Latest / Beyond The Horizon / Mega Edition: Bryan Kohberger And The State Battle Over I.C.R. Sanctions (8/31/26)

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Mega Edition: Bryan Kohberger And The State Battle Over I.C.R. Sanctions (8/31/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up everyone and welcome back to the program. While
• 0:03
  Speaker 1: there hasn't been much information about the Brian Koberger trial
• 0:08
  Speaker 1: in the media as far as stories on a regular basis,
• 0:12
  Speaker 1: there's been a lot going on behind the scenes when
• 0:15
  Speaker 1: it comes to court documents. And while we haven't really
• 0:18
  Speaker 1: been discussing the going-ons inside of the courtroom, I've been
• 0:22
  Speaker 1: following along and taking note of the arguments and both
• 0:27
  Speaker 1: sides trying to make their case in front of Judge Hippler.
• 0:30
  Speaker 1: And considering that we're going to be getting to this
• 0:33
  Speaker 1: trial pretty soon now, I think it's time that we
• 0:35
  Speaker 1: dive back in and get caught up on what's going
• 0:39
  Speaker 1: on up in Moscow with Brian Koberger. And right now,
• 0:43
  Speaker 1: the argument is over sanctions or possible sanctions that Brian
• 0:48
  Speaker 1: Koberger's team wants to bring against the prosecution. So we're
• 0:52
  Speaker 1: going to start there. Case number, CR01-24-31665. State of Idaho,
• 1:01
  Speaker 1: Plaintiff vs. Brian C. Kohlberger, the Defendant. Motion to compel ICR,
• 1:07
  Speaker 1: which stands for Idaho Criminal Rules, 16B7 material and for sanctions.
• 1:14
  Speaker 1: Comes now, Brian Kohlberger by and through his attorneys of
• 1:17
  Speaker 1: record and hereby moves this honorable court for an order
• 1:20
  Speaker 1: to compel complete expert disclosures from the state in this matter,
• 1:24
  Speaker 1: and request sanctions pursuant to ICR 16-K. The bulk of
• 1:29
  Speaker 1: the state's expert disclosures fail to include opinions and reports.
• 1:33
  Speaker 1: These inadequate disclosures greatly prejudice Mr. Kohlberger, who is obligated
• 1:37
  Speaker 1: to submit defense guilt phase expert disclosures by January 23, 2025.
• 1:44
  Speaker 1: The sanctions considered must be the exclusion of the experts,
• 1:48
  Speaker 1: or at a bare minimum, an order compelling proper disclosure
• 1:51
  Speaker 1: and extension of Mr. Kohlberger's January 23, 2025 deadline.
• 1:57
  Speaker 2: Mr.
• 1:57
  Speaker 1: Kohlberger is prejudiced because he does not know what expert
• 2:00
  Speaker 1: evidence the state intends to elicit. He does not know
• 2:04
  Speaker 1: what expert evidence he must confront. Relevant Facts In this case,
• 2:08
  Speaker 1: there are over 68 terabytes of discovery produced in a
• 2:12
  Speaker 1: method that the defense has repeatedly referenced in pleadings and
• 2:15
  Speaker 1: at various motion hearings as extremely disorganized. There have been
• 2:20
  Speaker 1: 20 specific requests for discovery and six motions to compel
• 2:24
  Speaker 1: filed by the defense. The court entered a redacted order
• 2:28
  Speaker 1: governing further criminal proceedings and notice of trial setting on
• 2:31
  Speaker 1: October 9th 2024, and has notified the parties that strict
• 2:35
  Speaker 1: compliance with the court's order is expected. On December 18, 2024,
• 2:40
  Speaker 1: the state disclosed 25 experts. Of those, only five include
• 2:45
  Speaker 1: actual expert reports. Notably, not a single DNA expert opinion
• 2:49
  Speaker 1: or report was produced. Instead, the state disclosures refer to
• 2:53
  Speaker 1: Bates-numbered pages and say, This disclosure is provided as an aid.
• 2:58
  Speaker 1: It does not encompass all findings, impressions, conclusions, or materials.
• 3:02
  Speaker 1: related to this expert's involvement in this case. It further
• 3:06
  Speaker 1: does not in any way limit the scope of the
• 3:09
  Speaker 1: expert's testimony. Further, this expert may testify about findings, impressions,
• 3:14
  Speaker 1: and or conclusions that he or she drew from the
• 3:16
  Speaker 1: work of other experts who previously examined or handled the
• 3:20
  Speaker 1: evidence in question. At least three digital forensic experts are
• 3:24
  Speaker 1: disclosed with lists of 67 electronic devices or third-party databases examined.
• 3:30
  Speaker 1: Not a single report of what the three experts will
• 3:33
  Speaker 1: opine related to any specific device or data is disclosed.
• 3:38
  Speaker 2: The argument.
• 3:40
  Speaker 1: This is a capital murder case, and nothing about it
• 3:42
  Speaker 1: is clear-cut. The expert issues are complex, involving many different
• 3:46
  Speaker 1: facets of DNA, cellular data, cell tower coverage and drive testing,
• 3:52
  Speaker 1: car identification, crime scene and blood spatter analysis, fingerprint analysis,
• 3:58
  Speaker 1: forensic pathology, and electronic device analysis of the suspect, victims,
• 4:02
  Speaker 1: and alternative suspects, and social media accounts. At issue is
• 4:07
  Speaker 1: the state's supplemental response to requests for discovery regarding expert
• 4:11
  Speaker 1: testimony and its exhibits, filed December 18, 2024. The disclosure
• 4:16
  Speaker 1: lists 25 experts and provides curricula vitae, 5 with expert
• 4:21
  Speaker 1: opinion reports, and others with reference debates numbered pages or items,
• 4:25
  Speaker 1: but no opinion, data, or methodology. What the state's disclosure
• 4:30
  Speaker 1: does not do is follow the rule, which states, expert witnesses,
• 4:35
  Speaker 1: on written request of the defendant, the prosecutor, must provide
• 4:38
  Speaker 1: a written summary or report of any testimony that the
• 4:41
  Speaker 1: state intends to introduce a trial or at a hearing
• 4:44
  Speaker 1: pursuant to the rules 702, 703, or 705 of the
• 4:49
  Speaker 1: Idaho Rules of Evidence. The summary provided must describe the
• 4:53
  Speaker 1: witness opinions, the facts and data for those opinions, and
• 4:56
  Speaker 1: the witness's qualifications. Disclosure of expert opinions regarding mental health
• 5:01
  Speaker 1: must also comply with the requirements of Idaho Code Section 18-207.
