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Mega Edition: Kohberger Accuses The State Of Disclosure Violations and Idaho Responds (9/3/26) · 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 diving right back into those court documents
• 0:05
  Speaker 1: up in Moscow, and we're going to be taking a
• 0:08
  Speaker 1: look at the state's response to defendant's motion to preclude
• 0:11
  Speaker 1: the death penalty and adopt other necessary procedures. Case number CR-01-24-31665.
• 0:17
  Speaker 1: State of Idaho plaintiff, 1st Brian C. Kohlberger, the defendant.
• 0:25
  Speaker 1: Comes now, the state of Idaho by and through the
• 0:28
  Speaker 1: Latah County Prosecuting Attorney, and hereby responds to defendant's motion
• 0:32
  Speaker 1: to preclude the death penalty and adopt other necessary procedures
• 0:36
  Speaker 1: due to the state's numerous disclosure violations. The state incorporates
• 0:40
  Speaker 1: state's response to defendant's motion in limine number two, vague
• 0:45
  Speaker 1: and undisclosed expert testimony in this response. Argument 1. The
• 0:50
  Speaker 1: state has complied with Idaho Criminal Rule 16. the Controlling
• 0:54
  Speaker 1: Authority for Discovery and Idaho Criminal Rule 16ICR 16A, which states,
• 1:00
  Speaker 1: as soon as practicable, after the filing of charges against
• 1:03
  Speaker 1: the accused, the prosecuting attorney must disclose to defendant or
• 1:07
  Speaker 1: defendant's counsel any material or information in the prosecuting attorney's
• 1:11
  Speaker 1: possession or control, or that later comes into the prosecuting
• 1:15
  Speaker 1: attorney's possession or control, that tends to negate the guilt
• 1:19
  Speaker 1: of the accused as to the offense charged, or that
• 1:22
  Speaker 1: would tend to reduce the punishment for the offense. ICR 16A.
• 1:26
  Speaker 1: The rule goes on to discuss that this obligation extends
• 1:30
  Speaker 1: to information in the possession or control of others who
• 1:33
  Speaker 1: have participated in the investigation, and the prosecutor must disclose
• 1:38
  Speaker 1: 404B information. Under ICR 16B, upon written request from the defendant,
• 1:44
  Speaker 1: the prosecutor must disclose 1. Statements of defendant, 2. Statements
• 1:48
  Speaker 1: of co-defendant, 3. Defendant's prior record, 4. Documents and tangible objects. 5.
• 1:55
  Speaker 1: Reports of examinations or tests. 6. Witnesses. 7. Expert witnesses. 8.
• 2:01
  Speaker 1: Police reports. 9. Digital media recordings. 10. Other additional materials
• 2:06
  Speaker 1: ordered by the court ICR 16b. Under Rule 16, there
• 2:11
  Speaker 1: is a continuing duty to disclose which continues even through
• 2:15
  Speaker 1: the trial. If a party discovers additional evidence or evidence
• 2:19
  Speaker 1: of an additional witness or witnesses, or decides to use
• 2:22
  Speaker 1: additional evidence, witness, or witnesses, the evidence is automatically subject
• 2:27
  Speaker 1: to discovery and inspection, ICR 16-J. In such a case,
• 2:33
  Speaker 1: the party must immediately notify the other party to allow
• 2:36
  Speaker 1: that party to make the appropriate request for additional discovery
• 2:40
  Speaker 1: or inspection. Upon written request from the defendant, the state
• 2:44
  Speaker 1: must respond within 14 days of service with one of
• 2:47
  Speaker 1: the following. 1. The response has been complied with. 2.
• 2:51
  Speaker 1: There is no objection and the defense will be permitted
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  Speaker 1: discovery at a time and place certain. Or 3. The
• 2:57
  Speaker 1: state objects to all or part of the information with
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  Speaker 1: grounds for the objection. ICR Rule 16F. 1. Failure to
• 3:05
  Speaker 1: respond within 14 days constitutes a waiver of any objections
• 3:09
  Speaker 1: and is ground for sanctions by the court unless there
• 3:12
  Speaker 1: is a showing of good cause or excusable neglect. ICR 16F. 2. Lastly,
• 3:19
  Speaker 1: Rule 16 provides that if a party... fails to comply
• 3:22
  Speaker 1: with a request for discovery, the court may 1. Order
• 3:25
  Speaker 1: the party to permit discovery or inspection, 2. Prohibit discovery,
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  Speaker 1: or 3. Enter such other order as it deems just
• 3:33
  Speaker 1: in the circumstances. ICR 16-K The choice of an appropriate
• 3:38
  Speaker 1: sanction for failure to comply with a discovery request is
• 3:41
  Speaker 1: within the discretion of the trial court. State v. Matthews 124,
• 3:44
  Speaker 1: Idaho 806-864 P. 2D 644 Appeals Court 1993. In the case
• 3:53
  Speaker 1: at hand, the state has complied with Idaho Criminal Rule 16.
• 3:57
  Speaker 1: Defense counsel has entered notice of appearance on January 11, 2023.
• 4:02
  Speaker 1: Starting on January 18, 2022, the state began providing discovery
• 4:08
  Speaker 1: pursuant to Rule 16a. Discovery was provided generally as follows.
• 4:13
  Speaker 1: Documents including reports were Bates stamped and sent as PDFs,
• 4:17
  Speaker 1: Bates Pages 1 through 16, 15,914. Photographs were bait stamped
• 4:24
  Speaker 1: and sent as PDFs. Originals of the photographs were sent
• 4:28
  Speaker 1: on a hard drive pursuant to later discovery request. Photo, baits,
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  Speaker 1: 1 through 13,832. And audio and or video files were
• 4:38
  Speaker 1: assigned an AV file number and placed on the hard
• 4:41
  Speaker 1: drives AV0001 through AV0000989. PDFs were sent automatically. Larger files,
• 4:51
  Speaker 1: including audio and video files, which could not be emailed,
• 4:54
  Speaker 1: were put on hard drives. The hard drives were routinely
• 4:57
  Speaker 1: picked up by the defense counsel or her staff. Early on,
• 5:01
  Speaker 1: the parties had to determine how to discover massive amounts,
• 5:05
  Speaker 1: over 50 terabytes of data, which was stored at the
• 5:08
  Speaker 1: MPD forensic lab. This included data such as surveillance videos,
• 5:12
  Speaker 1: phone extractions, third-party data, call detail records, and computer extractions.
• 5:17
  Speaker 1: The amount of data recovered required the MPD, the state,
• 5:21
  Speaker 1: and defendant to acquire large servers capable of storing this data.
