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Mega Edition: Bryan Kohberger And The Declarations In Support Of His Innocence (9/19/26) · Beyond The Horizon

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  Speaker 1: What's up everyone and welcome back to the program. This
• 0:03
  Speaker 1: episode we're going to dive back into those court documents
• 0:06
  Speaker 1: and this time we're taking a look at the notice
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  Speaker 1: of filing declaration of Gabriela Vargas in support of defendants
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  Speaker 1: third motion to compel. So let's get cracking. Case number
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  Speaker 1: CR 29-22-2805. Notice of filing declaration of Gabriela Vargas in
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  Speaker 1: support of defendants third motion to compel. state of Idaho plaintiff,
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  Speaker 1: versus Brian C. Koberger, the defendant. Comes now. Brian C. Koberger,
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  Speaker 1: by and through his attorney of record, Ann C. Taylor,
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  Speaker 1: public defender, and hereby files the attached declaration of Gabriella
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  Speaker 1: Vargas in support of the defendant's third motion to compel.
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  Speaker 1: Dated this 17th day of August 2023 and signed by
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  Speaker 1: Ann Taylor. The next document we have is the declaration
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  Speaker 1: of Gabriella Vargas. Case numbers CR 29-22-2805. State of Idaho
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  Speaker 1: plaintiff versus Brian C. Koberger, the defendant. 1. I, Gabriella Vargas,
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  Speaker 1: am an adult over the age of 18 and I
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  Speaker 1: have personal knowledge of the facts set forth in this declaration. 2.
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  Speaker 1: I have been engaged as an expert in the above
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  Speaker 1: entitled matter since August of 2023. 3. My educational background
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  Speaker 1: is in administration of justice and criminology. I've spent my
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  Speaker 1: professional career working for the California court system, law firms,
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  Speaker 1: insurance and finance firms. I got my start in this
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  Speaker 1: field after receiving unexpected DNA results in the spring of 2018.
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  Speaker 1: Number four, I am an investigative genetic genealogist specializing in
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  Speaker 1: Hispanic and African-American ancestry genetics. degraded DNA, and endogamy. I
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  Speaker 1: founded DNAID and have run the business since the spring
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  Speaker 1: of 2020. Prior to my own company, I spent several
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  Speaker 1: years doing investigative genetic genealogy for other companies such as
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  Speaker 1: the DNA Doe Project and Identifinders International. Number five, while
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  Speaker 1: working for those companies, I held the role of team leader,
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  Speaker 1: senior forensic genealogist, teacher, mentor, case auditor, intake specialist, and
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  Speaker 1: lab liaison. 6. I have taught IgG fundamentals, best research
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  Speaker 1: practices and procedures, DNA, data analysis, and trained incoming genealogists. 7.
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  Speaker 1: I have contracted with the University of New Haven to
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  Speaker 1: provide a structured practicum for students, collaborated on cases with
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  Speaker 1: the National Center for Missing and Exploited Children, and the
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  Speaker 1: Washington Attorney General's Office, as well as provided education, training,
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  Speaker 1: and case collaboration to the Australian Federal Police for the
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  Speaker 1: development of their IGG program, standards, and practices. Number eight.
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  Speaker 1: Through extensive and skilled genealogical research and analysis, I have
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  Speaker 1: successfully provided law enforcement with over 50 crime-solving investigative leads.