• 5:08
  Speaker 1: The prosecution is not required to produce any materials not
• 5:11
  Speaker 1: subject to disclosure under subsection G of this rule. This
• 5:15
  Speaker 1: subsection does not require disclosure of expert witnesses, their opinions,
• 5:19
  Speaker 1: the facts and data for those opinions, or the witness's qualifications,
• 5:24
  Speaker 1: intended only to rebut evidence or theories that have not
• 5:27
  Speaker 1: been disclosed under the rule prior to trial. As the
• 5:30
  Speaker 1: Court of Appeals held, the plain text of Rule 16b-7
• 5:34
  Speaker 1: requires the disclosure of expert witnesses, opinions, the facts and
• 5:38
  Speaker 1: data for those opinions, and also any testimony that the
• 5:42
  Speaker 1: state intends to introduce pursuant to Rule 702, 703, or
• 5:45
  Speaker 1: 705 of the Idaho Rules of Evidence, that encompasses not
• 5:51
  Speaker 1: only expert opinion, but also scientific, technical, or other specialized
• 5:56
  Speaker 1: knowledge to which a qualified witness may testify in a
• 5:59
  Speaker 1: form other than an opinion.
• 6:01
  Speaker 2: See IRE 702. State v. Morin, 158, Idaho, 622-625, 2015.
• 6:10
  Speaker 1: As the court explained in Morin, when an expert relies
• 6:13
  Speaker 1: on some form of scientific or technical information, that must
• 6:16
  Speaker 1: be disclosed, as opposed to other witnesses whose opinions may
• 6:20
  Speaker 1: be of less scientific variety. The discovery rules are designed
• 6:24
  Speaker 1: to safeguard the truth-seeking functions of trials, promote fairness and candor,
• 6:28
  Speaker 1: to facilitate fair and expedited pretrial fact-gathering, and to prevent
• 6:33
  Speaker 1: surprise at trial. ID at 626.
• 6:37
  Speaker 2: Mr.
• 6:38
  Speaker 1: Koberger is filing Exhibit A. under seal, containing specific issues
• 6:42
  Speaker 1: with the disclosures. Courtesy copies will be provided via email
• 6:46
  Speaker 1: to opposing counsel and court staff on the date of
• 6:49
  Speaker 1: this motion and hand delivered to the court on the
• 6:52
  Speaker 1: 2nd of January, 2025. If the state violates disclosure requirement
• 6:57
  Speaker 1: under ICR 16B6, the trial court has considerable discretion to
• 7:03
  Speaker 1: fashion an appropriate 16K remedy.
• 7:06
  Speaker 2: State v.
• 7:07
  Speaker 1: Montgomery 163, Idaho 40, 2017.
• 7:11
  Speaker 2: Mr.
• 7:12
  Speaker 1: Koberger continues wading through a sea of discovery. The need
• 7:16
  Speaker 1: for rule-compliant expert disclosures is critical to his ability to
• 7:19
  Speaker 1: prepare for his defense at trial. The state's failure to
• 7:22
  Speaker 1: comply is not harmless.
• 7:24
  Speaker 2: Conclusion. Mr.
• 7:26
  Speaker 1: Koberger must be able to confront the evidence against him,
• 7:29
  Speaker 1: and to do that, it must be disclosed in accordance
• 7:32
  Speaker 1: with Idaho Rule 16 and this court's trial-setting order. The
• 7:36
  Speaker 1: expert evidence disclosed by the state is woefully inadequate. This
• 7:40
  Speaker 1: is a capital murder case, and compliance with the rules
• 7:43
  Speaker 1: of discovery are not optional.
• 7:46
  Speaker 2: Mr.
• 7:46
  Speaker 1: Kohlberger is prejudiced by the state's failure. It's impossible for
• 7:50
  Speaker 1: him to confront unknown expert opinions with his own expert
• 7:53
  Speaker 1: disclosures by January 23, 2025. This document was dated December 27, 2024,
• 7:55
  Speaker 1: and it was signed by Ann Taylor and J.
• 7:57
  Speaker 2: Weston Logsdon.
• 8:06
  Speaker 1: All right, so that's going to do it for that
• 8:08
  Speaker 1: motion to compel. And in the next episode, we're going
• 8:11
  Speaker 1: to dive into the state's objection to the defendant's motion
• 8:15
  Speaker 1: to compel. And like I said in the opening, there
• 8:17
  Speaker 1: is a lot to get to. There's been a lot
• 8:19
  Speaker 1: going on here in Moscow over the past few months
• 8:22
  Speaker 1: that really hasn't made its way into the newspapers. So
• 8:26
  Speaker 1: we're going to be diving deep over the next few
• 8:28
  Speaker 1: weeks getting caught up. And I think that there have
• 8:31
  Speaker 1: been some significant developments in this story as far as
• 8:34
  Speaker 1: evidence goes. And it's also going to be pretty interesting
• 8:37
  Speaker 1: to go and take a look at some of the
• 8:39
  Speaker 1: stuff we talked about previously when this all was first
• 8:42
  Speaker 1: going down and some of those warrants that we talked
• 8:45
  Speaker 1: about and see how Brian Koberger's team has challenged those
• 8:49
  Speaker 1: warrants over the past six months or so, because there
• 8:53
  Speaker 1: really hasn't been much going on. Now, of course, if
• 8:56
  Speaker 1: you're following the docket, there's plenty going on. But if
• 8:59
  Speaker 1: you're somebody who hasn't really been following along behind the scenes,
• 9:03
  Speaker 1: then there's no doubt that there's a lot of information
• 9:06
  Speaker 1: to catch up on. And hopefully over the next few weeks,
• 9:09
  Speaker 1: we can get caught up completely to where things currently
• 9:12
  Speaker 1: stand as far as the court case goes behind the scenes.
