34:23
  Speaker 1: say this, we do know that there were leaks, one
• 34:26
  Speaker 1: way or the other. How else did Dateline get that information?
• 34:31
  Speaker 1: New information about the murders was shared during the May
• 34:34
  Speaker 1: 9th NBC Dateline program, which included surveillance video from a
• 34:38
  Speaker 1: nearby house. The surveillance video showed a car, similar to Kohlberger's,
• 34:43
  Speaker 1: that was in the area of the King Road house
• 34:45
  Speaker 1: several times, just before the four students were killed. And
• 34:49
  Speaker 1: why would somebody even leak this information at this point?
• 34:52
  Speaker 1: What do you have to gain by it? I don't
• 34:55
  Speaker 1: understand the motivation. Like, you want to throw the whole
• 34:58
  Speaker 1: thing into jeopardy because you want to get this information
• 35:01
  Speaker 1: out there? Now, if they were blowing the whistle on
• 35:03
  Speaker 1: some prosecutorial misconduct, then that would be one thing. But
• 35:07
  Speaker 1: this is a whole different thing entirely. And what they're
• 35:10
  Speaker 1: doing is they're giving over sensitive, gagged information that was
• 35:14
  Speaker 1: never meant for public consumption. And in doing so, they
• 35:18
  Speaker 1: have tilted the table against Brian Kohlberger. Or at the
• 35:22
  Speaker 1: very least, opened the door for his team to say
• 35:25
  Speaker 1: that that's happening. And they're already doing so. The program
• 35:29
  Speaker 1: also claimed that the FBI's cell phone tower data showed
• 35:32
  Speaker 1: that Kohlberger's cell phone pinged nearly a dozen times to
• 35:35
  Speaker 1: a tower that provides coverage to an area within 100
• 35:39
  Speaker 1: feet of 1122 King Road, where he allegedly killed the
• 35:43
  Speaker 1: four students. Well, we knew that previously. We had heard that. Now,
• 35:47
  Speaker 1: maybe this was some kind of confirmation. And if it was,
• 35:50
  Speaker 1: it really goes to the heart of the matter entirely
• 35:54
  Speaker 1: because you can't confirm or deny anything that's going on
• 35:57
  Speaker 1: in that courtroom due to the gag order. And whether
• 36:00
  Speaker 1: you agree with the gag order or not is neither
• 36:03
  Speaker 1: here nor there. What matters is the gag order is
• 36:06
  Speaker 1: in place and you have to follow the order that's
• 36:09
  Speaker 1: been put forth by the court. And if you don't,
• 36:12
  Speaker 1: you have to expect that you're going to get slapped.
• 36:15
  Speaker 1: Edwina Elcox, a criminal defense attorney in Boise, Idaho, told
• 36:19
  Speaker 1: Fox News Digital she thinks Hipler is taking the leak
• 36:22
  Speaker 1: very seriously. I think prosecutors and law enforcement will absolutely
• 36:27
  Speaker 1: be held accountable, Elcox said, noting she has worked on
• 36:31
  Speaker 1: cases with Hipler as the judge. Elcox said she absolutely
• 36:36
  Speaker 1: thinks it's possible for evidence presented during the TV episode
• 36:40
  Speaker 1: to be excluded in court. And I certainly think that
• 36:43
  Speaker 1: that's a possibility. We know that Judge Hippler is not
• 36:47
  Speaker 1: the kind of guy that wants to play games. So
• 36:49
  Speaker 1: it's going to be interesting to see what the penalty is,
• 36:52
  Speaker 1: if there's a penalty, after this investigation. But if and
• 36:56
  Speaker 1: when it comes back that there was a leak, I
• 36:58
  Speaker 1: expect the punishment to be severe. I really do. And
• 37:02
  Speaker 1: I think that he's going to set a precedent moving forward,
• 37:05
  Speaker 1: not only for this case, but cases that come after it.
• 37:08
  Speaker 1: And at this point, how many times have we seen
• 37:10
  Speaker 1: prosecutors absolutely screw things up? So yeah, we have a
• 37:15
  Speaker 1: long way to go when it comes to Brian Koberger,
• 37:17
  Speaker 1: and I think the evidence is very strong against him,
• 37:21
  Speaker 1: but the prosecutors might be getting in their own way.
