Latest / Beyond The Horizon / Mega Edition: Bryan Kohberger And His Challenge Of The IGG Evidence (8/20/26)

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Mega Edition: Bryan Kohberger And His Challenge Of The IGG Evidence (8/20/26) · 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 head back up to Moscow
0:06
Speaker 1: and we're going to get an update on what's going
0:08
Speaker 1: on with the DNA and how the situation that's unfolding
0:13
Speaker 1: here could shape case law. So let's dive into this
0:18
Speaker 1: article by the Idaho Statesman and let's see what author
0:21
Speaker 1: Kevin Fixler has come up with headline, how a DNA
0:26
Speaker 1: technique to pin Brian Colberger as Idaho murder suspect could
0:30
Speaker 1: shape case law. This article was authored by Kevin Fixler.
0:35
Speaker 1: What if Brian Colberger, the man charged with the University
0:38
Speaker 1: of Idaho's student stabbings, help lead police write to him.
0:42
Speaker 1: His own attorneys may raise the question, including at trial
0:46
Speaker 1: in their efforts to defend him. Coberger is accused of
0:49
Speaker 1: killing four u OFI students in November of twenty twenty two,
0:53
Speaker 1: in a case that continues to collect national intrigue. Well,
0:57
Speaker 1: no doubt about it, but it's been pretty much a
0:59
Speaker 1: black hole as far as information goes lately. There hasn't
1:03
Speaker 1: been much going on. We don't have much going on
1:06
Speaker 1: as far as core documents, We don't have much going
1:09
Speaker 1: on as far as reports. So we're kind of at
1:12
Speaker 1: a standstill. Now. We'll get a flurry of information once
1:16
Speaker 1: the judge starts making some rulings, but until then, we're
1:20
Speaker 1: pretty much stuck in neutral when it comes to the
1:22
Speaker 1: murders in Moscow. By the end, it could create new
1:25
Speaker 1: case law for criminal investigations across the United States. Legal
1:29
Speaker 1: scholars told The Idaho Statesman, Yeah, this is one of
1:32
Speaker 1: those landmark cases where the rulings here made by judge
1:36
Speaker 1: judge are going to have an impact nationwide because this
1:39
Speaker 1: is something that doesn't come up too often. And we're
1:42
Speaker 1: talking about a new technology for the most part when
1:45
Speaker 1: we're talking about IgG and the authorities using it to
1:48
Speaker 1: their benefit. So the ruling here and whatever is decided
1:52
Speaker 1: is going to cause waves throughout the nation when we're
1:55
Speaker 1: talking about other situations such as this, and what will
1:59
Speaker 1: happen is one way or the other. This ruling is
2:01
Speaker 1: going to create precedent. And Taylor Colberger's lead public defender,
2:06
Speaker 1: said she has repeatedly poured over law enforcement evidence summary
2:10
Speaker 1: to justify his arrest and still wants to know what
2:13
Speaker 1: led police to her client as the suspect. Well, we
2:17
Speaker 1: know it was the DNA left on that sheath. Once
2:20
Speaker 1: that DNA was left on that sheath, it was only
2:22
Speaker 1: a matter of time before the investigators found who that
2:25
Speaker 1: DNA belonged to. The clear picture that I'm concerned about
2:29
Speaker 1: is the state's pathway of how Brian Colberger comes to
2:32
Speaker 1: their attention and is identified. Taylor told the court at
2:36
Speaker 1: a hearing last month, over a year into this case,
2:39
Speaker 1: and we're not sure. I know different pieces, but I
2:42
Speaker 1: don't know where they fit together. Well, that's all gonna
2:46
Speaker 1: reveal itself, right, That's what this whole process is for.
2:50
Speaker 1: And as far as Brian Colberger goes and his guilt
2:54
Speaker 1: or his innocence, that's all going to be told by
2:57
Speaker 1: the DNA. You can say whatever you want, but unless
3:02
Speaker 1: you can explain how that DNA got on the knife
3:04
Speaker 1: sheath and ended up under the body of Madison Mogan,
3:08
Speaker 1: you're not going to be able to convince a jury
3:10
Speaker 1: that it wasn't Brian Colberger. You're gonna need more evidence.
3:13
Speaker 1: You can try and punch holes in the work that
3:15
Speaker 1: the police did, and you can look for prosecutorial misconduct,
3:19
Speaker 1: and you most certainly can try and attempt to use
3:21
Speaker 1: the whole entire loopholes and technicalities defense. But I don't
3:25
Speaker 1: think it's going to work out for Brian Colberger the
3:28
Speaker 1: way he thinks it might work out. And that's simply
3:30
Speaker 1: because the totality of the evidence that we have seen
3:33
Speaker 1: presented against him thus far. And I'm not talking about
3:36
Speaker 1: just one piece of evidence. I'm talking about all of
3:39
Speaker 1: it added up. When you look at all that evidence
3:41
Speaker 1: and add it all up, I don't know how you
3:43
Speaker 1: come to any place but Brian Coolberger being the top
3:47
Speaker 1: dog when we're talking about suspects. Depending on the circumstances
3:51
Speaker 1: that come to light, it could be grounds for a
3:53
Speaker 1: constitutional rights challenge over the methods police used to find
3:58
Speaker 1: and charge Coburger. His defense attorneys have said, Oh, yeah,
4:02
Speaker 1: I'm sure loopholes, technicalities. Where was your client on the
4:06
Speaker 1: morning of these murders? Are there any witnesses that can
4:10
Speaker 1: you know, corroborate his alibi? Oh there's not, Okay, Well,
4:14
Speaker 1: how did his DNA get on the sheath? How did
4:17
Speaker 1: that DNA pop pot for his bugle swab? These are
4:20
Speaker 1: all the questions that the jury's going to have, and
4:22
Speaker 1: they're all very basic questions that Brian Colberger and his
4:25
Speaker 1: defense team just can't answer. And the way that they're
4:28
Speaker 1: grasping for loopholes and technicalities. It really tells you the story.