• 5:25
  Speaker 1: The defendant acquired and provided a server to the MPD,
• 5:29
  Speaker 1: and the information was copied, verified, and placed onto the
• 5:33
  Speaker 1: defendant's server. This process, acquiring, copying, verifying, etc., took several weeks.
• 5:39
  Speaker 1: This was turned over to the defendant around April 4, 2023,
• 5:42
  Speaker 1: almost two years ago. Discovery was provided continuously as the
• 5:48
  Speaker 1: state received it from various agencies, and it was promptly
• 5:51
  Speaker 1: turned over to defendant in the same fashion it was received.
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  Speaker 1: The state and defendant are on the same playing field
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  Speaker 1: in this regard. Turning information over in the same way
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  Speaker 1: it was received allowed, one, the discovery to be sent promptly,
• 6:05
  Speaker 1: and two, the state to track what was turned over.
• 6:08
  Speaker 1: The state learned early on, if we moved or changed files,
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  Speaker 1: then it was much more difficult to determine what what
• 6:14
  Speaker 1: had been discovered or to answer any questions from defense.
• 6:19
  Speaker 1: On January 10, 2023, the state received a written request
• 6:22
  Speaker 1: for discovery pursuant to Rule 16b. This was followed by
• 6:26
  Speaker 1: 22 supplemental requests throughout the course of the case, in
• 6:30
  Speaker 1: addition to six motions to compel. The state replied to
• 6:34
  Speaker 1: each request in accordance with Rule 1641 within the requisite
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  Speaker 1: 14 days. Further, the state not only met the demands
• 6:42
  Speaker 1: of 1641 but supplemental, and supplemented those requirements by providing
• 6:47
  Speaker 1: the defendant with a location of the requested discovery and
• 6:51
  Speaker 1: the date discovered within each of those initial responses. On
• 6:55
  Speaker 1: September 4, 2024, the state filed state's response and supplemental
• 6:59
  Speaker 1: responses to defendant's request for discovery. This was accompanied by
• 7:04
  Speaker 1: 15 attachments, approximately 320 pages, which detailed the location, the description,
• 7:11
  Speaker 1: and the date the discovery was provided to the defendant.
• 7:14
  Speaker 1: In essence, defendant was provided 319 pages of indexes for
• 7:19
  Speaker 1: each of their discovery requests. See state response to supplemental
• 7:23
  Speaker 1: responses to defendant's request for discovery. Because of its volume,
• 7:27
  Speaker 1: the state is not attaching this filing to this response.
• 7:31
  Speaker 1: The state's initial discovery deadline was September 6, 2024, approximately
• 7:36
  Speaker 1: 11 months before trial is scheduled to start. As noted above,
• 7:40
  Speaker 1: the state also has a continuing duty to disclose information
• 7:44
  Speaker 1: until the completion of trial. As such, the state has
• 7:47
  Speaker 1: continued to disclose information, which came to light after September 6, 2024.
• 7:53
  Speaker 1: The state has complied with Idaho Rule 16. The defendant
• 7:57
  Speaker 1: has not provided any basis for ICR Rule 16 violations,
• 8:01
  Speaker 1: much less sanctions. 2. The state has complied with Brady v.
• 8:05
  Speaker 1: Maryland and its progeny. Defendant's arguments rest on a misunderstanding
• 8:10
  Speaker 1: of the state's Brady obligations. Under Brady, the prosecution has
• 8:14
  Speaker 1: a duty to disclose evidence that is both favorable to
• 8:17
  Speaker 1: the defense and material to either guilt or punishment. 373 U.S.
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  Speaker 1: at 87. There are three components of a true Brady violation.
• 8:27
  Speaker 1: The evidence at issue must be favorable to the accused,
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  Speaker 1: either because it's exculpatory or because it is impeaching. That
• 8:35
  Speaker 1: evidence must have been suppressed by the state, either willfully
• 8:38
  Speaker 1: or inadvertently, and prejudice must have ensued. Prejudice and materiality
• 8:43
  Speaker 1: are used interchangeably in the context of Brady, State v. Campbell, 2022.
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  Speaker 1: When assessing materiality, the question is whether the favorable evidence
• 8:53
  Speaker 1: would reasonably be taken to put the whole case in
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  Speaker 1: such a different light as to undermine confidence in the outcome.
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  Speaker 1: Idea 247, 2019. Brackets and original. Such evidence is material
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  Speaker 1: if there is a reasonable probability that had that evidence
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  Speaker 1: been disclosed to the defense, the result of the proceeding
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  Speaker 1: would have been different. ID quoting Strickler v. Green, 527 U.S. 263, 1999.
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  Speaker 1: When the Brady issue is one of delayed disclosure, the
• 9:24
  Speaker 1: question is whether earlier disclosure would have created a reasonable
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  Speaker 1: doubt of guilt. Thumb 165, Idaho, 423, 447, P. 3D, at 871.
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  Speaker 1: Quoting United States v. Burke, 571, F. 3D, 1041, 1054, Brady
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  Speaker 1: is an obligation of not just the individual prosecutor assigned
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  Speaker 1: to the case, but all the government agents having a
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  Speaker 1: significant role in investigating and prosecuting the offense. State v. Gardner,
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  Speaker 1: 126 Idaho, 428, 433 1994. See also Kyle's 514 U.S. 419.
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  Speaker 1: The individual prosecutor has a duty to learn of any
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  Speaker 1: favorable evidence known to others acting on the government's behalf
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  Speaker 1: in the case, including the police. However, a prosecutor is
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  Speaker 1: not required to disclose evidence the prosecutor does not possess
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  Speaker 1: or evidence of which the prosecutor could not reasonably be
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  Speaker 1: imputed to have knowledge of or control. State v. Avalar 132,
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  Speaker 1: Idaho 775-781-1999 Quoting United States v. McFarland 759-F.S.U.P.P. 1163-1168 P.A.
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  Speaker 1: 1991 Even information held in the minds of government witnesses is...
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  Speaker 1: is generally not imputed to the prosecution unless that information
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  Speaker 1: was discovered by police or prosecutors. Avalar 132, Idaho at 781.