• 37:24
  Speaker 1: And if I was one of these family members, I'd
• 37:26
  Speaker 1: have some severe reservations after this whole entire ordeal. Can
• 37:31
  Speaker 1: you imagine if the remedy for this was all the
• 37:34
  Speaker 1: evidence being excluded, Alcock said? I absolutely think that that's
• 37:38
  Speaker 1: in the realm of remedies. Now, I don't think it's
• 37:40
  Speaker 1: going to go that far, but I think there's going
• 37:42
  Speaker 1: to be penalties. What those penalties are going to be, well,
• 37:46
  Speaker 1: I think that's going to depend on what the investigation
• 37:49
  Speaker 1: turns up. But I have no doubt whatsoever that the
• 37:52
  Speaker 1: investigation is going to find something. And when they do,
• 37:56
  Speaker 1: it's going to be a bombshell. Not only should it
• 38:00
  Speaker 1: never happen under any circumstances, there was a gag order,
• 38:04
  Speaker 1: she added. Hipler said Thursday in an order that the
• 38:07
  Speaker 1: court's gag order was likely violated by someone who at
• 38:11
  Speaker 1: one point was associated with either law enforcement or the
• 38:15
  Speaker 1: prosecution team. So if it's somebody who's a former member
• 38:19
  Speaker 1: of the team, then I'm not too sure how the
• 38:22
  Speaker 1: judge is going to go about handing down some kind
• 38:25
  Speaker 1: of penalty for that. Because if it's somebody that was
• 38:28
  Speaker 1: formerly on the team, maybe they'll just be punished and
• 38:32
  Speaker 1: not the prosecution. Now, if it's an active member of
• 38:35
  Speaker 1: the prosecution or law enforcement, I think that the penalties
• 38:39
  Speaker 1: have to be severe. Now, what those penalties are going
• 38:42
  Speaker 1: to be, that's going to be up to interpretation by
• 38:45
  Speaker 1: the judge. But I think they're going to be severe.
• 38:48
  Speaker 1: And I think that it's going to hamper the prosecution's
• 38:50
  Speaker 1: case moving forward at least a little bit, especially in
• 38:54
  Speaker 1: the optics department. because it gives it that tinge of, well,
• 38:58
  Speaker 1: maybe something isn't right here. Maybe they're trying to railroad
• 39:01
  Speaker 1: Brian Kohlberger, and we all know how the grifters love
• 39:04
  Speaker 1: to latch on to some shit like that. You're opening
• 39:07
  Speaker 1: the door for some real serious nonsense here, and you
• 39:10
  Speaker 1: better believe that the carnival barkers are going to walk
• 39:13
  Speaker 1: right through that door. Hipler ordered anyone who worked with
• 39:17
  Speaker 1: either law enforcement or a prosecution on this case to
• 39:20
  Speaker 1: retain all communication and data relating to the murder investigation.
• 39:25
  Speaker 1: Such violations not only undermine the rule of law, potentially
• 39:29
  Speaker 1: by person. charged with upholding it, but also significantly impede
• 39:33
  Speaker 1: the ability to seat an impartial jury and will likely
• 39:37
  Speaker 1: substantially increase the cost to be borne by the taxpayers
• 39:40
  Speaker 1: of Latah County to prosecute this case by extending the
• 39:44
  Speaker 1: time it will take to seat a jury and potentially
• 39:47
  Speaker 1: requiring lengthy period of the jurors being sequestered, Hipler wrote.
• 39:52
  Speaker 1: Hipler also said he's open to appointing a special prosecutor
• 39:56
  Speaker 1: who'd investigate where the leak came from, but hasn't made
• 39:59
  Speaker 1: a decision. He gave a seven-day deadline of prosecutors who
• 40:03
  Speaker 1: were ordered to submit a list on camera of all
• 40:07
  Speaker 1: individuals within law enforcement and the prosecuting agencies that have
• 40:11
  Speaker 1: access to the information shared in the episode. The Idaho
• 40:16
  Speaker 1: Statesman investigative reporter, Kevin Fixler, told Fox News America Reports
• 40:21
  Speaker 1: he was surprised when the Dateline episode aired. Yeah, so
• 40:23
  Speaker 1: was I. I mean, I couldn't believe that they were
• 40:26
  Speaker 1: airing the information that they aired, considering the gag order,
• 40:30
  Speaker 1: and I was wondering and saying to myself, where the
• 40:31
  Speaker 1: hell did they get this information? Well, now we know.
• 40:35
  Speaker 1: According to the court, it was because of a leak.