4:33
Speaker 1: They understand that they're up against it, and the only
4:36
Speaker 1: way that they're going to be able to get Coburger
4:38
Speaker 1: off is if the prosecution did something on towards because
4:41
Speaker 1: as of now, the evidence that we have seen, it's
4:44
Speaker 1: overwhelming in a probable cause abid David police described using
4:48
Speaker 1: traditional investigative techniques to arrive at Coburger as a suspected
4:53
Speaker 1: killer and close an almost seven week manhunt that confoundingly
4:57
Speaker 1: ended on the other side of the country in eastern Pennsylvania.
5:01
Speaker 1: DNA evidence also factored for police to allege they had
5:05
Speaker 1: their suspect, but only after the other elements established through
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Speaker 1: surveillance footage of the suspects car and Coburger's cell phone
5:13
Speaker 1: location data fell into place. According to the Affidavid, all
5:17
Speaker 1: very basic investigative technique. This is how it works. Starts
5:22
Speaker 1: with one little crumb, one little thread, You pull on
5:25
Speaker 1: that and before you know it, you're finding yourself some
5:28
Speaker 1: pay dirt. But six months after Coburger's December twenty twenty
5:33
Speaker 1: two arrest, state prosecutors acknowledged for the first time that
5:37
Speaker 1: an advanced DNA technique known as investigative genetic genealogy or IgG,
5:43
Speaker 1: located at a crime scene to public genealogy websites to
5:47
Speaker 1: build a family tree related to possible suspects and narrow
5:51
Speaker 1: an investigation. Police made no mention of the FBI's use
5:55
Speaker 1: of IgG in the Affidavid. They don't have to that's
5:59
Speaker 1: pretty simple. They don't have to give you all the
6:01
Speaker 1: information in the Affidavid. They just have to give enough
6:04
Speaker 1: to have a judge think that there is probable cause
6:07
Speaker 1: there to make an arrest, point blank period. They don't
6:11
Speaker 1: have to unfold and unfurl their whole entire case for
6:14
Speaker 1: the affid David. They just have to have enough there
6:17
Speaker 1: to get the process started, so they can attempt to
6:19
Speaker 1: maneuver in that direction. But I don't think they're gonna
6:22
Speaker 1: find pay dirt. A single source of mail DNA was
6:26
Speaker 1: pulled and processed from a leather sheath for a k
6:29
Speaker 1: bar combat style knife discovered under one of the forest
6:32
Speaker 1: stabbing victims at the off campus Moscow home. The four
6:36
Speaker 1: u OFI students were seniors Madison Mogan and Kaylee Gonsalvis,
6:40
Speaker 1: both twenty one juniors Anna Kernodle and freshman Ethan Chapin,
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Speaker 1: both twenty At the time, Coburger twenty nine, was a
6:49
Speaker 1: graduate student of criminal justice and criminology at Washington State
6:53
Speaker 1: University in Pullman, about nine miles west of Moscow. Coburger's
6:57
Speaker 1: attorneys have said there were no connections between him and
7:01
Speaker 1: the victims. Well, we've seen that disputed. We've had reports
7:05
Speaker 1: that he was following them on Instagram, reports that he
7:09
Speaker 1: was on the campus in Moscow, and we've also had
7:12
Speaker 1: reports that he was at the Mad Greek. So I've
7:16
Speaker 1: said from the beginning that I think the genesis of
7:18
Speaker 1: all of this was the Mad Greek. I think that's
7:21
Speaker 1: where he first saw Maddie and got this disgusting ass
7:24
Speaker 1: idea in his brain. Now that's my speculation. That has
7:28
Speaker 1: not been confirmed or anything like that, but it seems
7:31
Speaker 1: like the most likely path here. In the court filing
7:35
Speaker 1: that revealed the FBI's use of IgG LETA County prosecutor
7:39
Speaker 1: Bill Thompson argue that the state was not required to
7:42
Speaker 1: disclose the DNA technique. Prosecutors did not intend to introduce
7:46
Speaker 1: it at trial, he said, and it was irrelevant to
7:49
Speaker 1: Coberger's defense. Instead, they planned to present a comparison of
7:53
Speaker 1: DNA evidence police obtained from a swab of Coberger's cheek
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Speaker 1: during the arrest against the knife sheath DNA, which showed
8:00
Speaker 1: a statistical match. Thompson said the IgG process pointed law
8:05
Speaker 1: enforcement toward Coburger, but it did not provide law enforcement
8:09
Speaker 1: with substantiative evidence of guilt. Thompson wrote in the court filing,
8:14
Speaker 1: the IgG information is not material to the preparation of
8:18
Speaker 1: the defense. For eight months, the two sides fought over
8:21
Speaker 1: the release of the IgG records to the defense through
8:25
Speaker 1: the legal process known as discovery. Judge John Judge of
8:28
Speaker 1: the second Judicial District in Leta County, who is overseeing
8:32
Speaker 1: the Coburger case, last month granted the defense at least
8:35
Speaker 1: some of the FBI's records from the IgG process. What
8:39
Speaker 1: was turned over and what may have been withheld is
8:42
Speaker 1: unclear to the public because the documents were sealed. There's
8:46
Speaker 1: no doubt that Judge Judge has given these guys all
8:50
Speaker 1: kinds of wiggle room. He's given Brian Colberger every chance
8:55
Speaker 1: in the world to prove his innocence, and unfortunately for
8:58
Speaker 1: Brian Colberger and his team, they haven't come up with
9:01
Speaker 1: anything just yet. Tiffany Roy, a long time forensic DNA expert,
9:06
Speaker 1: said Coburger's defense team is perhaps working toward leveraging its
9:11
Speaker 1: recent access to the FBI records to make a constitutional
9:14
Speaker 1: rights claim against the legal search and seizure under the
9:17
Speaker 1: Fourth Amendment. Prosecutors' attempts to conceal information about the use
9:22
Speaker 1: of IgG to identify a suspect alone should give the
9:25
Speaker 1: public pause. Roy, who also holds a law degree, said
9:29
Speaker 1: in a phone interview with The Statesman, Yeah, I don't
9:31
Speaker 1: know about that. If you put your DNA into one
9:34
Speaker 1: of these public databases, what do you think is going
9:37
Speaker 1: to happen. You're just going to trust them to protect
9:40
Speaker 1: your DNA, to protect your information, Okay. I mean if
9:44
Speaker 1: that's what you believe is going to happen, then great.