• 9:17
  Speaker 1: And to say that Ann Taylor and Brian Koberger's team
• 9:20
  Speaker 1: is doing anything but throwing the kitchen sink at the
• 9:23
  Speaker 1: prosecution is an understatement. They're doing everything in their power
• 9:27
  Speaker 1: to try and get Brian Koberger off. Is it going
• 9:30
  Speaker 1: to be successful? I have my doubts. But that doesn't
• 9:34
  Speaker 1: mean that there isn't something that's going to pop up
• 9:36
  Speaker 1: during discovery. And that's what all of these motions are
• 9:39
  Speaker 1: trying to figure out. What's going to be evidence, what
• 9:42
  Speaker 1: they can use to maybe help their client. And then
• 9:45
  Speaker 1: other things they're going to try and get thrown out
• 9:47
  Speaker 1: on whatever sort of grounds they can find. This was
• 9:51
  Speaker 1: collected illegally. This wasn't, you know, stored correctly, whatever it
• 9:55
  Speaker 1: might be. They're going to explore all of that. And
• 9:58
  Speaker 1: as they continue to dig into what the prosecution has
• 10:01
  Speaker 1: brought forward so far, their hope is that they're going
• 10:04
  Speaker 1: to be able to destroy the credibility of not only
• 10:06
  Speaker 1: the evidence, but the people who collected it. So that's
• 10:09
  Speaker 1: where things currently stand as of now. And hopefully over
• 10:12
  Speaker 1: the next few weeks, we can get a clearer picture
• 10:15
  Speaker 1: of exactly where things stand. But that's going to do
• 10:19
  Speaker 1: it for this one. All of the information that goes
• 10:21
  Speaker 1: with this episode can be found in the description box.
• 10:25
  Speaker 1: What's up, everyone, and welcome back to the program. In
• 10:28
  Speaker 1: this episode, we're going to pick up with the court
• 10:30
  Speaker 1: documents from Moscow, and this time we're taking a look
• 10:33
  Speaker 1: at the state's objection to the defendant's motion to compel
• 10:37
  Speaker 1: ICR 16B7 materials and for sanctions.
• 10:42
  Speaker 2: Case number CR 01-24-2. Relevant Facts.
• 11:07
  Speaker 1: The state has been actively engaged in replying to the
• 11:10
  Speaker 1: defendant's request for discovery, including materials related to potential expert witnesses,
• 11:16
  Speaker 1: since the original discovery request was filed on January 10, 2023.
• 11:21
  Speaker 1: As ICR 16J contemplates, discovery involves a continuous duty to disclose,
• 11:27
  Speaker 1: which the state has and will continue to comply with.
• 11:31
  Speaker 1: This specific continuing duty to disclose evidences at ICR 16
• 11:35
  Speaker 1: Compliance is not a one-time event. Defendant currently notes this
• 11:40
  Speaker 1: case involves a substantial amount of discovery. Defendant cites over
• 11:45
  Speaker 1: 68 terabytes and the state does not dispute this. The
• 11:49
  Speaker 1: discovery received by the state from multiple agencies has been
• 11:52
  Speaker 1: provided to defense in the same manner it was provided
• 11:55
  Speaker 1: to the state. The state's in the same position as
• 11:58
  Speaker 1: the defense in this regard.
• 12:00
  Speaker 2: The court record will.
• 12:01
  Speaker 1: Reflect that the state has provided extremely detailed responses to
• 12:05
  Speaker 1: defendant's request for discovery and motions to compel above and
• 12:09
  Speaker 1: beyond what is required by Rule 16. On December 18, 2024,
• 12:14
  Speaker 1: the state, in compliance with the court's order, filed its
• 12:17
  Speaker 1: guilt phase experts consistent with ICR 16B7. These disclosures were
• 12:23
  Speaker 1: filed 7 months and 24 days before the commencement of trial.
• 12:28
  Speaker 1: As of the date of this filing, we are 7
• 12:30
  Speaker 1: months and 12 days before the commencement of trial. Nevertheless,
• 12:34
  Speaker 1: defendant argues that that he has been prejudiced and requests sanctions.
• 12:38
  Speaker 1: Defendant's arguments are without merit.
• 12:41
  Speaker 2: Argument.
• 12:42
  Speaker 1: The state has complied with the court's order and Idaho
• 12:45
  Speaker 1: Criminal Rule 16B7 regarding disclosure of expert witnesses. On December 18, 2024,
• 12:51
  Speaker 1: the state filed state supplemental response to request for discovery
• 12:55
  Speaker 1: regarding expert testimony in compliance with the court's unredacted sealed
• 13:00
  Speaker 1: order governing further criminal proceedings and notice of trial settings.
• 13:04
  Speaker 1: an order on October 9th, 2024. That order stated as
• 13:09
  Speaker 1: follows under Section C, Discovery and Expert Disclosures.
• 13:13
  Speaker 2: Experts.
• 13:14
  Speaker 1: A list of experts the parties intend to call a trial,
• 13:17
  Speaker 1: including a copy of the expert's report consistent with ICR
• 13:21
  Speaker 1: 16B7 and a copy of the expert's curriculum shall be
• 13:25
  Speaker 1: disclosed to the opposing party as follows. State's Guilt Phase Experts,
• 13:29
  Speaker 1: December 18th, 2024. Page 2. The order refers to ICR 16B7,
• 13:36
  Speaker 1: which states in relevant part, expert witness. On written request
• 13:40
  Speaker 1: of the defendant, the prosecutor must provide a written summary
• 13:43
  Speaker 1: or report of a testimony that the state intends to
• 13:46
  Speaker 1: introduce at trial or at a hearing pursuant to Rule 702, 703,
• 13:51
  Speaker 1: or 705 of the Idaho Rules of Evidence. The summary
• 13:55
  Speaker 1: provided must describe the witness opinions, the facts and data
• 13:59
  Speaker 1: for those opinions, and the witness's qualifications. The defendant cites
• 14:03
  Speaker 1: State v. Morin in support of this motion, defendant's motion
• 14:06
  Speaker 1: to compel ICR 16B7, page 3. Morin was charged with
• 14:11
  Speaker 1: driving under the influence of drugs, marijuana. The state followed
• 14:16
  Speaker 1: the following expert disclosure for the forensic toxicologist.
• 14:21
  Speaker 2: Dr.
• 14:21
  Speaker 1: Dawson is an expert in toxicology and pharmacology and will
• 14:25
  Speaker 1: assist the trier of fact in understanding the evidence regarding
• 14:28
  Speaker 1: the effects of drugs on the behavior and performance of
• 14:31
  Speaker 1: the defendant as reported in the case.
• 14:34
  Speaker 2: Dr.
• 14:35
  Speaker 1: Dawson will utilize known and generally accepted scientific principles of absorption, distribution, metabolization,
• 14:42
  Speaker 1: and excretion of drugs. Testimony may include information on the
• 14:47
  Speaker 1: effects of the drugs consumed by the defendant in this
• 14:50
  Speaker 1: case and the possible effects of said drugs.
• 14:53
  Speaker 2: State v.