• 10:53
  Speaker 1: All right, we're going to wrap up right here. And
• 10:56
  Speaker 1: in the next episode, we're going to pick up where
• 10:58
  Speaker 1: we left off. All of the information, including my contact information,
• 11:02
  Speaker 1: can be found in the description box. What's up, everyone,
• 11:06
  Speaker 1: and welcome back to the program. In this episode, we're
• 11:09
  Speaker 1: picking up where we left off. with the state's response
• 11:12
  Speaker 1: to defendant's motion to preclude the death penalty and adopt
• 11:16
  Speaker 1: other necessary procedures. In this case, the state has provided
• 11:20
  Speaker 1: all material information in its possession to the defendant and
• 11:23
  Speaker 1: will continue to provide any additional material information that may
• 11:27
  Speaker 1: come to light. The defendant states Mr. Koberger requested additional
• 11:31
  Speaker 1: discovery related to IGG. The defendant claims the state has
• 11:35
  Speaker 1: refused to provide this information. However, this information is controlled
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  Speaker 1: by judge-judged sealed order for disclosure of IGG information and
• 11:44
  Speaker 1: protection order. Further, this specific information is not material. It
• 11:48
  Speaker 1: has no bearing on the defendant's guilt or innocence. Any
• 11:52
  Speaker 1: issues related to IGG are now moot in the light
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  Speaker 1: of defendant's motion in limine regarding IGG evidence and the
• 11:59
  Speaker 1: state's concurrence that no IGG evidence will be offered at trial.
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  Speaker 1: As noted above, almost all discovery was provided within a
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  Speaker 1: time span of three and a half years prior to trial,
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  Speaker 1: first discovery sent January 18, 2023, up until 11 months
• 12:15
  Speaker 1: prior to trial, discovery deadline of September 6, 2024. The
• 12:20
  Speaker 1: state has requested information regarding the defendant's possible defense so
• 12:25
  Speaker 1: the state could make specific inquiry for information that could
• 12:28
  Speaker 1: be material to the defendant, i.e. exculpatory, To date, the
• 12:32
  Speaker 1: state has not received any information which would aid in
• 12:35
  Speaker 1: the process of identifying possible exculpatory information. Defendant claims the
• 12:41
  Speaker 1: state has violated Brady by failing to provide an index
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  Speaker 1: of all discovery materials. But Brady does not require the
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  Speaker 1: prosecutor to make a complete and detailed accounting to the
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  Speaker 1: defense of all police investigatory work on the case. State v.
• 12:55
  Speaker 1: Horn 101, Idaho 192-195-1980 Quoting Moore v. Illinois 408 U.S. 786-795-1972. Moreover,
• 13:08
  Speaker 1: the state has provided approximately 320 pages of indexes in
• 13:12
  Speaker 1: a response to the defendant's 411 discovery requests. In addition,
• 13:17
  Speaker 1: the defendant has been provided a searchable index for all
• 13:21
  Speaker 1: FBI material. The state has continuously facilitated the defendant's review
• 13:25
  Speaker 1: of discovery materials. The state also affirmatively sought exculpatory information,
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  Speaker 1: tasking investigators to pursue avenues of potential Brady material and
• 13:36
  Speaker 1: documented such as supplemental reports that are readily reviewable. The
• 13:41
  Speaker 1: defendant at best is making a bald-faced assertion of improper
• 13:45
  Speaker 1: conduct by the state without pointing to any factual basis.
• 13:50
  Speaker 1: In the end, the state is in no better position
• 13:52
  Speaker 1: to identify potentially exculpatory evidence than the defendant. The state will,
• 13:57
  Speaker 1: and has continued to abide by the requirements of ICR
• 14:00
  Speaker 1: 16 and Brady. Mr. Koberger's due process rights have not
• 14:04
  Speaker 1: been violated. On August 8, 2024, the defendant was provided
• 14:08
  Speaker 1: a copy of the FBI's OneDrive database related to this case.
• 14:13
  Speaker 1: This included a master list of items in an Excel
• 14:16
  Speaker 1: format which was searchable. The defendant argues that the state
• 14:20
  Speaker 1: has not provided contents of various items it intends to
• 14:23
  Speaker 1: rely upon at trial. The state notes the deadline for
• 14:26
  Speaker 1: exhibit lists and witness lists are due April 21, 2025.
• 14:32
  Speaker 1: In addition, the state has completed initial and supplemental expert
• 14:36
  Speaker 1: disclosures pursuant to the court scheduling order and January 23,
• 14:41
  Speaker 1: 2025 instructions. 3. There are no grounds to preclude the
• 14:45
  Speaker 1: death penalty. This court should reject the defendant's request to
• 14:48
  Speaker 1: strike the death penalty as a sanction for a discovery
• 14:51
  Speaker 1: violation that does not exist. See Supra Part 2. Even
• 14:56
  Speaker 1: those courts that have utilized that sanction recognize that it
• 14:59
  Speaker 1: was extreme and only utilized because no other remedy was sufficient.
• 15:03
  Speaker 1: For example, in Idaho v. Lori Vallow Daybell, the state
• 15:07
  Speaker 1: failed to timely disclose conversations between the defendant and co-defendant.
• 15:13
  Speaker 1: See YouTube Judge Grants Lori Vallow's motion to dismiss the
• 15:16
  Speaker 1: death penalty in her case, March 21, 2023, at the
• 15:20
  Speaker 1: 445 mark. The state's discovery deadline was prior to February 27, 2023.
• 15:27
  Speaker 1: The state disclosed discovery on February 27, 2023, which the
• 15:32
  Speaker 1: court noted was late. On this date, the state discovered
• 15:36
  Speaker 1: jailhouse recordings, phone calls, and video visits. In addition, on
• 15:40
  Speaker 1: March 13, 2023... The state discovered several more hours of
• 15:44
  Speaker 1: jailhouse recordings, statements of defendant and co-defendant, ID at 13 minutes.
• 15:50
  Speaker 1: Over 100 hours of audio and video was disclosed after
• 15:54
  Speaker 1: the discovery deadline. The defendant submitted an affidavit from her
• 15:58
  Speaker 1: mitigation expert detailing the prejudice due to the late disclosures,
• 16:02
  Speaker 1: ID at 7.58. These disclosures were two weeks before the
• 16:06
  Speaker 1: jury selection was set to begin on March 27, 2023.
• 16:11
  Speaker 1: The court noted the problem here is a timing problem. I.D.
• 16:14
  Speaker 1: at 1550. The defendant's trial was set to begin April 3rd, 2023,
• 16:20
  Speaker 1: and the defendant had not waived her right to a
• 16:23
  Speaker 1: speedy trial. The court noted that if the disclosures had
• 16:26
  Speaker 1: been made prior to the discovery deadline, February 27th, 2023,
• 16:31
  Speaker 1: or one day late, it would be difficult for the
• 16:33
  Speaker 1: court to determine that prejudice would arise. I.D. at 1633.