9:46
Speaker 1: Me personally, I'm not giving my DNA to nobody, So
9:49
Speaker 1: I think that attempt is going to fall flat. I
9:52
Speaker 1: don't understand the government's argument here. Roy said, you have
9:55
Speaker 1: an obligation to expose every part of your investigation and
9:58
Speaker 1: then we decide what is in. If the FBI were
10:01
Speaker 1: doing the right thing, they wouldn't have to make these arguments.
10:04
Speaker 1: Put it all out on the table. That's not how
10:06
Speaker 1: it works. This is a lawyer saying that shocking, a
10:09
Speaker 1: defense lawyer saying that you don't get everything. You only
10:14
Speaker 1: get the material that's discoverable. And that's what the argument's
10:17
Speaker 1: about here. Is this material discoverable or not. If it's
10:21
Speaker 1: not discoverable, then they don't have access to it. Whatever
10:24
Speaker 1: parts of it are discoverable, they'll get access to it
10:27
Speaker 1: now that Judge Judge has had a look. Prosecutors won't
10:31
Speaker 1: say which websites FBI used for IgG already. The Coburger
10:35
Speaker 1: case has broken new ground. According to David Gurney, director
10:39
Speaker 1: of the IgG Center and Professor of Law and Society
10:43
Speaker 1: at Ramapo College of New Jersey, never before in a
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Speaker 1: case has the defense team received access to this level
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Speaker 1: of IgG records in discovery. He said, so right there,
10:54
Speaker 1: it just shows you what I've been telling you about Judge. Judge.
10:57
Speaker 1: He's given Brian Colberger every chance in the world to
11:00
Speaker 1: defend himself like he should. We're talking about a man
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Speaker 1: that's on trial literally for his life. So if there's
11:07
Speaker 1: some kind of untowards behavior, we need to know about it.
11:10
Speaker 1: But unfortunately for Coburger, I haven't seen any and all
11:14
Speaker 1: of this other stuff is fine and well, and sure
11:18
Speaker 1: give him access to whatever is discoverable. That's how it works.
11:21
Speaker 1: But besides that, what gives Brian Colberger the right to
11:25
Speaker 1: have access to stuff that's not discoverable. The next battle
11:28
Speaker 1: between the attorneys on each side of the Coburger case
11:31
Speaker 1: could be over whether the defense will be allowed to
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Speaker 1: present IgG evidence to the jury at trial. Gurney told
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Speaker 1: the Statesmen by phone. IgG records have been introduced at
11:41
Speaker 1: trial a couple of times before, he said, but only
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Speaker 1: when prosecutors chose to do so, when they felt it
11:47
Speaker 1: beneficial to their case. And again, the prosecution they decide
11:51
Speaker 1: what they're going to use as evidence, right, so if
11:53
Speaker 1: something isn't going to be used as evidence, it's not discoverable,
11:57
Speaker 1: just to reiterate that, and this is not going to
12:00
Speaker 1: be used as evidence according to the prosecutors. Now that
12:04
Speaker 1: is kind of, you know, being a bit koy, if
12:07
Speaker 1: you will, considering it was the information used to lead
12:10
Speaker 1: them to Coburger, but according to them, that part of
12:15
Speaker 1: it is not discoverable. So we'll see what Judge Judge
12:18
Speaker 1: has to say. And the way Judge Judge has been
12:21
Speaker 1: conducting this case, I would say that he'll probably end
12:24
Speaker 1: up splitting the baby once again, and both sides will
12:27
Speaker 1: get a little bit. It's potentially novel in that way,
12:31
Speaker 1: Kurney said, explaining the defense potential strategy. If it comes
12:34
Speaker 1: to fruition, I would try to get all of this
12:37
Speaker 1: information in front of the jury. I would just try
12:39
Speaker 1: to muddy the waters by showing, oh, the state did
12:42
Speaker 1: all these bad things, so therefore you should not trust
12:45
Speaker 1: them at all. Loopholes, technicalities. This is how somebody like
12:50
Speaker 1: Brian Coberger can win. It's the only way because the
12:54
Speaker 1: evidence that we have seen anyway is stacked against them.
