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Murder In Moscow: Bryan Kohberger And The Subpoena He Sent To Bethany Funke · Beyond The Horizon

• 0:00
  Speaker 1: What's up everyone and welcome back to the program. Yesterday
• 0:05
  Speaker 1: we learned that Brian Koberger is attempting to subpoena Bethany
• 0:09
  Speaker 1: Funk to try and get her to testify at the
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  Speaker 1: preliminary hearing coming up in June. Well, we talked about
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  Speaker 1: it a little bit yesterday, but this article from the
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  Speaker 1: Idaho Statesman goes into a little bit more detail and
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  Speaker 1: gives us a little more context. So, Let's dive into
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  Speaker 1: this article from the Idaho Statesman and let's see what
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  Speaker 1: author Kevin Fixler has for us. Headline, Koberger defense team
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  Speaker 1: wants the Moscow survivor's testimony. This is why they may
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  Speaker 1: not get it. And like I said, this article was
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  Speaker 1: published by the Idaho Statesman and it was authored by
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  Speaker 1: Kevin Fixler. Brian Koberger's defense team believes one of the
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  Speaker 1: two surviving roommates from the Moscow stabbings that killed four students,
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  Speaker 1: has information that could help exonerate their client, and is
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  Speaker 1: seeking her testimony. Her lawyer is trying to prevent her
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  Speaker 1: from appearing at the scheduled preliminary hearing in June. At
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  Speaker 1: the request of Koberger's public defenders, Judge Megan Marshall of
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  Speaker 1: the 2nd Judicial District Court in Latah County last month
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  Speaker 1: forced Bethany Funk to travel to Idaho for the hearing,
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  Speaker 1: according to court documents obtained by the Idaho statesman. Marshall
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  Speaker 1: wrote that Funk could be a key witness for the
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  Speaker 1: defendant in this case, and a formal subpoena was issued
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  Speaker 1: on April 11th in Nevada, where Funk lives. So, so far,
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  Speaker 1: so good for Brian Kohlberger and his defense team. Judge
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  Speaker 1: Marshall issues this subpoena after they show due cause for
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  Speaker 1: the subpoena to be issued. However, that's not where it stops,
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  Speaker 1: and that is not the final say-so. She is no
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  Speaker 1: longer a resident of Idaho. Marshall will determine at the
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  Speaker 1: scheduled week-long preliminary hearing beginning June 26th whether prosecutors have
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  Speaker 1: found probable cause to bring Kohlberger's case to trial. A
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  Speaker 1: criminal investigator working for Ann Taylor, Kohlberger's public defender, said
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  Speaker 1: in a legal filing that police interviewed Funk several times
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  Speaker 1: as part of their investigation into the November slayings at
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  Speaker 1: an off-campus rental home near the University of Idaho. Funk
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  Speaker 1: and another roommate went unharmed in the knife attack that
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  Speaker 1: killed their housemates, Madison Mogan, Kaylee Gonsalves, Zanna Kernodle, as
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  Speaker 1: well as Ethan Chapin, who was staying the night with Kernodle,
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  Speaker 1: his girlfriend. In addition, Funk was present when police were
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  Speaker 1: called and arrived to the King Road home to find
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  Speaker 1: the slain students about eight hours after police allege Kohlberger
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  Speaker 1: entered the home around 4 a.m. Criminal investigator Richard Batanti said,
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  Speaker 1: Funk has information that is exculpatory to the defendant. He
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  Speaker 1: wrote a legal terminology, meaning the details disprove Kohlberger's guilt.
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  Speaker 1: So according to this investigator, he says that he found
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  Speaker 1: information during those interviews or during his investigation, his private investigation,
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  Speaker 1: that would lead him to believe that Bethany Funk has
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  Speaker 1: exculpatory evidence that would disprove, basically, what the affidavit or
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  Speaker 1: what the other roommate has to say. So, of course,
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  Speaker 1: they want to get her on the stand. And obviously,
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  Speaker 1: for her part, the last thing she wants to do,
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  Speaker 1: I would guess, is be a witness for Brian Kohlberger.
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  Speaker 1: Portions of information Ms. Funk has is exculpatory to the defendant,
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  Speaker 1: Batanti wrote. to justify the out-of-state subpoena. Ms. Funk's information
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  Speaker 1: is unique to her experiences and cannot be provided by
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  Speaker 1: another witness. The new wrinkle in Nevada adds another U.S.