• 16:37
  Speaker 1: Presiding Judge... District Court Stephen W. Boyce stated, The court
• 16:43
  Speaker 1: must determine here that the defense has in fact demonstrated
• 16:46
  Speaker 1: material prejudice resulting from the late disclosures. The prejudice has
• 16:51
  Speaker 1: occurred because of the proximity of the trial, the volume
• 16:54
  Speaker 1: of the discovery, and the inability of the defense to
• 16:57
  Speaker 1: adequately review that discovery before trial begins. Idea 1945. Further,
• 17:03
  Speaker 1: having determined that prejudice has resulted... Due to the late-disclosed discovery,
• 17:08
  Speaker 1: the court must next consider what course of action, if any,
• 17:11
  Speaker 1: is necessary. I.D. at 2034. Judge Boyce held, because the
• 17:16
  Speaker 1: court has not found any willful conduct on the part
• 17:19
  Speaker 1: of the state, the court is not primarily concerned with
• 17:22
  Speaker 1: any sort of sanction or a punishment, but what the
• 17:25
  Speaker 1: court must address is the appropriate remedy to try to
• 17:28
  Speaker 1: mitigate the prejudice that has been caused by the late disclosures. Ordinarily,
• 17:34
  Speaker 1: a logical remedy would exist here, and that would be
• 17:36
  Speaker 1: a continuance of this trial. This has been proposed by
• 17:40
  Speaker 1: the state as one solution, and the state has proposed
• 17:43
  Speaker 1: to mirror a continuance in the companion case of the
• 17:47
  Speaker 1: Chad Daybell case. However, here that's an option I can't
• 17:51
  Speaker 1: consider because this case, the defendant, has unequivocally asserted her
• 17:56
  Speaker 1: right to a speedy trial. In determining whether a speedy
• 17:59
  Speaker 1: trial is violated, one of the major factors is the
• 18:02
  Speaker 1: reason for the delay. The reason for the delay here
• 18:06
  Speaker 1: rests on the state and can't be counted against the
• 18:08
  Speaker 1: defendant to justify a delay of her trial in this case.
• 18:12
  Speaker 1: If I were to delay this trial based on an
• 18:14
  Speaker 1: issue caused by the state, I believe that would violate
• 18:17
  Speaker 1: her fundamental and constitutional right to a speedy trial. And
• 18:21
  Speaker 1: just to interject here, this is why we're going through
• 18:23
  Speaker 1: the Lori Vallow trial once again in some of those
• 18:27
  Speaker 1: vault episodes that I've been posting. That way you folks
• 18:30
  Speaker 1: who might not have followed that trial get an idea
• 18:32
  Speaker 1: of of how the system works up here in Idaho,
• 18:35
  Speaker 1: and what we could probably expect in the Brian Kohlberger trial. Alright,
• 18:40
  Speaker 1: back to the document. The judge noted that the jury
• 18:43
  Speaker 1: selection was set to begin the following week, at 2309.
• 18:48
  Speaker 1: The court found that excluding witnesses or evidence was not
• 18:51
  Speaker 1: reasonable or fair to the state, ID at 2358. That
• 18:56
  Speaker 1: left the court with two options. One, striking the death penalty,
• 18:59
  Speaker 1: or two, dismissing the case. idea 2408. The court determined
• 19:05
  Speaker 1: that dismissing the case would be too severe of a
• 19:07
  Speaker 1: sanction here, idea 2416. Judge Boyce determined that this was
• 19:12
  Speaker 1: a ripe issue and noted that all other options were
• 19:15
  Speaker 1: considered before coming to this decision. Judge Boyce held, noting
• 19:19
  Speaker 1: a heightened scrutiny, as an appropriate discovery sanction the state
• 19:23
  Speaker 1: will be precluded from seeking the death penalty at trial
• 19:27
  Speaker 1: and the state's May 2, 2022 notice of intent to
• 19:30
  Speaker 1: seek the death penalty. The court reiterated this was not
• 19:37
  Speaker 1: imposed to penalize the state, but rather to ensure the
• 19:40
  Speaker 1: constitutional right of the defendant was protected. The facts before
• 19:47
  Speaker 1: the court in the Kohlberger case are nothing like the
• 19:49
  Speaker 1: facts before the court in the Vallow case. Unlike in Vallow,
• 19:53
  Speaker 1: where the defendant pointed to over 100 hours of disclosed
• 19:57
  Speaker 1: jail calls and visits that may or may not contain
• 20:00
  Speaker 1: Brady material, the defendant has not pointed to any particular
• 20:04
  Speaker 1: evidence he believes the state has failed to disclose. Moreover,
• 20:08
  Speaker 1: as the court in Vallow explained, The sanction in valo
• 20:11
  Speaker 1: resulted from the court not having other choice because the
• 20:15
  Speaker 1: defendant had not waived her right to a speedy trial.
• 20:18
  Speaker 1: Here the defendant has waived his right to a speedy trial.
• 20:22
  Speaker 1: Even if this court finds the state violated its Brady
• 20:25
  Speaker 1: obligation for failing to provide unspecified evidence, the court can
• 20:30
  Speaker 1: fashion more appropriate remedies in this case. In essence, the
• 20:34
  Speaker 1: defendant is arguing that in cases that involve a large
• 20:37
  Speaker 1: amount of discoveries such as this one, The death penalty
• 20:40
  Speaker 1: cannot be pursued because there is so much information for
• 20:43
  Speaker 1: defense counsel to review prior to trial. That is absurd
• 20:48
  Speaker 1: and such application would lead to absurd results. Despite his
• 20:52
  Speaker 1: repeated assertions, defendant has not demonstrated any actual prejudice because
• 20:57
  Speaker 1: there is none. Defendant's request is without merit and should
• 21:00
  Speaker 1: be denied. Conclusion The state requests that the court find
• 21:04
  Speaker 1: that 1. The state has abided by the requirements of
• 21:08
  Speaker 1: the ICR 2. The state has not violated Brady v.
• 21:11
  Speaker 1: Maryland and its progeny. Or Mr. Kohlberger's due process rights. Therefore, three,
• 21:17
  Speaker 1: there is no basis to preclude the death penalty. Respectfully
• 21:21
  Speaker 1: submitted this 17th day of March and signed by Ashley Jennings.
• 21:26
  Speaker 1: All of the information, including my contact information, can be
• 21:29
  Speaker 1: found in the description box. What's up everyone and welcome
• 21:33
  Speaker 1: back to the program. In this episode, we're headed back
• 21:35
  Speaker 1: out to Moscow and we're going to dive right back
• 21:38
  Speaker 1: into those court documents. And on this installment, we're taking
• 21:41
  Speaker 1: a look at the reply to the state's response to
• 21:44
  Speaker 1: defendant's motion to preclude the death penalty and adopt other
• 21:47
  Speaker 1: necessary procedures. Case number CR01-24-31665, State of Idaho Plaintiff, vs.