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Speaker 1: For instance, prosecutors have not publicly disclosed which genealogy websites
13:02
Speaker 1: police used to land on Coburger, only that the FBI
13:06
Speaker 1: submitted the crime scene DNA to one or more of
13:09
Speaker 1: the publicly available services. Law enforcement primarily works with two
13:14
Speaker 1: lesser known websites called ged match and family Tree DNA,
13:19
Speaker 1: but has, at least in some past instances, found ways
13:23
Speaker 1: to access DNA profiles on a more widely used platform
13:27
Speaker 1: with more users, Gurney and Roy said, and other IgG
13:30
Speaker 1: experts testified in an August hearing for Coberger's defense, Well, again,
13:36
Speaker 1: why Are you putting your DNA out there? With all
13:39
Speaker 1: of the data breaches we see on a daily basis,
13:41
Speaker 1: all of the hacking and all the other nonsense. Probably
13:45
Speaker 1: not a good idea to have your DNA out there.
13:48
Speaker 1: I mean, I guess people have curiosities about their ethnicity
13:52
Speaker 1: and whatnot, and I get it, But I'm way too
13:55
Speaker 1: private and way too worried about shit going south and people,
13:59
Speaker 1: you know, reaching the security stealing it. Not like they
14:02
Speaker 1: could do much with it, probably, but still the idea
14:05
Speaker 1: that it's out there, it's weird to me. They have
14:08
Speaker 1: access to ged match and family Tree DNA and that's it.
14:12
Speaker 1: Roy said. So if they didn't get what they wanted
14:15
Speaker 1: from those databases and need to fish around on other databases,
14:18
Speaker 1: I would be really uncomfortable with that. Ancestry dot com
14:22
Speaker 1: and twenty three dot me are much more popular competitors
14:26
Speaker 1: in the genealogy industry, but neither of the direct to
14:29
Speaker 1: consumer services cooperates with law enforcement. According to their websites,
14:34
Speaker 1: Oh yeah, I'm sure, I'm sure they don't cooperate. Ever, Instead,
14:37
Speaker 1: investigators have in other cases previously reviewed DNA profiles on
14:42
Speaker 1: my Heritage. Yet another of the genealogy platforms available online.
14:47
Speaker 1: Gurnie and Roy said the reason that they would have
14:50
Speaker 1: done it if they did, is it gives you access
14:53
Speaker 1: to a much larger number of people, a much larger
14:56
Speaker 1: number of matches, and in theory, that will make your
14:58
Speaker 1: job easier. Gurnie said, if the IgG records, now in
15:02
Speaker 1: the defense's possession divulged that FBI investigators conducted themselves in
15:07
Speaker 1: an improper way or violated expectations of privacy to get
15:11
Speaker 1: to Coburger, it may help create legal openings for creating
15:15
Speaker 1: doubt about the evidence. They added, Hey, look that's possible
15:19
Speaker 1: if they can punch enough holes in this yere and
15:21
Speaker 1: if this evidence was collected illegally, then the prosecution is
15:26
Speaker 1: going to have big problems. The issue is going to
15:28
Speaker 1: be for Coburger and his team to prove that. They're
15:31
Speaker 1: going to have to prove that that happened, and it's
15:34
Speaker 1: going to be difficult for them to do so. It's
15:37
Speaker 1: a good tool, but the question is does it violate
15:39
Speaker 1: civil rights? Said Greg Hampikin, a biology professor at Boise
15:44
Speaker 1: State University who heads the Idaho Innocence Project. Well, he's
15:49
Speaker 1: not exactly not biased, right if he heads the Innocence
15:52
Speaker 1: Project chances are well, he thinks Brian Colberger's innocent or
15:56
Speaker 1: at the very least, wants to make sure that moving forward,
15:59
Speaker 1: if they're there's some kind of tenable ground to be
16:01
Speaker 1: found here that clients later on can use it. So,
16:04
Speaker 1: mister Hampakean, my guess is is slanted towards all this
16:09
Speaker 1: information being handed over to the clients, to the people
16:12
Speaker 1: that he defends. Some say it's just another technique, but
16:16
Speaker 1: this technique involves something more intimate than a body cavity search,
16:20
Speaker 1: and it's in every single cell in your body search. Well,
16:22
Speaker 1: if that's the case, why are you putting your DNA
16:25
Speaker 1: out there? And as far as it being more invasive
16:28
Speaker 1: than a body cavity search, yeah, okay, buddy, talk about hyperbole.
16:33
Speaker 1: I'm sure my guy is lining up to have you know,
16:36
Speaker 1: the TSA agents at the airport rifle through his rear
16:39
Speaker 1: end face with the task of defending Coburger. Los Angeles
16:43
Speaker 1: based criminal defense attorney Joshua Ritter said he would pursue
16:46
Speaker 1: the same approach and try to create questions in the
16:49
Speaker 1: minds of jurors about the DNA evidence. The host of
16:52
Speaker 1: True Crime Daily Sidebar podcast said the whole case enges
16:56
Speaker 1: on this issue based on what prosecutors have disclosed today.
17:01
Speaker 1: He's not wrong about that the DNA is the lynchpin.