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  Speaker 1: Number nine. I work with law enforcement nationwide in an
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  Speaker 1: effort to identify previously unknown DNA contributors through a process
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  Speaker 1: known as Investigative Genetic Genealogy, IgG. This technique has revolutionized
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  Speaker 1: cold case investigations and transformed the way violent crime suspects
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  Speaker 1: and skeletal remains are identified. Number 10. The sole focus
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  Speaker 1: of the traditional law enforcement databases like CODIS is is
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  Speaker 1: to compare crime scene DNA against the genetic profiles for
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  Speaker 1: those who are known offenders with prior convictions. This process
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  Speaker 1: only utilizes 20 genetic markers and therefore limits the power
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  Speaker 1: of DNA analysis, which can and does lead to cases
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  Speaker 1: going cold. Investigative genetic genealogy combines advanced DNA testing with
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  Speaker 1: traditional genealogy research in an effort to identify a previously
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  Speaker 1: unknown DNA contributor in a family tree. 11. The DOJ
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  Speaker 1: recommends that law enforcement seek out investigative genetic genealogy services
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  Speaker 1: only after all other investigative methods have been exhausted. It
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  Speaker 1: is widely known within my industry that many agencies use
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  Speaker 1: this technique as the first and only method. 12. The
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  Speaker 1: IgG process starts when law enforcement agencies reach out to
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  Speaker 1: genealogists seeking collaboration on a case and then contract with
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  Speaker 1: the individual for services. Number 13. Chain of custody is
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  Speaker 1: best maintained when the requesting agency sends the crime scene
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  Speaker 1: DNA sample to a private lab that is capable of
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  Speaker 1: genotyping or whole genome sequencing. Once the sample arrives at
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  Speaker 1: the lab, The genealogist usually takes lead on the case
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  Speaker 1: until the person of interest is identified. The lab creates
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  Speaker 1: a genetic profile of the unknown DNA contributor, and the
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  Speaker 1: raw data file containing hundreds of thousands of genetic markers
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  Speaker 1: is generated and sent to the genealogist. This file is
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  Speaker 1: then uploaded to the public direct-to-consumer DNA databases, GEDmatch, and
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  Speaker 1: FamilyTree DNA. where autosomal comparisons are made between the subject
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  Speaker 1: and thousands of individuals who have voluntarily contributed their DNA
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  Speaker 1: profiles to the databases and opted in to law enforcement matching.
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  Speaker 1: A list of matches who are biologically related to the
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  Speaker 1: subject is displayed with some basic identifying information and the
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  Speaker 1: amount of DNA shared between the individuals. Tools within the
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  Speaker 1: databases include allow for further analysis of the DNA data
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  Speaker 1: and the ability to predict the most likely relationship between
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  Speaker 1: the match and the unknown DNA contributor. In-depth research on
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  Speaker 1: family history, structure, and DNA data alignment is conducted, and
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  Speaker 1: family trees for each match are built back and then
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  Speaker 1: forward in time. These trees are analyzed by the genealogist
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  Speaker 1: for common ancestors surnames, locations, and any other significant clues
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  Speaker 1: that provide insight into identifying the person of interest. Throughout
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  Speaker 1: the process, other tools can be used to further analyze
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  Speaker 1: Y-DNA and MT-DNA, ethnicity, one-to-one and multiple kit comparisons, triangulation,
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  Speaker 1: and chromosome segments. 14. These database tools have known loopholes
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  Speaker 1: that allow a genealogist to see matches that have explicitly
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  Speaker 1: declined to participate in law enforcement matching. This is not
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  Speaker 1: a glitch in the programming causing this by accident. It
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  Speaker 1: is standard feature within the tools that essentially tricks the
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  Speaker 1: system into displaying all matches as opposed to only those
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  Speaker 1: who have consented to law enforcement matching. This is not
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  Speaker 1: a loophole, nor is it something you will stumble upon.
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  Speaker 1: Using this tool this way requires effort and knowledge. Number 15.
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  Speaker 1: Databases for law enforcement cases require a fee be paid
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  Speaker 1: in order to upload the genetic profile. This is not
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  Speaker 1: the same for consumers who are not charged. Many in
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  Speaker 1: the field have been known to upload to these sites
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  Speaker 1: as regular consumer to avoid paying the associated fees and
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  Speaker 1: the bypass having opted out matches. In addition, some databases
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  Speaker 1: include restrict law enforcement uploading cases. However, that has not
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  Speaker 1: prevented it from happening. Number 16. I am aware that
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  Speaker 1: law enforcement has obtained results in ways prohibited by terms
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  Speaker 1: of use and prohibited by their own policies. This document
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  Speaker 1: was dated August 17th and it was signed by Gabriela Vargas.
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  Speaker 1: All right, folks, that's going to do it for this one.
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  Speaker 1: All of the information that goes with this episode can
• 8:40
  Speaker 1: be found in the description box. What's up, everyone, and
• 8:44
  Speaker 1: welcome back to the program. In this episode, we're getting
• 8:48
  Speaker 1: right back to those court documents. And this time, we're
• 8:51
  Speaker 1: taking a look at the declaration of Grace Wong in
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  Speaker 1: support of interveners' opposition to motion to remove cameras from
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  Speaker 1: the courtroom. Case number? CR 29-22-2805. The state of Idaho
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  Speaker 1: versus Brian C. Koberger. Number one, I am the senior
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  Speaker 1: director of courtroom coverage for Court TV. Two, I have
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  Speaker 1: worked for Court TV for more than 20 years collectively
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  Speaker 1: the last five years, since it was relaunched in 2018.