• 21:56
  Speaker 1: Brian C. Koberger, the defendant. Comes now. Brian C. Koberger
• 22:00
  Speaker 1: by and through is attorneys of record and hereby replies
• 22:03
  Speaker 1: to the state's response to his motion to preclude the
• 22:06
  Speaker 1: death penalty and adopt other necessary procedures. R.E. Disclosure Violations.
• 22:11
  Speaker 1: The volume of discovery in this case is exceptional. One
• 22:15
  Speaker 1: of the last highly publicized death penalty cases in Idaho
• 22:19
  Speaker 1: involved three victims killed in separate incidents in a months-long
• 22:22
  Speaker 1: investigation spanning multiple states. The discovery in that case totaled
• 22:26
  Speaker 1: less than 5 terabytes. See Declaration of Mary Goody at 7,
• 22:31
  Speaker 1: State v. Lori Vallow Daybell, filed March 14, 2023, attached
• 22:34
  Speaker 1: as Exhibit 1. stating that discovery in the case exceeds
• 22:41
  Speaker 1: 4 terabytes in a declaration filed two weeks prior to
• 22:44
  Speaker 1: the trial. The discovery provided in this case more than
• 22:47
  Speaker 1: 68 terabytes dwarfs that number. It's not only an extreme
• 22:51
  Speaker 1: outlier in Idaho, but in the entire country. Courts often
• 22:55
  Speaker 1: refer to cases involving less than 5 terabytes of data
• 22:59
  Speaker 1: as containing a very significant volume of discovery, CEG, United
• 23:03
  Speaker 1: States v. Salyer, CRS 10-0061-LKKK 2011 WL 1466887-1 It's probably
• 23:16
  Speaker 1: no exaggeration to state that 1-2 TB of information are involved.
• 23:21
  Speaker 1: Of course, when one considers that TB of information, in
• 23:25
  Speaker 1: this case, are comprised of thousands and thousands of individual records,
• 23:29
  Speaker 1: The massive documentation acquired in the investigation and turned over
• 23:33
  Speaker 1: in discovery is extreme. United States v. Puckett, CR 42-2015WL,
• 23:41
  Speaker 1: at 2, Eastern District of Tennessee, April 22, 2015. Discovery
• 23:46
  Speaker 1: in this case is voluminous, involving half a terabyte of information.
• 23:51
  Speaker 1: United States v. Valdez-Morales, No. 3, 15, CR 56, 2016WL, 919-029-9,
• 24:00
  Speaker 1: Eastern District of Tennessee, March 4th, 2016. Mr. Roskind stated
• 24:06
  Speaker 1: that the 4 terabytes of discovery, the equivalent of about
• 24:09
  Speaker 1: 10 million files or documents, was the largest amount of
• 24:13
  Speaker 1: discovery of any criminal case in which he had ever
• 24:16
  Speaker 1: been involved. United States v. Hofstetter, at 14, Eastern District, Tennessee,
• 24:22
  Speaker 1: February 9th, 2018. Discovery in this case is massively voluminous,
• 24:27
  Speaker 1: consisting of well over a terabyte of data, approximately 50
• 24:31
  Speaker 1: compact disks containing audio and video recordings, and numerous image
• 24:35
  Speaker 1: computer hard drives. United States v. Conley, 2.22 CR 147-2023
• 24:39
  Speaker 1: WL 580-7835, Eastern District, Virginia, September 7, 2023. Granting a
• 24:41
  Speaker 1: continuance in criminal case where the discovery totaled 5 terabytes,
• 24:43
  Speaker 1: even where prosecution... had diligently assisted defense counsel in navigating
• 24:58
  Speaker 1: the voluminous discovery materials. To put this into perspective, it
• 25:03
  Speaker 1: would take hundreds of reviewers several years to review the
• 25:05
  Speaker 1: discovery in this case. One terabyte is generally estimated to
• 25:09
  Speaker 1: contain 75 million pages, and therefore a one terabyte case
• 25:14
  Speaker 1: could amount to 18,750,000 documents, assuming an average of four
• 25:17
  Speaker 1: pages per document. Further, assuming that a lawyer or even
• 25:24
  Speaker 1: paralegal can review 50 documents per hour, a very fast
• 25:27
  Speaker 1: review rate, it would take 375,000 hours to complete the review.
• 25:33
  Speaker 1: In other words, it would take more than 185 reviewers
• 25:36
  Speaker 1: working 2,000 hours each per year to complete the review
• 25:40
  Speaker 1: within a year for one terabyte of data case. Jenya I. Turner,
• 25:46
  Speaker 1: Managing Digital Discovery in Criminal Cases, 109 Criminal Law and Criminology, 2019.
• 25:52
  Speaker 1: One terabyte is estimated to hold around 1,000 hours or
• 25:57
  Speaker 1: about 40 days of video files. Extrapolating to this case,
• 26:00
  Speaker 1: even assuming for the sake of simplicity that all 68
• 26:03
  Speaker 1: terabytes consisted of video files, which take up significantly more
• 26:07
  Speaker 1: space than documents and audio files, it would require 2,560
• 26:11
  Speaker 1: days or more than seven years to review all of
• 26:13
  Speaker 1: the footage. Contrary to the state's assertion, the prosecution and
• 26:20
  Speaker 1: defense are not on the same playing field. State's response
• 26:24
  Speaker 1: at four. The prosecution has had the assistance of hundreds
• 26:27
  Speaker 1: of investigators, law enforcement officers, prosecutors, and administrative staff from
• 26:32
  Speaker 1: several different state and federal agencies working on this case
• 26:35
  Speaker 1: and collecting, reviewing, and analyzing evidence. In addition to sheer manpower,
• 26:40
  Speaker 1: the prosecution is using expensive, technologically powerful case management software.
• 26:46
  Speaker 1: that the defense does not have access to. According to
• 26:49
  Speaker 1: its website, their case management system, Prosecutor by Carpal, allows
• 26:53
  Speaker 1: for prosecutors to tag individuals in the case and pull
• 26:56
  Speaker 1: up all documents related to them, both within a case
• 26:59
  Speaker 1: and across cases, has a global search function to search
• 27:03
  Speaker 1: all discovery and case documents at one time and even
• 27:06
  Speaker 1: generate reports from such searches, and allow external individuals and
• 27:10
  Speaker 1: agencies read-only access to the case and the ability to
• 27:14
  Speaker 1: upload documents directly into the case system. See Prosecutor by Carpal, PBK,
• 27:20
  Speaker 1: Case Management Software with Efficiency, Enhancing Features, Person-Centric, Comprehensive Search
• 27:26
  Speaker 1: and Organization of Data by Person. Every time you update
• 27:29
  Speaker 1: information on this person, the system automatically aligns the previous information.