17:04
Speaker 1: I've said that from the jump. Without the DNA, the
17:07
Speaker 1: case is nowhere near as strong. The probable cause Affidavid
17:12
Speaker 1: was well done and showed high level police work, but
17:15
Speaker 1: the remaining evidence against Coburger becomes very tenuous and circumstantial
17:19
Speaker 1: if the DNA is removed from the equation. Ritter told
17:23
Speaker 1: The Statesman by phone that the defendant lived in the area,
17:26
Speaker 1: had suspicious driving habits, and possibly turned off the cell
17:29
Speaker 1: phone at the time of the homicide. Makes for a
17:32
Speaker 1: much harder case for prosecutors to prove beyond the reasonable doubt,
17:37
Speaker 1: he said. I think everybody agrees this case rises and
17:41
Speaker 1: falls on the DNA. Ridder said their ability to match
17:44
Speaker 1: Coburger to the knife sheath at the crime scene is
17:47
Speaker 1: the seminal cornerstone of the evidence one thousand percent. Once
17:52
Speaker 1: they get that locked in, it's a wrap for Brian Colberger.
17:56
Speaker 1: Police also said they link the crime scene DNA to
17:58
Speaker 1: other DNA acquired from the trash they took from Coburger's
18:02
Speaker 1: family home in Pennsylvania. The comparison showed that DNA from
18:05
Speaker 1: the trash was the mal suspect's biological father with nearly
18:09
Speaker 1: one hundred percent certainty. According to the Avid David, the
18:13
Speaker 1: critical role of the case's DNA evidence is likely to
18:16
Speaker 1: play is precisely why Coburger's attorneys have made it a
18:20
Speaker 1: focal point of their pre trial efforts. Several attorneys and
18:23
Speaker 1: DNA experts told the Statesmen successfully securing the IgG records
18:28
Speaker 1: was the first step. I mean, okay, but it's more
18:32
Speaker 1: of Judge, Judge splitting the baby and trying to be fair.
18:36
Speaker 1: There's no merit here, there's no precedent here, so it's
18:39
Speaker 1: going to be very difficult. Remember we talked about the
18:42
Speaker 1: uphill climb in the snow with no shoes. That's where
18:46
Speaker 1: Coburger's at right now as we speak. At the August hearing,
18:50
Speaker 1: Coburger's defense attorneys told judge that without the requested information,
18:55
Speaker 1: they couldn't effectively defend their client in his capital murder case.
18:59
Speaker 1: For example, the defense shouldn't have to take the state's
19:02
Speaker 1: word that Coburger's DNA was found on the knife sheath.
19:05
Speaker 1: The use of IgG and order of events in the
19:08
Speaker 1: Moscow homicide investigation leading up to Coburger's arrest are crucial
19:12
Speaker 1: to providing sound defense. They told the court, we can't
19:16
Speaker 1: articulate to you because of the lack of the data
19:18
Speaker 1: of the sequence of exactly how they got to our
19:21
Speaker 1: client and what happened when and in what order, said
19:25
Speaker 1: Alisa Massof, another of Coburger's defense attorneys. And if it's
19:29
Speaker 1: shown that law enforcement brushed up against privacy rules in
19:32
Speaker 1: their pursuit of a suspect through IgG, she said, the
19:36
Speaker 1: defense desying a constitutional challenge. All right, folks, we're gonna
19:39
Speaker 1: wrap up well part one here and in the next
19:41
Speaker 1: episode we'll pick up with part two. All of the
19:44
Speaker 1: information that goes with this episode can be found in
19:48
Speaker 1: the description box. What's up, everyone, and welcome back to
19:51
Speaker 1: the program. In this episode, we're gonna pick up where
19:54
Speaker 1: we left off with the article from the Idaho Statesman
19:58
Speaker 1: talking about Brian and the IgG evidence. This article, once
20:03
Speaker 1: again was authored by Kevin Fixler. I'm not sure if
20:08
Speaker 1: it raises constitutional questions. Based on legal precedent, criminal defendants
20:13
Speaker 1: do not have privacy rights under the Fourth Amendment to
20:16
Speaker 1: evidence they allegedly left behind at a crime scene. Police
20:20
Speaker 1: also do not need a warrant to acquire potential evidence
20:23
Speaker 1: from discarded garbage taken to the curb. Yeah, you don't
20:27
Speaker 1: need a trash poll warrant for that. The second that
20:29
Speaker 1: you put your trash out on the street, that makes
20:33
Speaker 1: it public property. That's why people can come and dig
20:35
Speaker 1: through your trash and do whatever they want. Now, if
20:38
Speaker 1: you keep your cans on your property, you know, up
20:41
Speaker 1: in your driveway or whatever, then nobody can go into
20:44
Speaker 1: those cans, according to the law, and go through and
20:48
Speaker 1: take anything out. But the trash pull that was conducted
20:51
Speaker 1: on Coburger was completely on the up and up. In addition,
20:55
Speaker 1: swabs of a suspect's cheek for DNA are legal with
20:58
Speaker 1: a search warrant. Criminal defendant who was discovered through investigative
21:03
Speaker 1: techniques such as IgG cannot vicariously assert the Fourth Amendment
21:07
Speaker 1: rights of others whose privacy may have been violated from
21:11
Speaker 1: a lack of consent, the group of legal experts told
21:14
Speaker 1: the Statesman, And this is what I've been saying. This
21:17
Speaker 1: is all fine and well to make this argument, but
21:20
Speaker 1: is it going to have any merit when the rubber
21:23
Speaker 1: meets the road. And I don't think it's going to
21:26
Speaker 1: not to the effect of what Coberger's team is hoping
21:29
Speaker 1: for anyway, Now they might get a little bit because
21:33
Speaker 1: that's Judge Judge's style. It seems to give, you know,
21:37
Speaker 1: somebody like Coburger the benefit of the doubt, and that's
21:40
Speaker 1: what the judge should be doing, right. Brian's not guilty yet,
21:43
Speaker 1: he hasn't been found guilty yet, so Judge Judge is
21:46
Speaker 1: treating it as an innocent man on trial for his life.