• 14:54
  Speaker 1: Morin At trial, Dr. Dawson testified that dilated pupils, confusing
• 15:08
  Speaker 1: speech patterns, impairments to balance, and other psychomotor function, lack
• 15:13
  Speaker 1: of convergence, and green coating of the tongue were all
• 15:16
  Speaker 1: diagnosis indications of marijuana intoxication.
• 15:21
  Speaker 2: Dr.
• 15:22
  Speaker 1: Dawson also testified that to the physiological effects of other
• 15:25
  Speaker 1: drugs found in Morin's system.
• 15:27
  Speaker 2: Ultimately, Dr.
• 15:28
  Speaker 1: Dawson testified that it was his opinion that Morin was
• 15:31
  Speaker 1: impaired and unsafe to operate a motor vehicle. The court
• 15:35
  Speaker 1: held that the state's response disclosed nothing more than Dr.
• 15:38
  Speaker 1: Dawson's qualifications, ID at 626. The generic response vaguely described
• 15:44
  Speaker 1: the subject matter, not the content, of Dr. Dawson's anticipated testimony.
• 15:49
  Speaker 1: The court held a mere list of topics or general
• 15:52
  Speaker 1: subject matter which an expert witness may testify is not
• 15:55
  Speaker 1: a discovery response that complies with this rule. The court
• 15:59
  Speaker 1: also stated even if the state did not know all
• 16:01
  Speaker 1: the details of Dr. Dawson's testimony at the time of
• 16:04
  Speaker 1: the initial discovery response, ICR 16J imposes a continuing duty
• 16:10
  Speaker 1: to supplement the response if a party later discovers or
• 16:14
  Speaker 1: decides to use additional evidence. Discovery rules are drafted to
• 16:18
  Speaker 1: safeguard the truth-seeking function of trials. The rules are designed
• 16:22
  Speaker 1: to promote fairness and candor, facilitate fair and expedient pre-trial fact-gathering,
• 16:27
  Speaker 1: and prevent surprises at trial. Morin at 625, 1217, citing
• 16:30
  Speaker 1: Edmonds v. Cranor, 142 Idaho, 867, 873-78, 136P,. 3D, 338, 335-49, 2006.
• 16:47
  Speaker 1: By way of contrast, in State v. Koch, the defendant
• 16:50
  Speaker 1: was charged with lewd conduct with a minor, and the
• 16:53
  Speaker 1: state filed the following expert disclosure for an expert. Ms.
• 16:57
  Speaker 1: Yeager's curriculum vitae is attached. She'll testify to the dynamics
• 17:01
  Speaker 1: of delayed disclosures as it relates to child sexual abuse.
• 17:04
  Speaker 1: The state intends to elicit expert testimony from Meidel Yeager
• 17:09
  Speaker 1: regarding behavior of children who have become sexually abused.
• 17:12
  Speaker 2: And Ms.
• 17:13
  Speaker 1: Yeager will testify that it's rare that a child immediately
• 17:16
  Speaker 1: discloses their sexual abuse, especially when they know the perpetrator.
• 17:21
  Speaker 2: Ms.
• 17:21
  Speaker 1: Yeager will testify about the dynamics of child sexual abuse
• 17:25
  Speaker 1: as it relates to grooming a victim, keeping the abuse secret,
• 17:29
  Speaker 1: the effects and threats, on whether a child chooses to disclose.
• 17:32
  Speaker 1: 157 Idaho 89, 93 and 94, 334 P. 280 284 and 85, 2014.
• 17:43
  Speaker 1: Koch argued that the above disclosure was insufficient because it
• 17:46
  Speaker 1: failed to disclose Yeager's opinions and the facts and data
• 17:49
  Speaker 1: behind those opinions as required by ICR 16B7, Idea 93.
• 17:57
  Speaker 1: Koch also claimed that disclosure was insufficient because it did
• 18:00
  Speaker 1: not include a summary or report written by Yeager. The
• 18:04
  Speaker 1: Idaho Supreme Court disagreed. The Supreme Court held that disclosure
• 18:08
  Speaker 1: informed Koch of the main opinion to which Yeager was
• 18:11
  Speaker 1: going to testify, and while it did not specifically disclose
• 18:15
  Speaker 1: that Yeager's opinions were based on her training and experience,
• 18:18
  Speaker 1: which would be better practice, it did provide her curriculum
• 18:21
  Speaker 1: vitae as presumably disclosed her education and experience. Further, the
• 18:27
  Speaker 1: Idaho Supreme Court held that the state does not have
• 18:30
  Speaker 1: to produce a written report where none had previously existed,
• 18:34
  Speaker 1: stating if there is no data, the state doesn't have
• 18:36
  Speaker 1: to produce data. She is simply an opinion witness. noting
• 18:40
  Speaker 1: that Koch could object if his testimony varied from the
• 18:44
  Speaker 1: state's disclosed summary. ID at 94 and 286. The Idaho
• 18:50
  Speaker 1: Supreme Court and Koch discussed the scope of ICR 16B7
• 18:54
  Speaker 1: disclosure requirements and looked to federal rule of criminal procedures 16A, 1,
• 18:59
  Speaker 1: and G, the Supreme Court noted, that the main difference
• 19:03
  Speaker 1: is that the federal rule requires the basis and reasons
• 19:06
  Speaker 1: for those opinions, whereas the Idaho rule requires the facts
• 19:09
  Speaker 1: and data for those opinions, suggesting that the federal rule
• 19:14
  Speaker 1: requires broader disclosure. The Idaho Supreme Court further noted that
• 19:19
  Speaker 1: the expert conclusions were adequately explored by defense counsel on
• 19:23
  Speaker 1: cross-examination with no particular difficulty, evidencing that the state's disclosure
• 19:28
  Speaker 1: was adequate. Idea 95. The goal of Rule 16 is
• 19:33
  Speaker 1: to provide the opponent with a fair opportunity to test
• 19:35
  Speaker 1: the merit of the expert's testimony through focused cross-examination. Citing
• 19:40
  Speaker 1: United States v.
• 19:41
  Speaker 2: Lipscomb, 539 F. 3d, 3238 First Circuit, 2008. In State v. Caswell,
• 19:43
  Speaker 2: Caswell was....
• 19:50
  Speaker 1: Charged with possession and delivery of methamphetamine. The state discovered
• 19:55
  Speaker 1: a report by criminal Donald Wyckoff who tested the controlled
• 19:58
  Speaker 1: substance and determined it was methamphetamine. At trial, Caswell objected
• 20:03
  Speaker 1: to the introduction of this report. claiming the state failed
• 20:06
  Speaker 1: to provide him with the working papers or graphs from
• 20:08
  Speaker 1: which Wyckoff drew his conclusions, that the tested substance was methamphetamine.