• 27:34
  Speaker 1: Add Information Features enable your prosecutors to do more in
• 27:38
  Speaker 1: less time, sifting through search results and going through mountains
• 27:41
  Speaker 1: of paperwork just to find one piece of information. saps
• 27:44
  Speaker 1: valuable time that could be spent on more important tasks.
• 27:48
  Speaker 1: Prosecutor by Carpal provides a wealth of features designed to
• 27:52
  Speaker 1: not only find what you're looking for fast, but also
• 27:55
  Speaker 1: to easily generate a report and share it with relevant parties.
• 28:00
  Speaker 1: Prosecutor by Carpal has a powerful relational database that features
• 28:04
  Speaker 1: broad search capabilities so you can find your case information
• 28:07
  Speaker 1: quickly and easily. PBK integrates with the court, law enforcement, software,
• 28:13
  Speaker 1: and more external agency portal. External agency portal allows your
• 28:18
  Speaker 1: justice partners view-only privileges to basic case information and the
• 28:22
  Speaker 1: ability to attach and submit supplemental media documents to the
• 28:26
  Speaker 1: prosecutor's office electronically. The system also has the capacity to
• 28:31
  Speaker 1: integrate with advanced evidence management software, including AxonJusticeEvidence.com, which has
• 28:37
  Speaker 1: artificial intelligence capabilities including automatic transcription of audio and video files.
• 28:44
  Speaker 1: Axon Evidence User and Administrator Reference Guide, Axon, auto-transcribe at
• 28:49
  Speaker 1: page 174. No more having to watch every moment of
• 28:53
  Speaker 1: digital evidence. Instead, users can simply scan the auto-transcript to
• 28:58
  Speaker 1: quickly survey what happened, then jump to the significant section
• 29:01
  Speaker 1: by clicking on the spoken words. Despite access to sophisticated technology,
• 29:06
  Speaker 1: the prosecution has not organized the discovery in a way
• 29:09
  Speaker 1: that facilitates review. PDF files are provided without names that
• 29:14
  Speaker 1: correspond to their contents. Individual PDF files contain several documents
• 29:19
  Speaker 1: grouped together into one file. For example, a single PDF
• 29:22
  Speaker 1: file might contain 17 different documents and be labeled Kohlberger
• 29:27
  Speaker 1: Unredacted 550-750. Thus, the defense must manually scroll through each
• 29:32
  Speaker 1: PDF file to discern the number and type of documents
• 29:35
  Speaker 1: it contains. Because the state protects each PDF with a password,
• 29:40
  Speaker 1: it's extremely cumbersome to then separate and combine PDF into
• 29:44
  Speaker 1: individual documents, which would allow the defense to rename and
• 29:48
  Speaker 1: organize the documents individually. The state has refused to either
• 29:51
  Speaker 1: provide the password or cease password protecting the PDFs despite
• 29:56
  Speaker 1: several requests. While redacted documents are sent through the case
• 30:00
  Speaker 1: management system, integrated email system, the state provides hard drives
• 30:04
  Speaker 1: containing audio and video files without transcriptions and unredacted reports
• 30:08
  Speaker 1: that the defense must pick up in person. They must
• 30:12
  Speaker 1: then be manually loaded into a shared storage file for
• 30:14
  Speaker 1: defense team access. The subfolders of video and audio files
• 30:18
  Speaker 1: must be recreated in the defense system one by one
• 30:22
  Speaker 1: and then files uploaded into each. Because transcripts were not
• 30:26
  Speaker 1: routinely provided, Even once these videos or audio files are
• 30:30
  Speaker 1: uploaded into the defense system, they are not searchable. Without
• 30:34
  Speaker 1: the sophisticated technology that the prosecution has access to, the
• 30:37
  Speaker 1: defense cannot conduct global searches of the documents turned over
• 30:41
  Speaker 1: nor tag the individuals or topics in order to catalog
• 30:44
  Speaker 1: or group relevant documents together. It's necessary to individually open,
• 30:49
  Speaker 1: up in a PDF, in order to use search text,
• 30:53
  Speaker 1: and therefore the defense team cannot search the discovery unless
• 30:56
  Speaker 1: it knows that something already exists and approximately where to
• 30:59
  Speaker 1: find it. The state's assertion that it has provided an
• 31:03
  Speaker 1: index of the discovery is misleading. The index is really
• 31:06
  Speaker 1: an accounting of hard drives and groups of files and
• 31:09
  Speaker 1: the dates that were turned over. It does not address
• 31:11
  Speaker 1: the overarching problems regarding lack of organization, labels, and clarity
• 31:16
  Speaker 1: about what is actually being discovered. For example, within the
• 31:20
  Speaker 1: discovery response the state likens to an index, there is
• 31:23
  Speaker 1: a chart that identifies almost the full range of videos provided,
• 31:27
  Speaker 1: in this case, nearly 1,000, in which the only descriptions
• 31:32
  Speaker 1: are audio-video files, see state's response and supplemental responses to
• 31:36
  Speaker 1: defendant's discovery request for discovery September 4, 2024 at 25.
• 31:42
  Speaker 1: The same exists for large numbers of documents, for example,
• 31:45
  Speaker 1: nearly 16,000 pages of bait stamp documents, is described as
• 31:50
  Speaker 1: documents and reported, and a hard drive given on a
• 31:53
  Speaker 1: specific date contains FBI OneDrive production number redacted. Idea 3.
• 31:59
  Speaker 1: There are also several places... in which the state asserts
• 32:02
  Speaker 1: it has provided something related to a specific topic and
• 32:05
  Speaker 1: then provides examples specifically stating that the relevant documents and
• 32:09
  Speaker 1: video audio files include but are not limited to those listed,
• 32:13
  Speaker 1: making it impossible to know whether other relevant documents exist
• 32:18
  Speaker 1: within the 68 terabytes of discovery. While there are some
• 32:22
  Speaker 1: entries that provide more detail and can accurately be likened
• 32:25
  Speaker 1: to an index, such as a list of reports by
• 32:28
  Speaker 1: name beginning on page 7, This accounts for an extremely
• 32:31
  Speaker 1: small fraction of the discovery provided in the case. All right,
• 32:36
  Speaker 1: we're going to wrap up part one right here, and
• 32:37
  Speaker 1: in the next episode, we're going to finish this one off.