21:50
Speaker 1: And if I had somebody that was sitting as a
21:53
Speaker 1: judge in my judgment, I'd want him to be somebody
21:56
Speaker 1: like Judge Judge as well. I'm not usually a big
21:59
Speaker 1: fan of Judge for the most part, because they all
22:02
Speaker 1: run their courtrooms as if they were their own fiefdoms.
22:05
Speaker 1: But in my opinion, Judge Judge has done a marvelous
22:09
Speaker 1: job so far with this whole, entire, very difficult situation. Thompson, however,
22:15
Speaker 1: tried to get ahead of a possible for the amendment
22:17
Speaker 1: claim in the Coburger case in his arguments against Judge,
22:21
Speaker 1: giving the defense the IgG records used to find them.
22:24
Speaker 1: The defense would first have to establish that the defendant
22:28
Speaker 1: had a reasonable expectation of privacy to allege that law
22:31
Speaker 1: enforcement committed such a violation. He wrote, the kbar knife
22:36
Speaker 1: sheath was abandoned at the crime scene, as was the
22:39
Speaker 1: DNA inside of it. Thompson wrote, defendant cannot show he
22:43
Speaker 1: had a reasonable expectation of privacy in DNA left at
22:47
Speaker 1: the scene of a quadruple homicide, or in the genetic
22:50
Speaker 1: information of his relatives who voluntarily provided their own DNA
22:54
Speaker 1: to a genetic genealogy service. And that's what it comes
22:57
Speaker 1: down to. Want to blame somebody, Blame your family members
23:02
Speaker 1: for putting your DNA into the database. That's basically what
23:07
Speaker 1: mister Thompson is saying here. This is public information. You're
23:12
Speaker 1: putting your stuff out there in these genetic databases. Well,
23:15
Speaker 1: anything can happen. Now as far as the process used
23:18
Speaker 1: by the prosecutors to get this information, we'll have to
23:21
Speaker 1: see how that all plays out. I'm not going to
23:23
Speaker 1: sit here and tell you everything was above board. I
23:25
Speaker 1: don't know, but I will say this, the fact that
23:29
Speaker 1: they're focusing so much on this specific part shows us
23:33
Speaker 1: exactly where the defense thinks that they're the weakest. In addition,
23:38
Speaker 1: local law enforcement did not use the FBI's IgG results
23:42
Speaker 1: in support of Coburger's arrest or any search warrants obtained
23:46
Speaker 1: by police. Jeff Nye, not to be confused with Bill Nye,
23:50
Speaker 1: the Science Guy, chief deputy for the Idaho Attorney General's
23:54
Speaker 1: Criminal Law Division, said at the August hearing the assertion
23:58
Speaker 1: would seem to target arguments that any evidence investigators produced
24:02
Speaker 1: afterward is spoiled because it was illegally obtained and therefore
24:06
Speaker 1: inadmissible at trial, based on the so called fruit of
24:09
Speaker 1: the poisonous tree doctrine. Likewise, Brandon Garrett, a constitutional law
24:15
Speaker 1: professor at Duke University's Law School, is skeptical of a
24:18
Speaker 1: possible civil liberties claim over law enforcement's use of publicly
24:23
Speaker 1: available information as part of a criminal investigation. The use
24:27
Speaker 1: of advanced genetic tools is just a few decades old,
24:31
Speaker 1: and the courts have been slow to consider granting what
24:34
Speaker 1: would essentially be a new privacy right protected under the
24:37
Speaker 1: Fourth Amendment, he said, and I don't think this is
24:40
Speaker 1: going to be the case that changes it. This is
24:43
Speaker 1: something that I think is going to have to go
24:45
Speaker 1: to the Supreme Court at some point because it's a
24:48
Speaker 1: very serious issue one way or the other. But as
24:50
Speaker 1: of now, case law certainly points to the prosecutors being
24:54
Speaker 1: in the right with everything that they've done. If a
24:57
Speaker 1: person using genealogy website read to allow police to include
25:01
Speaker 1: their DNA profile for IgG searches, it amounts to a
25:05
Speaker 1: possible violation of the terms of service by law enforcement,
25:09
Speaker 1: Garrett said in a phone interview with The Statesman. But
25:13
Speaker 1: I'm not sure if it raises constitutional questions, he said.
25:16
Speaker 1: It raises a larger question of is there a constitutional
25:19
Speaker 1: right to genetic privacy? And we don't have clear answers.
25:23
Speaker 1: We don't know what the courts will do with it,
25:25
Speaker 1: even if it's a super interesting and an important problem.