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  Speaker 1: state to the homicide case, which has brought national and
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  Speaker 1: international attention to Idaho. This is one of those complex
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  Speaker 1: cases where you're going to see a lot of people
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  Speaker 1: get wrapped up in a lot of different states. And
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  Speaker 1: Brian Kohlberger, living in several different states... having ties to
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  Speaker 1: several different states, and then these victims, some of them
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  Speaker 1: having ties to places outside of Idaho, well, you see
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  Speaker 1: how it draws other places in. And then, of course,
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  Speaker 1: we see in Pennsylvania that they've already been looking into
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  Speaker 1: cold cases that might be tied to Brian Koberger. Koberger
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  Speaker 1: was attending graduate school just over the Washington state border
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  Speaker 1: at the time of the homicides and was later arrested
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  Speaker 1: while visiting his family in Pennsylvania. He and his father,
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  Speaker 1: also were captured on police body cam footage in Indiana
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  Speaker 1: as they road tripped from Washington to Pennsylvania during Kohlberger's
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  Speaker 1: winter break from Washington State University. Funk's bedroom was on
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  Speaker 1: the first floor of the three-story home in Moscow, and
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  Speaker 1: she and the other surviving roommate, whose bedroom was on
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  Speaker 1: the second floor, were home at the time of the killings,
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  Speaker 1: police said in an affidavit for Kohlberger's arrest. And we
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  Speaker 1: really haven't heard much about Bethany Funk or about what
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  Speaker 1: she saw or didn't see or heard or didn't hear.
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  Speaker 1: The majority of stuff that we know that has been
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  Speaker 1: released to the public comes directly from that affidavit. And
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  Speaker 1: in that affidavit, we hear about Dylan Mortensen and her
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  Speaker 1: run-in with the person that the government's saying is Brian Kohlberger.
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  Speaker 1: Funk told police in an interview that she saw Kernodle
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  Speaker 1: and Chapin at the Sigma Chi fraternity house from about
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  Speaker 1: 9 p.m. November 12th until about 1.45 a.m., November 13th,
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  Speaker 1: when they returned to the King Road home, police said.
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  Speaker 1: Sigma Chi is located fewer than 600 feet from the
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  Speaker 1: home where the homicides took place. Funk and the other
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  Speaker 1: survivor each told police that all five housemates and Chapin
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  Speaker 1: were back at the home by 2 a.m., according to
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  Speaker 1: the affidavit. Everyone was asleep or in their respective bedrooms
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  Speaker 1: by 4 a.m., with the exception of Kernodle, who received
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  Speaker 1: a food delivery to the home at approximately 4 a.m.,
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  Speaker 1: police said. So we know that she got that DoorDash,
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  Speaker 1: and we also know that she was up on TikTok,
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  Speaker 1: scrolling around, Instagram, whatever it was, at around this time
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  Speaker 1: as well. So she wasn't asleep when this all went down.
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  Speaker 1: Police said records they downloaded from the two surviving roommates'
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  Speaker 1: cell phones helped lead them to believe that the homicides happened.
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  Speaker 1: between 4 a.m. and 4.25 a.m., and one of the
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  Speaker 1: roommate's cell phones also was used to call 911 dispatch
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  Speaker 1: just before noon on November 13th, police said. And we
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  Speaker 1: know that it took a very long time for 911
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  Speaker 1: to be called. And honestly, that really hasn't been explained
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  Speaker 1: well enough yet either. There's still so much that we
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  Speaker 1: don't know. And unfortunately, most of that stuff we won't
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  Speaker 1: know until trial, if ever. There are no other references
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  Speaker 1: to Funk in the affidavit to indicate what else she
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  Speaker 1: may have told investigators. It is not known whether the
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  Speaker 1: other surviving roommate was served with a subpoena to testify
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  Speaker 1: at the preliminary hearing. She told police she saw a
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  Speaker 1: masked man in the house. And that's what I was
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  Speaker 1: just talking about. We really don't know too much about
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  Speaker 1: Bethany Funk and her interaction with Brian Koberger, allegedly in
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  Speaker 1: that house, if it ever happened, or what she talked
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  Speaker 1: to the police about. All we have are bits and pieces,
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  Speaker 1: and certainly we are still far away from the completed story.
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  Speaker 1: Funk fends off subpoena. Funk's attorney is trying to nullify
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  Speaker 1: the court-ordered subpoena, and the legal demand for her client
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  Speaker 1: to appear in Idaho... was improperly issued because a hearing
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  Speaker 1: on the matter was not first held in Nevada. Reno-based
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  Speaker 1: attorney Kellyanne Valoria said in an April 21st court filing,
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  Speaker 1: there is no authority to summon a Nevada witness to
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  Speaker 1: an Idaho matter without a Nevada judge making a finding
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  Speaker 1: of materiality, necessity, and the lack of undue hardship. Valoria wrote,
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  Speaker 1: citing a law that does allow for such subpoenas, but
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  Speaker 1: only within the state. Thus, even if that law is
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  Speaker 1: applied by analysis, no hearing occurred and that important procedural
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  Speaker 1: requirement was not met. So what do we always talk about?