• 32:40
  Speaker 1: All of the information that goes with this episode can
• 32:42
  Speaker 1: be found in the description box. What's up, everyone, and
• 32:46
  Speaker 1: welcome back to the program. In this episode, we're picking
• 32:49
  Speaker 1: up where we left off with Brian Koberger's reply to
• 32:52
  Speaker 1: the state's response to defendant's motion to preclude the death
• 32:55
  Speaker 1: penalty and adopt other necessary procedures, disclosure violations. nor is
• 33:00
  Speaker 1: the state facilitated defense review of the discovery in any
• 33:04
  Speaker 1: other manner, such as by providing a list of hot
• 33:07
  Speaker 1: documents or by outlining the evidence they intend to use
• 33:11
  Speaker 1: in a presentation to the defense. These types of efforts
• 33:14
  Speaker 1: are common in large cases, even when those cases contain
• 33:17
  Speaker 1: multitudes less discovery than here. CEG United States v. Busey
• 33:21
  Speaker 1: 521 CR 9-2024 SD, Georgia, Nov. 25, 2024 In case
• 33:31
  Speaker 1: involving 15 terabytes of data, the government took several steps
• 33:35
  Speaker 1: to facilitate reviewing, including 1. Providing an inventory of discovery, 2.
• 33:40
  Speaker 1: Organizing the discovery by seizing and producing agency, by category
• 33:45
  Speaker 1: or type of evidence, by individual, and by H-2A petitions, 3.
• 33:50
  Speaker 1: Offering assistance to defense counsel in reviewing discovery, explaining what
• 33:55
  Speaker 1: was produced, and explaining how the productions were organized, and four,
• 34:00
  Speaker 1: meeting with defense counsel to present a PowerPoint outlining the
• 34:03
  Speaker 1: evidence against the client. United States v. Skilling, 2009. The
• 34:08
  Speaker 1: government provided a searchable electronic file, produced an index of
• 34:12
  Speaker 1: hot documents, indicating the documents that were important to its case,
• 34:16
  Speaker 1: as well as the documents that included potentially exculpatory evidence,
• 34:21
  Speaker 1: and created a number of other databases to assist the
• 34:24
  Speaker 1: defense review of the evidence. United States v. Perod, No. 9, 60129CR2010WL2288013,
• 34:35
  Speaker 1: Southern District, Florida, January 14, 2010. The government has separately
• 34:40
  Speaker 1: directed defendants to the materials it deems to be most
• 34:43
  Speaker 1: relevant to this case, and it has given defendants an
• 34:47
  Speaker 1: index to the remaining searchable database to enable defendants to
• 34:51
  Speaker 1: focus their review efforts on the document's most likely to
• 34:54
  Speaker 1: be relevant to defendants' defense. Moreover, the United States has
• 34:59
  Speaker 1: provided defendants with the same search capabilities upon which the
• 35:02
  Speaker 1: government must rely in reviewing the materials in their database.
• 35:07
  Speaker 1: It is also clear that the defense team does not
• 35:09
  Speaker 1: have access to the number of support staff available to
• 35:11
  Speaker 1: the government, even with a searchable database, either from multiple
• 35:15
  Speaker 1: sources or a common database, culling the pertinent information with
• 35:20
  Speaker 1: a degree of accuracy will take time. The volume and
• 35:23
  Speaker 1: format of discovery, which has been a constant issue in
• 35:26
  Speaker 1: this case, is the backdrop to the present circumstances requiring relief.
• 35:31
  Speaker 1: The state wants to paint away the problem by reducing
• 35:34
  Speaker 1: it entirely to the size of the case. See state's
• 35:36
  Speaker 1: response at 10. In essence, the defendant is arguing that
• 35:40
  Speaker 1: in cases that involve a large amount of discovery such
• 35:43
  Speaker 1: as this one, the death penalty cannot be pursued because
• 35:46
  Speaker 1: there is so much information for defense counsel to review
• 35:50
  Speaker 1: prior to trial. But the death penalty must be precluded
• 35:53
  Speaker 1: because whether by design or inattention, the defense continues to
• 35:57
  Speaker 1: be inundated with late discovery and late expert disclosures mere
• 36:01
  Speaker 1: months prior to trial, creating an untenable situation. This court
• 36:05
  Speaker 1: set a discovery deadline in September 2024 and an expert
• 36:09
  Speaker 1: disclosure deadline on January 2025. Pursuant to that scheduling order,
• 36:14
  Speaker 1: the defense would have 10 months to engage with discovery
• 36:18
  Speaker 1: and determine priorities in preparation for trial. and more than
• 36:21
  Speaker 1: six months to be aided in that review by completed
• 36:24
  Speaker 1: expert disclosures largely laying out the state's case. But the
• 36:28
  Speaker 1: state has not abided by these deadlines. For example, the
• 36:32
  Speaker 1: state just turned over discovery that the defense specifically asked
• 36:35
  Speaker 1: for more than a year ago. Among the documents are
• 36:39
  Speaker 1: things dated November 2023, things that existed long before the
• 36:43
  Speaker 1: state's discovery deadline and would have been turned over more
• 36:46
  Speaker 1: than a year ago. And the late expert disclosures continue
• 36:49
  Speaker 1: to roll in, even after the motions in limine deadline.
• 36:53
  Speaker 1: As one court explained, each disclosure creates a cascading set
• 36:57
  Speaker 1: of responsibilities for defense counsel. In addition to reviewing its contents,
• 37:02
  Speaker 1: defense counsel must also file any relevant pretrial motions. The
• 37:06
  Speaker 1: court must hold hearing on those motions and issue an order,
• 37:09
  Speaker 1: and then the defense must integrate the information and prepare
• 37:13
  Speaker 1: for trial in light of those rulings. United States v. Covington,
• 37:18
  Speaker 1: 3-15-CR-23-2015-WL-388-3522-2 Eastern District, Tennessee, June 24, 2015 Granting a continuance
• 37:30
  Speaker 1: in a criminal case involving 4 terabytes of data described
• 37:33
  Speaker 1: by the government as an immense universe of discovery. Thus,
• 37:37
  Speaker 1: each and every late disclosure requires attention to be turned
• 37:41
  Speaker 1: to the new disclosure and to the attendant follow-up investigation, rebuttal,
• 37:45
  Speaker 1: and or litigation. and away from preparing for trial in
• 37:49
  Speaker 1: a streamlined manner. There is truth to the assertion that
• 37:52
  Speaker 1: the facts before the court in the Kohlberger case are
• 37:55
  Speaker 1: nothing like the facts before the court in the Vallow case.