25:29
Speaker 1: And again, this is something that the Supreme Court is
25:31
Speaker 1: going to have to take up. This isn't something that's
25:34
Speaker 1: going to be decided at a state level, at least
25:37
Speaker 1: not in my opinion. Anyway, you would think that the
25:39
Speaker 1: Supreme Court would want to get involved in something that
25:42
Speaker 1: has this kind of impact, not only locally in Idaho,
25:47
Speaker 1: but nationwide. At the August hearing, Judge Proud of the
25:50
Speaker 1: defense on the relevance of the IgG records, including in
25:54
Speaker 1: a hypothetical situation where the FBI was found to have
25:57
Speaker 1: skirted the rules to arrive at Coberg, He questioned, whose
26:01
Speaker 1: constitutional rights would have been violated in the circumstance. I
26:06
Speaker 1: don't want to get into the Fourth Amendment issues here.
26:08
Speaker 1: I think that's a gray area for sure, Judge said.
26:11
Speaker 1: What it suggests is that folks should probably be cautious
26:15
Speaker 1: about sending their spit to some corporation. But I don't
26:18
Speaker 1: know how much that's going to bear on what ultimately happens,
26:21
Speaker 1: given the sequence of what happened with mister Coberger. He added.
26:26
Speaker 1: After police found the knife sheath, the Idaho State Crime
26:29
Speaker 1: Lab in Meriden located the DNA on its button snap
26:33
Speaker 1: the Avid. David said no matches were found in the
26:36
Speaker 1: National Criminal Offender Database, so the DNA was sent to
26:40
Speaker 1: an unidentified private lab to begin the IgG process. Thompson said,
26:45
Speaker 1: in the court filing and also let's remember in the
26:48
Speaker 1: court filings themselves that we've been through, it says that
26:52
Speaker 1: the investigators can send this information, this evidence to any
26:57
Speaker 1: lab or you know, group that's worse working with them,
27:01
Speaker 1: So that would certainly include Authrum. The lab is believed
27:04
Speaker 1: to be Texas based Authrum, which Idaho State Police said
27:08
Speaker 1: has maintained a contract with the state for forensic genetic work,
27:12
Speaker 1: including IgG since the summer of twenty twenty one, and
27:16
Speaker 1: Authorum is the head of the class when it comes
27:18
Speaker 1: to this kind of work. They are, you know, the
27:21
Speaker 1: pinnacle when you're talking about tracking DNA looking for genetics.
27:26
Speaker 1: Authoram is where it's at. The defense is twice said
27:29
Speaker 1: the private lab Authrum, though prosecutors have never confirmed the
27:33
Speaker 1: name of the lab involved and Authorum has not responded
27:36
Speaker 1: to Statesman's requests for comment. Law enforcement working the Coburger
27:41
Speaker 1: case decided the FBI would take over the IgG process,
27:45
Speaker 1: and investigators began building family trees to try to get
27:48
Speaker 1: to a suspect. The FBI then sent a tip to
27:52
Speaker 1: local police to investigate, but produced limited records in the
27:55
Speaker 1: process and remove the DNA profile from the genealogy website
28:00
Speaker 1: they used, per Department of Justice policy. Thompson wrote, so
28:04
Speaker 1: everything looks to be on the up and up again
28:06
Speaker 1: with the prosecution, you just never know. You have to
28:09
Speaker 1: be cautious, and that's why we go through this with
28:12
Speaker 1: a fine tooth comb. But as of now, everything that
28:16
Speaker 1: they've done as far as the genealogy has been approved
28:20
Speaker 1: by the court or something that has been in line
28:23
Speaker 1: with the way these procedures go. The States argument that
28:27
Speaker 1: the IgG investigation is wholly irrelevant since it was not
28:30
Speaker 1: used obtaining any warrants and will not be used at trial,
28:33
Speaker 1: is well supported, Judge ruled in October. Nonetheless, Coburger is
28:38
Speaker 1: entitled to view at least some of the IgG information
28:41
Speaker 1: and preparing his defense, even if it may ultimately be
28:44
Speaker 1: found to be irrelevant. A pre trial hearing is schedule
28:48
Speaker 1: for Wednesday in a Moscow to clarify how the defense
28:51
Speaker 1: may use the IgG records, including which experts may review them.
28:56
Speaker 1: Coburger submitted for DNA testing. Neighbor says still another scenario
29:01
Speaker 1: could exist. The FBI may have used the crime scene
29:04
Speaker 1: DNA to conduct an IgG search and instead landed directly
29:08
Speaker 1: on Coburger's own DNA profile on a genealogy website. Yikes,
29:13
Speaker 1: imagine if they did that. That's an absolute rap for
29:17
Speaker 1: Brian Colberger. No leg to stand on, no privacy concerns.
29:21
Speaker 1: Why are you sending your DNA profile to one of
29:24
Speaker 1: these websites and then you're gonna go out and murder people.
29:27
Speaker 1: You're getting everything you deserve at that point. Coburger more
29:31
Speaker 1: than a year before the u OFI student homicide told
29:34
Speaker 1: a fellow WSU graduate student living in the same on
29:37
Speaker 1: campus housing complex and Pullman that he had submitted his
29:40
Speaker 1: DNA for testing to learn about his ancestry. The neighbor
29:43
Speaker 1: told The Statesman last year, the neighbors spoke on condition
29:47
Speaker 1: of anonymity over privacy concerns he talked about his ancestors.
29:52
Speaker 1: The neighbor said in the interview, from the entry of
29:55
Speaker 1: his apartment, he had some sort of DNA test. I
29:58
Speaker 1: don't know how he got to that point. It was
30:00
Speaker 1: just interesting to him. Suddenly, the possible constitutional implications would
30:05
Speaker 1: no longer be about the DNA left at the crime
30:08
Speaker 1: scene or the rights of those genealogy website customers who
30:12
Speaker 1: didn't agree to allow law enforcement to access their profiles
30:16
Speaker 1: for use in a criminal investigation. Under this potential scenario,
30:20
Speaker 1: Coburger himself would not have consented for his DNA profile
30:24
Speaker 1: to be used in such a way. Gurney said, I
30:27
Speaker 1: think that scenario could be really interesting from a constitutional perspective.