• 20:14
  Speaker 1: Five months before trial, the state provided Caswell with Wyckoff's report,
• 20:18
  Speaker 1: Exhibit C, containing the test results and conclusions. The state
• 20:24
  Speaker 1: did not provide the working papers and graphs on which
• 20:26
  Speaker 1: the conclusions were based until requested at trial. 121 Idaho 801-803-828-P.2D-830-832-1992.
• 20:35
  Speaker 1: On appeal, the Idaho Supreme Court found that the state's disclosure,
• 20:42
  Speaker 1: Exhibit C, was adequate. All right, we're going to wrap
• 20:45
  Speaker 1: up right here. And in the next episode, we're going
• 20:47
  Speaker 1: to pick up with turning to the case at hand.
• 20:50
  Speaker 1: All of the information that goes with this episode can
• 20:53
  Speaker 1: be found in the description box. What's up, everyone? And
• 20:57
  Speaker 1: welcome back to the program. In this episode, we're getting
• 21:00
  Speaker 1: right back to the state of Idaho's objection to Brian
• 21:03
  Speaker 1: Kohlberger's motion to compel, ICR material, and for sanctions. Turning
• 21:09
  Speaker 1: to the case at hand, on December 18th, 2024, the
• 21:13
  Speaker 1: state disclosed 25 potential experts the state intends to call
• 21:16
  Speaker 1: at trial. The defendant takes issue with 22 of the
• 21:20
  Speaker 1: disclosures claiming that they are insufficient. All 25 of the
• 21:25
  Speaker 1: state's disclosures comply with the court's order and ICR 16B7
• 21:30
  Speaker 1: and are not the generic discovery response as presented in Morin.
• 21:34
  Speaker 1: All 25 disclosures encompass more than a mere list of
• 21:37
  Speaker 1: topics or general subject matter which an expert witness may testify.
• 21:42
  Speaker 1: Morin at 626. Each disclosure informs defendant of the main
• 21:47
  Speaker 1: opinion to which each expert will testify. and the CV,
• 21:51
  Speaker 1: which that opinion is based upon, as required by Koch.
• 21:55
  Speaker 1: For experts where the state does not have a report,
• 21:58
  Speaker 1: as further held by Koch, if there is no data,
• 22:00
  Speaker 1: the state doesn't have to produce data. The state addresses
• 22:04
  Speaker 1: each objection to the proposed disclosures as follows. For Exhibit
• 22:08
  Speaker 1: S1 and S6, the state disclosed expert opinions regarding the
• 22:12
  Speaker 1: toxicology results for all decedents as detailed in the provided
• 22:17
  Speaker 1: toxicology reports. In addition, the state included the toxicologist Curriculum Vitae,
• 22:22
  Speaker 1: which supported his or her opinions. This disclosure was not
• 22:26
  Speaker 1: merely a topic list of general subject matter, which the
• 22:29
  Speaker 1: expert may testify as precluded by Morin. Instead, it's the
• 22:34
  Speaker 1: main opinion and the CV which supported the opinion as
• 22:37
  Speaker 1: required by Koch. As noted by the Koch Court, the
• 22:41
  Speaker 1: Idaho rule is not as broad as the federal rule,
• 22:45
  Speaker 1: which requires the basis and reasons for those opinions, whereas
• 22:49
  Speaker 1: the Idaho rule requires the facts and data for those opinions.
• 22:54
  Speaker 1: States S-1 and S-6 disclosure satisfy the requirements of Rule 6B-7.
• 23:01
  Speaker 1: For Exhibit S2, the state disclosed Special Agent Balance. The
• 23:05
  Speaker 1: state's disclosure was adequately specific. For example, S2 states S.A.
• 23:10
  Speaker 1: Balance will provide his opinion as the general locations in
• 23:14
  Speaker 1: which the target cellular telephones were located at various times
• 23:18
  Speaker 1: before and after the homicides at 1122 King Road and
• 23:22
  Speaker 1: the cellular phone's directions of travel. The attached report detailed
• 23:27
  Speaker 1: the target cellular phone's analyzed The dates analyzed and the
• 23:30
  Speaker 1: direction of travel. In addition, defense was directed to the
• 23:33
  Speaker 1: cell phone records provided by AT & T and the
• 23:37
  Speaker 1: drive testing files which support the report. The defendant appears
• 23:41
  Speaker 1: to be requiring compliance with the federal standard, which is
• 23:44
  Speaker 1: much more broad than ICR 16B7. The state's disclosure provides
• 23:50
  Speaker 1: defendant with adequate notice of balance anticipated testimony to satisfy
• 23:54
  Speaker 1: the requirements of ICR 16B7. For Exhibit S3 and S4,
• 24:01
  Speaker 1: defendant correctly agrees these disclosures meet ICR 16b7 requirements. For
• 24:08
  Speaker 1: Exhibits S5 and S7, the state disclosed two likely fact
• 24:11
  Speaker 1: witnesses as expert out of an abundance of caution and
• 24:15
  Speaker 1: was clear about this intent. The defendant's argument that the
• 24:18
  Speaker 1: state erred in its good faith disclosure is without merit.
• 24:22
  Speaker 1: In the event either of these witnesses are in fact
• 24:25
  Speaker 1: expert within the meaning of ICR 16b7 requirements, It's clear
• 24:29
  Speaker 1: from each disclosure exactly what these witnesses will testify to
• 24:33
  Speaker 1: based upon the provided disclosures. For Exhibit S8, the state
• 24:37
  Speaker 1: disclosed the vehicle identification expert S.A. Immel. The disclosure specifies
• 24:42
  Speaker 1: that he will testify to his use of Forensic Audio-Video
• 24:47
  Speaker 1: and Image Analysis Program. The Forensic Audio-Video and Image Analysis
• 24:52
  Speaker 1: Program was used to determine the make, model, and year
• 24:56
  Speaker 1: of a suspected vehicle involved and In the 1122, King
• 24:59
  Speaker 1: Road Burglary and Homicides in Moscow, Idaho, on or about
• 25:03
  Speaker 1: November 13th, 2022. It's clear from the disclosure that this
• 25:09
  Speaker 1: witness is an expert in vehicle identification. Defendant has repeatedly
• 25:13
  Speaker 1: been provided the images relied upon, which are detailed in
• 25:17
  Speaker 1: his report of examination, which was attached to the state's disclosure.