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  Speaker 1: Loopholes and technicalities. And that's what Bethany Funk's lawyer is
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  Speaker 1: doing here. She's utilizing one of these technicalities. You have
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  Speaker 1: to follow all of the proper methods, go through all
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  Speaker 1: of the proper channels, have all of the proper hearings,
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  Speaker 1: or else you will find yourself in jeopardy of the
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  Speaker 1: court ruling against you. An expanded gag order that Marshall
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  Speaker 1: issued in January restricts attorneys for victims or witnesses in
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  Speaker 1: the Koberger case from commenting about it outside of court filings.
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  Speaker 1: Besides issues over following proper procedure, Valoria, a former longtime
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  Speaker 1: county prosecutor, wrote that a preliminary hearing is not the
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  Speaker 1: right setting for the defense to summon an out-of-state witness,
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  Speaker 1: which she said Nevada law does not offer. So you're
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  Speaker 1: going to run into a problem of jurisdiction, and there
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  Speaker 1: will have to be a battle royale in the courtroom
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  Speaker 1: to figure it all out. A preliminary hearing is not
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  Speaker 1: meant to become a mini-trial due to its limited purpose
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  Speaker 1: in deciding of probable cause, she argued. Arguably, then, if Ms.
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  Speaker 1: Funk possesses exculpatory evidence, which remains to be seen, there
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  Speaker 1: is no place or reason to present that evidence at
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  Speaker 1: a preliminary hearing. The presentation of evidence by the defense
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  Speaker 1: is exceedingly rare, at a preliminary hearing, but it is
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  Speaker 1: allowed in Idaho, said Edwina Elcox, a criminal defense attorney
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  Speaker 1: in Boise who previously served as an Ada County deputy prosecutor.
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  Speaker 1: Although it's seldom done because it can give away defense
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  Speaker 1: strategy to prosecution, she said an attorney may pursue it
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  Speaker 1: if it could prevent a case from going to trial.
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  Speaker 1: It's a Hail Mary. That's what this is, folks. from
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  Speaker 1: the research that I've been doing, the articles I've read
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  Speaker 1: the last couple of days now, certainly looks to me
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  Speaker 1: that this is nothing more than a Hail Mary on
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  Speaker 1: Koberger's part, because they know the evidence is really stacked
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  Speaker 1: against them, and the last thing they want to do
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  Speaker 1: is go to trial. If we're using the word exculpatory,
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  Speaker 1: that means it negates his guilt, Elcox told the statesman
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  Speaker 1: in a phone interview. The word is very legally significant.
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  Speaker 1: If whatever this witness possesses is so significant, it could
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  Speaker 1: convince the judge that the state has not established probable
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  Speaker 1: cause and to say, okay, this evidence shows that it
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  Speaker 1: wasn't him. So that would be very powerful evidence. But
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  Speaker 1: my initial reaction here is they don't have anything that
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  Speaker 1: is that powerful and that the thought of going to
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  Speaker 1: trial is terrifying Brian Koberger's lawyers because of all of
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  Speaker 1: this evidence that is stacked against them. So obviously, if
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  Speaker 1: they can get this thrown out before it gets to
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  Speaker 1: any kind of trial, so much the better. The legal
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  Speaker 1: and procedural pushback from Funk and her attorney also may
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  Speaker 1: derive from the request for her testimony coming from the
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  Speaker 1: defense in this case, rather than the prosecution, Elcock said.
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  Speaker 1: And that's where I'm at as well. I believe that
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  Speaker 1: if it was the prosecution requesting her come and testify
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  Speaker 1: against Brian Koberger, she'd be doing it without any kind
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  Speaker 1: of pushback. But considering it's Koberger trying to get her
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  Speaker 1: to testify basically in his defense, she doesn't want anything
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  Speaker 1: to do with it. And can you blame her? People
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  Speaker 1: typically want to cooperate with law enforcement agencies, she said.
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  Speaker 1: So I think it's entirely feasible that if the prosecution
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  Speaker 1: was seeking her attendance, that there wouldn't be this issue
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  Speaker 1: of dropping the subpoena or whatnot. It is unclear whether
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  Speaker 1: Funk will be forced to show up June 28th in Moscow,
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  Speaker 1: through the remainder of the hearing, as the subpoena required.
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  Speaker 1: A material witness case is listed online as pending active
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  Speaker 1: with Judge Barry Breslow and the 2nd Judicial District Court
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  Speaker 1: in Washoe County, Nevada. The most recent court filing is
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  Speaker 1: Valoria's motion Friday to invalidate the subpoena. There are no
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  Speaker 1: upcoming hearings on the case docket, Alicia LaRude, the district
• 12:28
  Speaker 1: court's administrator and clerk of court, said by email. And
• 12:32
  Speaker 1: I'm not certain one will be scheduled, she said. So
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  Speaker 1: that's interesting as well. Obviously, we're going to keep our
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  Speaker 1: eye on things here and see what comes of this.
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  Speaker 1: All right, folks, that's going to do it for me
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  Speaker 1: for this one. All of the information that goes with
• 12:46
  Speaker 1: the episode can be found in the description box.