30:31
Speaker 1: He said, it's not clearly a vicarious claim because it's
30:35
Speaker 1: him making a claim for himself. Yeah, I don't know
30:38
Speaker 1: about that. He willingly put his DNA out there, so
30:42
Speaker 1: I don't really think that is going to be tenable ground,
30:45
Speaker 1: and I don't think that's an argument that's gonna fall
30:47
Speaker 1: on receptive years. The chances of that remain low, Gurnie said,
30:51
Speaker 1: Even if Coberger previously submitted his DNA to a genealogy website,
30:56
Speaker 1: most people use either ancestry dot Com or twenty three
31:00
Speaker 1: in meters, which law enforcement can access and requires customers
31:04
Speaker 1: to use each company's proprietary testing kits, but other possibilities remain.
31:10
Speaker 1: He acknowledged Coburger could have downloaded his DNA profile from
31:14
Speaker 1: either service and then submitted it to ged match or
31:18
Speaker 1: family Tree DNA, but still not agree to allow law
31:21
Speaker 1: enforcement to use it in its investigations, thus the potential
31:25
Speaker 1: constitutional claims for a criminal defendant. It's never happened in
31:29
Speaker 1: any case that I'm aware of, Gurney said. We've had
31:32
Speaker 1: cases where a sibling or a parents or something, but
31:36
Speaker 1: no one that I know in this field has ever
31:38
Speaker 1: encountered a violent criminal who was so stupid as to
31:41
Speaker 1: upload their own DNA into any of these databases. Boy,
31:46
Speaker 1: that would be hilarious. All this talk about Brian Coolberger
31:49
Speaker 1: being you know, this PhD student, this that the other thing,
31:52
Speaker 1: and there's no way that he'd make these mistakes. Well,
31:55
Speaker 1: guess what, sure looks like he did. And yet another scenario,
32:00
Speaker 1: Coburger could have originally sent his DNA to My Heritage
32:03
Speaker 1: to produce a DNA profile. FBI investigators then would have
32:08
Speaker 1: had to upload the crime scene DNA to the website
32:10
Speaker 1: while conducting an IgG review against the terms of service,
32:14
Speaker 1: but as the federal agency has previously been known to do,
32:17
Speaker 1: Gurney and Roy said, and landed on the exact match
32:21
Speaker 1: for the suspect. I think it would be unethical, Gurney said.
32:24
Speaker 1: It would be something that I would strongly urge them
32:27
Speaker 1: not to do. But it's not illegal for them to
32:29
Speaker 1: access the My Heritage database if that's indeed what happened.
32:34
Speaker 1: Even so, Ritter saw the possible constitutional implications if the
32:38
Speaker 1: FBI violated My Heritage term of service, which in turn
32:42
Speaker 1: could be argued also violated Coburger's for the Amendment rights.
32:46
Speaker 1: Defense attorneys, he said, might be able to argue that
32:49
Speaker 1: it wasn't only the use of his own DNA profile
32:52
Speaker 1: that infringed on his expectation of privacy, but also the
32:56
Speaker 1: use of his DNA connecting to relatives, which also identify
33:00
Speaker 1: him based on the agreement he struck with the genealogy
33:03
Speaker 1: company when he paid for the service. It might be
33:06
Speaker 1: the devil's in the details type of situation, he said.
33:09
Speaker 1: It raises the question is the FBI operating in that
33:12
Speaker 1: gray area and using this website that people believe has
33:16
Speaker 1: their information and is being protected from law enforcement when
33:20
Speaker 1: really it's not. He does have a direct expectation of
33:23
Speaker 1: privacy and what is that expectation and is that outlined
33:27
Speaker 1: on the website clearly enough that he had an expectation
33:31
Speaker 1: not only his individual profile, but any kind of collateral
33:35
Speaker 1: revelations from the DNA. So I think this is all
33:39
Speaker 1: going to end up being a nothing burger, and I
33:41
Speaker 1: don't think it's going to go anywhere. But it's certainly
33:43
Speaker 1: an interesting argument, and at some point I think that
33:46
Speaker 1: the Supreme Court is going to have to take it up.
33:49
Speaker 1: They're going to have to take a look at it.
33:50
Speaker 1: They're going to have to, you know, make a decision
33:52
Speaker 1: one way or the other about this information. But as
33:55
Speaker 1: of now, I don't see the prosecution stepping out of
33:58
Speaker 1: line here, and I think everything they have done as
34:01
Speaker 1: far as this IgG work anyway, is above board. So
34:06
Speaker 1: We'll see what Judge Judge has to say in the
34:08
Speaker 1: upcoming weeks, but as of now, I think this is
34:11
Speaker 1: a long shot at best. And you know when we
34:13
Speaker 1: talk about throwing a hell Mary, Yeah, this is it.
34:17
Speaker 1: As far as the rest of the story will We'll
34:19
Speaker 1: continue to follow along and when there's more information to
34:22
Speaker 1: get updated, we'll make sure we add it to the catalog.
34:26
Speaker 1: All of the information that goes with this episode can
34:29
Speaker 1: be found in the description box.