• 25:21
  Speaker 1: See S8A page 1. The state's disclosure provides defendant with
• 25:26
  Speaker 1: adequate notice of S.A. Immel's anticipated testimony to satisfy the
• 25:31
  Speaker 1: requirements of ICR 16B7. For Exhibit S9, the state disclosed
• 25:37
  Speaker 1: Kathy Mabbitt, the Latah County Coroner. The state specially detailed
• 25:41
  Speaker 1: each opinion to be proffered. The opinions were supported by
• 25:44
  Speaker 1: the attached death certificates authored by the coroner and the
• 25:47
  Speaker 1: coroner's CV. The defendant fails to mention that in addition
• 25:52
  Speaker 1: to being an attorney, and an elected coroner, Ms. Mabbitt,
• 25:56
  Speaker 1: was a registered nurse for 44 years, which is detailed
• 25:59
  Speaker 1: in her CV. The state's expert disclosure satisfies the requirements
• 26:03
  Speaker 1: of ICR 16B7. For Exhibit S10, S13, and S14, the
• 26:10
  Speaker 1: state disclosed forensic detectives. These disclosures specifically listed each forensic
• 26:15
  Speaker 1: item with the witnesses who would testify regarding the witness expertise,
• 26:20
  Speaker 1: is the process of extracting and identifying the data, that
• 26:24
  Speaker 1: is on each of the listed devices. The contents of
• 26:27
  Speaker 1: each of these devices have been disclosed to defendant. Any
• 26:32
  Speaker 1: opinion related to the extraction, i.e. whether a connection was
• 26:35
  Speaker 1: found or not, is not an expert opinion. As a result,
• 26:38
  Speaker 1: the disclosures meet the requirement of Rule 16b-7. For Exhibit S-12,
• 26:44
  Speaker 1: the state disclosed an expert on crime scene reconstruction and
• 26:48
  Speaker 1: bloodstain pattern analysis. The state specifically detailed each opinion to
• 26:53
  Speaker 1: be proffered. The opinions were supported by attached reference report NCV.
• 26:58
  Speaker 1: The state's disclosure provides defendant with adequate notice of this
• 27:02
  Speaker 1: expert's anticipated testimony to satisfy the requirements of ICR 16B7.
• 27:09
  Speaker 1: As noted by the Koch court, the defendant has identified
• 27:12
  Speaker 1: areas through the disclosure for cross-examination which only evidences the
• 27:17
  Speaker 1: adequacy of the disclosure. Defense should be able to cross-examine
• 27:21
  Speaker 1: the with no particular difficulty, satisfying the goal of Rule 16,
• 27:25
  Speaker 1: Coke at.
• 27:27
  Speaker 2: 95, 286.
• 27:29
  Speaker 1: Exhibit S15 through S25 all relate to Idaho State Police
• 27:34
  Speaker 1: forensic lab experts. First, the defendant claims not a single
• 27:37
  Speaker 1: DNA expert opinion or report was produced. This is simply
• 27:41
  Speaker 1: not true. In each of these responses, the state refers
• 27:45
  Speaker 1: the defendant to specific lab reports and the corresponding Bates numbers.
• 27:50
  Speaker 1: The defendant's apparent argument that the state is required to
• 27:53
  Speaker 1: make duplicative disclosures is unsupported. A simple reference to where
• 27:57
  Speaker 1: a defendant can find the report is adequate. Each report
• 28:02
  Speaker 1: provides a basis to determine what the expert's opinion is
• 28:05
  Speaker 1: through the referenced lab report. For example, the state is
• 28:09
  Speaker 1: attaching Bates 9323-9354 for the court's review of how these
• 28:15
  Speaker 1: disclosures comply with the requirements of ICR 16B7. See Exhibit
• 28:21
  Speaker 1: S1 attached. The state follows suit in disclosures S16 through
• 28:25
  Speaker 1: S20 and S22 through S25. The state's expert disclosures regarding
• 28:31
  Speaker 1: lab experts satisfy the requirements of ICR 16B7. For S21,
• 28:38
  Speaker 1: the state disclosed Ryleen Nowlin as an expert. It's anticipated
• 28:42
  Speaker 1: that this witness is actually a rebuttal witness who is
• 28:44
  Speaker 1: prepared to testify regarding secondary transfer if necessary. The state
• 28:50
  Speaker 1: contends the notice provided is sufficient pursuant to Rule 16B7,
• 28:54
  Speaker 1: but reserves the right to amend this disclosure upon review
• 28:58
  Speaker 1: of the defendant's guilt phase experts and pending discovery disclosure.
• 29:03
  Speaker 1: As required by Rule 16J, the state will continue to
• 29:06
  Speaker 1: supplement the response if the state later discovers or decides
• 29:10
  Speaker 1: to use additional evidence. Lastly, if the court determines that
• 29:14
  Speaker 1: any of the disclosed expert disclosures do not meet the
• 29:17
  Speaker 1: requirements of Rule 16B7, 16B7B, the state will promptly amend.
• 29:22
  Speaker 1: Defendant complains and appears to represent that he has not
• 29:25
  Speaker 1: been provided with The defendant's request for sanctions is premature
• 29:33
  Speaker 1: and without merit. Defendant complains and appears to represent that
• 29:38
  Speaker 1: he has not been provided with adequate information from the state.
• 29:42
  Speaker 1: This is patently untrue. By way of example, to appreciate
• 29:45
  Speaker 1: the true degree of analysis and use the defendant of
• 29:49
  Speaker 1: discovery that has been provided, the court need look no
• 29:52
  Speaker 1: further than the extensive detail in the defendant's motion for
• 29:55
  Speaker 1: Frank's hearing. the 20-plus supplemental discovery requests and related materials,
• 30:01
  Speaker 1: and the many other detailed, substantive motions that he has filed.
• 30:06
  Speaker 1: In an abundance of caution, the state included witnesses that
• 30:09
  Speaker 1: the state does not label as technically experts within the
• 30:13
  Speaker 1: meaning of ICR 16B7, but anticipates that the defendant might disagree.
• 30:20
  Speaker 1: Conclusion The state respectfully requests that the court deny defendant's
• 30:24
  Speaker 1: motion and to compel ICR 16B7 material and for sanctions
• 30:29
  Speaker 1: based upon the filings in the case. Pursuant to the
• 30:32
  Speaker 1: 4th Judicial District Rule 5.3, the state is not requesting
• 30:36
  Speaker 1: a hearing on this matter. Respectfully submitted this 31st day
• 30:40
  Speaker 1: of December 2024 and signed by Ashley Jennings. Alright folks,
• 30:46
  Speaker 1: and as you can see, we are off and running
• 30:48
  Speaker 1: now with this new paperwork when it comes to Kohlberger,
• 30:51
  Speaker 1: and there is a lot to get to. There have
• 30:54
  Speaker 1: been a lot of court filings as of late and
• 30:56
  Speaker 1: a lot of consequential court filings. So buckle up, get
• 31:00
  Speaker 1: yourselves a few snacks and a couple of drinks because
• 31:04
  Speaker 1: we're headed back to Moscow. All the information that goes
• 31:08
  Speaker 1: 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.