• 40:39
  Speaker 1: I've been on this case since literally day one, and
• 40:42
  Speaker 1: this was a surprise. A lot of this information that
• 40:45
  Speaker 1: was released just two and a half months before trial.
• 40:48
  Speaker 1: So we're trying to better understand where that came from,
• 40:50
  Speaker 1: Fixler said. And what's the motivation? I think that's an
• 40:54
  Speaker 1: important part that's not being discussed. What's the motivation for
• 40:58
  Speaker 1: releasing something like this? Forensic expert, the Jacksonville State University professor,
• 41:04
  Speaker 1: Joseph Scott Morgan, told Fox News Digital, there's a risk
• 41:08
  Speaker 1: that the TV episode on Kohlberger will tank the jury pool.
• 41:12
  Speaker 1: I think the first place you have to look is
• 41:14
  Speaker 1: the tainting of the pool of the jury pool, Morgan said. Progressively,
• 41:19
  Speaker 1: it becomes more and more difficult because people form opinions,
• 41:22
  Speaker 1: they put things out there that are not true, and
• 41:25
  Speaker 1: you still have to pick a jury. And it's not
• 41:27
  Speaker 1: like you're going to Manhattan. You're talking about Ada County, Idaho.
• 41:31
  Speaker 1: You have a limited pool of potential jurors there. Yeah,
• 41:34
  Speaker 1: that might be the case, but I don't think that
• 41:37
  Speaker 1: it's going to matter one way or the other when
• 41:39
  Speaker 1: we're talking about a tainted jury pool. And I've said
• 41:41
  Speaker 1: that a million times. I think it's overblown. And that's
• 41:44
  Speaker 1: because of the information bubble that we live in. Everybody
• 41:47
  Speaker 1: knows everything these days. And whether it's the Dateline episode
• 41:51
  Speaker 1: or something else, people are going to have opinions about
• 41:54
  Speaker 1: Brian Koberger. They need to find out who's inside that
• 41:58
  Speaker 1: investigative bubble that would release all this digital data because
• 42:02
  Speaker 1: you're talking about a copious amount, not just about a
• 42:05
  Speaker 1: new video that we're seeing that we've never seen before,
• 42:08
  Speaker 1: Morgan added. And he's not wrong. There's a lot of
• 42:11
  Speaker 1: information that was released here, and it needs to be
• 42:13
  Speaker 1: sessed out. Morgan said the leak might have the biggest
• 42:18
  Speaker 1: impact if Kohlberger decides to file an appeal after a
• 42:21
  Speaker 1: jury hands down his decision 1,000%. And this is what
• 42:25
  Speaker 1: I said from the beginning. You have to play the
• 42:27
  Speaker 1: game worrying about the appeal the whole entire time. Because
• 42:32
  Speaker 1: if he's found guilty, you know he's appealing this. It's
• 42:34
  Speaker 1: not even a question. So why give them any kind
• 42:37
  Speaker 1: of tenable ground to stand upon? But here we are,
• 42:41
  Speaker 1: once again, with a prosecution shit in the bed. Afterwards,
• 42:46
  Speaker 1: if in fact Kohlberger is found guilty, his attorneys are
• 42:49
  Speaker 1: going to have a field day with stuff like this,
• 42:51
  Speaker 1: he said. Former Assistant U.S. Attorney Nima Rahmani told Fox
• 42:56
  Speaker 1: News Digital he doesn't think the leak will have much
• 42:59
  Speaker 1: of an impact on the case. People should follow court orders,
• 43:03
  Speaker 1: but this is more bluster than anything, and I don't
• 43:06
  Speaker 1: think much will come of it. This is what happens
• 43:08
  Speaker 1: when you have a very broad gag order and it
• 43:10
  Speaker 1: takes three and a half years to finally get a
• 43:12
  Speaker 1: murder case to trial. It's not realistic to expect evidence
• 43:16
  Speaker 1: not being leaked to the media for years in the
• 43:18
  Speaker 1: biggest murder trial in the country, Rahmani said. And while
• 43:22
  Speaker 1: that might be true, I don't think Judge Hippler feels
• 43:24
  Speaker 1: the same way. So we'll see what Judge Hippler decides.
• 43:28
  Speaker 1: And when that order hits the docket one way or
• 43:31
  Speaker 1: the other, we'll get it added to the catalog. But
• 43:34
  Speaker 1: until then, that's going to do it for this one.
• 43:36
  Speaker 1: All of the information that goes with this episode can
• 43:39
  Speaker 1: be found in the description box.