• 37:58
  Speaker 1: State's response at 10. They are significantly worse because the
• 38:02
  Speaker 1: state's discovery abuses. As the state correctly points out, the
• 38:07
  Speaker 1: judge precluded the death penalty in the Vallow-Daybell case after
• 38:10
  Speaker 1: the state turned over 100 hours of jail calls one
• 38:14
  Speaker 1: day after the discovery deadline, and two weeks before trial.
• 38:19
  Speaker 1: Though it would technically be possible to listen to all
• 38:22
  Speaker 1: 100 hours of recordings in two weeks, the court recognized
• 38:26
  Speaker 1: that the size and complexity of the case mattered. The
• 38:29
  Speaker 1: court concluded that the problem here is a timing problem
• 38:32
  Speaker 1: and that that prejudice has occurred because of the proximity
• 38:35
  Speaker 1: to trial, the volume of discovery, and the inability of
• 38:38
  Speaker 1: the defense to adequately review that discovery before trial begins.
• 38:43
  Speaker 1: State's response at 8 and 9. quoting video proceeding of
• 38:46
  Speaker 1: the hearing. The mitigation specialist's declaration sees state's response at 8,
• 38:51
  Speaker 1: explains the prejudice of late disclosures in a case already
• 38:54
  Speaker 1: involving 4 terabytes of discovery. Sifting through such a huge
• 38:59
  Speaker 1: number of investigative documents, audio and video files, and metadata,
• 39:03
  Speaker 1: and other scientific evidence, and determining how each piece of
• 39:07
  Speaker 1: evidence applies to either the fact or mitigation or both
• 39:11
  Speaker 1: sides of the defense case is a very time-consuming job.
• 39:14
  Speaker 1: There is absolutely no time to begin investigating new information
• 39:18
  Speaker 1: after determining how it relates to the mitigation of the case.
• 39:22
  Speaker 1: Declaration of Mary Goody Exhibit A at 7. The court
• 39:25
  Speaker 1: determined that precluding the death penalty was less severe than
• 39:29
  Speaker 1: excluding some of the statements. witnesses or evidence and that
• 39:32
  Speaker 1: precluding the death penalty under the circumstances was consistent with
• 39:36
  Speaker 1: a heightened scrutiny and due process guaranteed to defendants in
• 39:40
  Speaker 1: capital cases. Here the discovery problems have existed throughout this
• 39:44
  Speaker 1: case requiring near constant litigation and significant time. The volume
• 39:48
  Speaker 1: of discovery is an extreme outlier, even in other cases
• 39:52
  Speaker 1: involving massive amounts of data. The state has not complied
• 39:55
  Speaker 1: with the court's deadlines, and thus has derailed counsel's review
• 39:59
  Speaker 1: of the state's case and evidence in the months before trial.
• 40:03
  Speaker 1: Like in the Thalo Daybell case, but in a much
• 40:05
  Speaker 1: more extreme fashion, prejudice has occurred because of the proximity
• 40:09
  Speaker 1: to trial, the volume of discovery, and the inability of
• 40:12
  Speaker 1: the defense to adequately review that discovery before trial begins.
• 40:17
  Speaker 1: The Due Process Clause requires a balance of forces between
• 40:20
  Speaker 1: the accused and his accuser. See Wardius v. Oregon, 412 U.S. 470-474-1973.
• 40:28
  Speaker 1: The Eighth Amendment requires a heightened standard to be applied
• 40:32
  Speaker 1: to capital cases, and therefore lesser prejudice is required to
• 40:36
  Speaker 1: preclude the death penalty in an effort to balance the
• 40:39
  Speaker 1: forces of due process. See United States v. Lopez, Mattias,
• 40:44
  Speaker 1: 522 F. 3D 150, 154 and 9 First Circuit 2008. In
• 40:51
  Speaker 1: a capital case, when the stakes are so high, a
• 40:53
  Speaker 1: smaller quantum of prejudice may justify a sanction. And as
• 40:57
  Speaker 1: discussed above, striking the notice is not quite as serious
• 41:01
  Speaker 1: as dismissing the indictment altogether, and so perhaps still less
• 41:04
  Speaker 1: prejudice is required. If this proceeds as a non-capital case,
• 41:09
  Speaker 1: heightened due process is not required. nor will heightened scrutiny
• 41:12
  Speaker 1: be applied on appeal if a conviction results, and thus
• 41:15
  Speaker 1: all parties are more likely to obtain a final outcome
• 41:18
  Speaker 1: at trial. Thus, the prejudice to the prosecution in precluding
• 41:23
  Speaker 1: death is relatively small. They can still seek a death
• 41:26
  Speaker 1: in prison sentence. On the other hand, the prejudice to Mr.
• 41:29
  Speaker 1: Koberger in proceeding to a capital trial under such circumstances
• 41:33
  Speaker 1: is unconstitutionally grave. While the prosecution seemingly suggests, without having
• 41:39
  Speaker 1: the fortitude to make the outright request, a continuance as
• 41:43
  Speaker 1: a remedy, states response at 9 and 10, that is
• 41:46
  Speaker 1: not a fair nor a sufficient remedy. Mr. Kohlberger is
• 41:49
  Speaker 1: being held without bond. It's patently unfair to restrict his
• 41:52
  Speaker 1: freedom for months or years to come in order to
• 41:56
  Speaker 1: fix a problem that has been and continues to be
• 41:58
  Speaker 1: within the government's control. Moreover, the Sixth Amendment right to
• 42:02
  Speaker 1: a speedy trial belongs not only to a criminal defendant,
• 42:05
  Speaker 1: but to the public. there is a societal interest in
• 42:09
  Speaker 1: providing a speedy trial which exists separate from the interests
• 42:13
  Speaker 1: of the accused, Barker v. Wingo, 407 U.S. 514-519-1972. This
• 42:21
  Speaker 1: court has been clear that trial will proceed on schedule,
• 42:24
  Speaker 1: and the state has long been aware of this date.
• 42:28
  Speaker 1: Precluding the death penalty is the only way a 2025
• 42:31
  Speaker 1: trial can be accomplished in accordance with the state and
• 42:34
  Speaker 1: federal constitutions. This document was dated March 24th of 2025
• 42:41
  Speaker 1: and it was signed by Ann Taylor. All of the
• 42:45
  Speaker 1: information that goes with this episode, including my contact information,
• 42:49
  Speaker 1: can be found in the description box.