• 31:53
  Speaker 2: I don't know.
• 31:55
  Speaker 1: But there are some legal experts that are saying. That
• 31:57
  Speaker 1: all the evidence. That came with that leak. Should get
• 32:02
  Speaker 1: thrown out. Now I don't know if that's going to be.
• 32:05
  Speaker 1: What ends up happening here. But I have a funny feeling.
• 32:08
  Speaker 1: That this leak has really opened up. A can of worms.
• 32:12
  Speaker 1: So let's dive into this article. From Fox News. And
• 32:16
  Speaker 1: let's see where things currently stand.
• 32:19
  Speaker 2: Headline.
• 32:20
  Speaker 1: Brian Kohlberger case leak could lead to excluded evidence, Idaho
• 32:24
  Speaker 1: attorney warns. This article was authored by Adam Sabes and
• 32:28
  Speaker 1: Michael Ruiz. An Idaho-based lawyer said she thinks Judge Stephen
• 32:34
  Speaker 1: Hippler will absolutely hold prosecutors and law enforcement accountable after
• 32:39
  Speaker 1: sensitive information about the Brian Kohlberger quadruple murder case was leaked.
• 32:44
  Speaker 2: 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.
• 34:09
  Speaker 2: Have to be respected.
• 34:11
  Speaker 1: And if the state steps out of line and they're
• 34:13
  Speaker 1: committing constitutional errors, then there's going to be big problems.
• 34:19
  Speaker 1: Now of course we have to wait for the investigation, right?
• 34:21
  Speaker 2: We don't know.
• 34:23
  Speaker 1: But I will say this, we do know that there
• 34:25
  Speaker 1: were leaks, one way.
• 34:26
  Speaker 2: Or the other.
• 34:27
  Speaker 1: How else did Dateline get that information? New information about
• 34:32
  Speaker 1: the murders was shared during the May 9th NBC Dateline program,
• 34:36
  Speaker 1: which included surveillance video from a nearby house. The surveillance
• 34:40
  Speaker 1: video showed a car, similar to Kohlberger's, that was in
• 34:44
  Speaker 1: the area of the King Road house several times, just
• 34:47
  Speaker 1: before the four students were killed. And why would somebody
• 34:50
  Speaker 1: even leak this information at this point? What do you
• 34:53
  Speaker 1: have to gain by it? I don't understand the motivation. Like,
• 34:57
  Speaker 1: you want to throw the whole thing into jeopardy because
• 34:59
  Speaker 1: you want to get this information out there? Now, if
• 35:02
  Speaker 1: they were blowing the whistle on some prosecutorial misconduct, then
• 35:06
  Speaker 1: that would be one thing. But this is a whole
• 35:08
  Speaker 1: different thing entirely. And what they're doing is they're giving
• 35:11
  Speaker 1: over sensitive, gagged information that was never meant for public consumption.
• 35:17
  Speaker 1: And in doing so, they have tilted the table against
• 35:20
  Speaker 1: Brian Kohlberger. Or at the very least, opened the door
• 35:24
  Speaker 1: for his team to say that that's happening. And they're
• 35:26
  Speaker 1: already doing so. The program also claimed that the FBI's
• 35:30
  Speaker 1: cell phone tower data showed that Kohlberger's cell phone pinged
• 35:34
  Speaker 1: nearly a dozen times to a tower that provides coverage
• 35:37
  Speaker 1: to an area within 100 feet of 1122 King Road,
• 35:42
  Speaker 1: where he allegedly killed the four students.
• 35:44
  Speaker 2: Well, we knew that previously. We had heard that.
• 35:47
  Speaker 1: Now, maybe this was some kind of confirmation. And if
• 35:50
  Speaker 1: it was, it really goes to the heart of the
• 35:52
  Speaker 1: matter entirely because you can't confirm or deny anything that's
• 35:57
  Speaker 1: going on in that courtroom due to the gag order.
• 36:00
  Speaker 1: And whether you agree with the gag order or not
• 36:02
  Speaker 1: is neither here nor there. What matters is the gag
• 36:06
  Speaker 1: order is in place and you have to follow the
• 36:08
  Speaker 1: order that's been put forth by the court. And if
• 36:11
  Speaker 1: you don't, you have to expect that you're going to
• 36:13
  Speaker 1: get slapped. Edwina Elcox, a criminal defense attorney in Boise, Idaho,
• 36:19
  Speaker 1: told Fox News Digital she thinks Hipler is taking the
• 36:22
  Speaker 1: leak very seriously. I think prosecutors and law enforcement will
• 36:27
  Speaker 1: absolutely be held accountable, Elcox said, noting she has worked
• 36:31
  Speaker 1: on cases with Hipler as the judge. Elcox said she
• 36:35
  Speaker 1: absolutely thinks it's possible for evidence presented during the TV
• 36:39
  Speaker 1: episode to be excluded in court. And I certainly think
• 36:43
  Speaker 1: that that's a possibility. We know that Judge Hippler is
• 36:46
  Speaker 1: not the kind of guy that wants to play games.
• 36:49
  Speaker 1: So it's going to be interesting to see what the
• 36:51
  Speaker 1: penalty is, if there's a penalty, after this investigation. But
• 36:56
  Speaker 1: if and when it comes back that there was a leak,
• 36:58
  Speaker 1: I expect the punishment to be severe.
• 37:01
  Speaker 2: I really do.
• 37:02
  Speaker 1: And I think that he's going to set a precedent
• 37:04
  Speaker 1: moving forward, not only for this case, but cases that
• 37:07
  Speaker 1: come after it. And at this point, how many times
• 37:10
  Speaker 1: have we seen prosecutors absolutely screw things up? So yeah,
• 37:15
  Speaker 1: we have a long way to go when it comes
• 37:16
  Speaker 1: to Brian Koberger, and I think the evidence is very
• 37:19
  Speaker 1: strong against him, but the prosecutors might be getting in
• 37:23
  Speaker 1: their own way. And if I was one of these
• 37:25
  Speaker 1: family members, I'd have some severe reservations after this whole
• 37:29
  Speaker 1: entire ordeal. Can you imagine if the remedy for this
• 37:33
  Speaker 1: was all the evidence being excluded, Alcock said? I absolutely
• 37:37
  Speaker 1: think that that's in the realm of remedies. Now, I
• 37:40
  Speaker 1: don't think it's going to go that far, but I
• 37:42
  Speaker 1: think there's going to be penalties. What those penalties are
• 37:45
  Speaker 1: going to be, well, I think that's going to depend
• 37:47
  Speaker 1: on what the investigation turns up. But I have no
• 37:51
  Speaker 1: doubt whatsoever that the investigation is going to find something.
• 37:54
  Speaker 1: And when they do, it's going to be a bombshell.
• 37:59
  Speaker 1: Not only should it never happen under any circumstances, there
• 38:03
  Speaker 1: was a gag order, she added. Hipler said Thursday in
• 38:06
  Speaker 1: an order that the court's gag order was likely violated
• 38:10
  Speaker 1: by someone who at one point was associated with either
• 38:14
  Speaker 1: law enforcement or the prosecution team. So if it's somebody
• 38:17
  Speaker 1: who's a former member of the team, then I'm not
• 38:21
  Speaker 1: too sure how the judge is going to go about
• 38:24
  Speaker 1: handing down some kind of penalty for that. Because if
• 38:27
  Speaker 1: it's somebody that was formerly on the team, maybe they'll
• 38:30
  Speaker 1: just be punished and not the prosecution. Now, if it's
• 38:33
  Speaker 1: an active member of the prosecution or law enforcement, I
• 38:38
  Speaker 1: think that the penalties have to be severe. Now, what
• 38:42
  Speaker 1: those penalties are going to be, that's going to be
• 38:44
  Speaker 1: up to interpretation by the judge. But I think they're
• 38:46
  Speaker 1: going to be severe. And I think that it's going
• 38:49
  Speaker 1: to hamper the prosecution's case moving forward at least a
• 38:52
  Speaker 1: little bit, especially in the optics department. because it gives
• 38:56
  Speaker 1: it that tinge of, well, maybe something isn't right here.
• 39:00
  Speaker 1: Maybe they're trying to railroad Brian Kohlberger, and we all
• 39:03
  Speaker 1: know how the grifters love to latch on to some
• 39:05
  Speaker 1: shit like that. You're opening the door for some real
• 39:08
  Speaker 1: serious nonsense here, and you better believe that the carnival
• 39:11
  Speaker 1: barkers are going to walk right through that door. Hipler
• 39:15
  Speaker 1: ordered anyone who worked with either law enforcement or a
• 39:18
  Speaker 1: prosecution on this case to retain all communication and data
• 39:22
  Speaker 1: relating to the murder investigation. Such violations not only undermine
• 39:28
  Speaker 1: the rule of law, potentially by person. charged with upholding it,
• 39:31
  Speaker 1: but also significantly impede the ability to seat an impartial
• 39:35
  Speaker 1: jury and will likely substantially increase the cost to be
• 39:39
  Speaker 1: borne by the taxpayers of Latah County to prosecute this
• 39:43
  Speaker 1: case by extending the time it will take to seat
• 39:45
  Speaker 1: a jury and potentially requiring lengthy period of the jurors
• 39:49
  Speaker 1: being sequestered, Hipler wrote. Hipler also said he's open to
• 39:54
  Speaker 1: appointing a special prosecutor who'd investigate where the leak came from,
• 39:58
  Speaker 1: but hasn't made a decision. He gave a seven-day deadline
• 40:02
  Speaker 1: of prosecutors who were ordered to submit a list on
• 40:05
  Speaker 1: camera of all individuals within law enforcement and the prosecuting
• 40:10
  Speaker 1: agencies that have access to the information shared in the episode.
• 40:15
  Speaker 1: The Idaho Statesman investigative reporter, Kevin Fixler, told Fox News
• 40:19
  Speaker 1: America Reports he was surprised when the Dateline episode aired.
• 40:23
  Speaker 2: Yeah, so was I.
• 40:25
  Speaker 1: I mean, I couldn't believe that they were airing the
• 40:26
  Speaker 1: information that they aired, considering the gag order, and I
• 40:30
  Speaker 1: was wondering and saying to myself, where the hell did
• 40:32
  Speaker 1: they get this information?
• 40:34
  Speaker 2: 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.
• 42:09
  Speaker 2: And he's not wrong.
• 42:10
  Speaker 1: There's a lot of information that was released here, and
• 42:13
  Speaker 1: it needs to be sessed out. Morgan said the leak
• 42:17
  Speaker 1: might have the biggest impact if Kohlberger decides to file
• 42:20
  Speaker 1: an appeal after a jury hands down his decision 1,000%.
• 42:23
  Speaker 1: And this is what I said from the beginning. You
• 42:27
  Speaker 1: have to play the game worrying about the appeal the
• 42:30
  Speaker 1: whole entire time. Because if he's found guilty, you know
• 42:33
  Speaker 1: he's appealing this. It's not even a question. So why
• 42:36
  Speaker 1: give them any kind of tenable ground to stand upon?
• 42:40
  Speaker 1: But here we are, once again, with a prosecution shit
• 42:43
  Speaker 1: in the bed. Afterwards, if in fact Kohlberger is found guilty,
• 42:48
  Speaker 1: his attorneys are going to have a field day with
• 42:50
  Speaker 1: stuff like this, he said. Former Assistant U.S. Attorney Nima
• 42:55
  Speaker 1: Rahmani told Fox News Digital he doesn't think the leak
• 42:58
  Speaker 1: will have much of an impact on the case. People
• 43:01
  Speaker 1: should follow court orders, but this is more bluster than anything,
• 43:05
  Speaker 1: and I don't think much will come of it. This
• 43:08
  Speaker 1: is what happens when you have a very broad gag
• 43:10
  Speaker 1: order and it takes three and a half years to
• 43:12
  Speaker 1: finally get a murder case to trial. It's not realistic
• 43:15
  Speaker 1: to expect evidence not being leaked to the media for
• 43:17
  Speaker 1: years in the biggest murder trial in the country, Rahmani said.
• 43:22
  Speaker 1: And while that might be true, I don't think Judge
• 43:24
  Speaker 1: Hippler feels the same way. So we'll see what Judge
• 43:27
  Speaker 1: Hippler decides. And when that order hits the docket one
• 43:30
  Speaker 1: way or the other, we'll get it added to the catalog.
• 43:33
  Speaker 1: But 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.