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  Speaker 1: Number three, Court TV regularly provides camera coverage of trials
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  Speaker 1: around the country. filming gavel to gavel while complying with
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  Speaker 1: each jurisdiction and judge's unique rules for access. Four, Court
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  Speaker 1: TV's professionalism has led to expanded camera access in courtrooms
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  Speaker 1: that have historically been closed to cameras. Number five, for example,
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  Speaker 1: in Minnesota, versus Derek Chauvin, the Minnesota police officer convicted
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  Speaker 1: of murdering George Floyd, the Honorable Peter Cahill, permitted lie
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  Speaker 1: broadcasting with three cameras and multiple microphones, even though Minnesota
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  Speaker 1: restricted camera access. 6. Judge Cahill imposed a ban on
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  Speaker 1: showing perspective and deliberating jurors, put restrictions on showing victims'
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  Speaker 1: family members and minors without permission, and barred filming the
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  Speaker 1: defendant without his lawyer and prosecutors also in the frame.
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  Speaker 1: Number seven. Court TV served as pool, offering our feeds
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  Speaker 1: to dozens of media organizations and broadcast the trial to
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  Speaker 1: a global audience. Number eight. Live coverage of Chauvin's trial
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  Speaker 1: was widely viewed as a success, and there were no
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  Speaker 1: violations by Court TV of the media order during the
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  Speaker 1: nearly seven-week trial. Number nine. The Minnesota Supreme Court, despite
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  Speaker 1: recommendations by its own advisory committee to maintain the status quo,
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  Speaker 1: moved to change its rules governing access and expanded audiovisual
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  Speaker 1: coverage of criminal trials. Number 10. In Court TV's more
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  Speaker 1: than 30-year history covering trials, I am unaware of any
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  Speaker 1: mistrials resulting from camera coverage. Number 11. Indeed, some of
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  Speaker 1: the highest publicity trials have led to acquittals. 12. Court
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  Speaker 1: TV served as pool for Casey Anthony's capital murder trial
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  Speaker 1: in Orlando, one of the most publicized criminal trials in
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  Speaker 1: my recollection at Court TV. 13. Even in the face
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  Speaker 1: of daily national press coverage widely publicizing her pre-trial and trial, Ms.
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  Speaker 1: Anthony was acquitted. 14. Similarly, in Wisconsin v. Kyle Rittenhouse,
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  Speaker 1: the teenager accused of fatally shooting two protesters and wounding
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  Speaker 1: a third was acquitted of murder and attempted murder with
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  Speaker 1: court TV, providing camera coverage prior to and during the trial.
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  Speaker 1: Number 15. In Ohio v. Dr. William Hussel, one of
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  Speaker 1: the biggest murder cases in state history, an Ohio doctor
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  Speaker 1: was charged with 14 murders for overdosing his patients with
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  Speaker 1: fentanyl was acquitted. Court TV and numerous other outlets provided
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  Speaker 1: live coverage of the trial. 16. In Florida vs. Travis Rudolph,
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  Speaker 1: the ex-NFL player was acquitted of first-degree murder and three
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  Speaker 1: counts of attempted murder in a shooting that occurred during
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  Speaker 1: a confrontation at his home. Court TV and numerous other
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  Speaker 1: outlets provided live coverage of the trial. 17. In Florida vs.
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  Speaker 1: Curtis Reeves, the retired police captain was acquitted of murder
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  Speaker 1: for shooting to death a man who threw popcorn at
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  Speaker 1: him in a movie theater, with Court TV providing camera
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  Speaker 1: coverage prior to and during the trial. 18. In Ohio vs.
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  Speaker 1: Skylar Richardson, the teen cheerleader was acquitted of murder in
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  Speaker 1: the death of her newborn daughter whom she burned and
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  Speaker 1: buried in her backyard, with Court TV providing camera coverage
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  Speaker 1: prior and during the trial. Number 19. In Florida vs.
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  Speaker 1: George Zimmerman, it was more than a year before Neighborhood
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  Speaker 1: Watch volunteer George Zimmerman went to trial in a case
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  Speaker 1: that garnered months of intense publicity. He was acquitted of
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  Speaker 1: murder for shooting unarmed 17-year-old Trayvon Martin with Court TV,
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  Speaker 1: providing camera coverage prior to and during the trial. Number 20.
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  Speaker 1: In California vs. OJ Simpson, one of Court TV's first trials,
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  Speaker 1: Simpson was found not guilty in the murders of his
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  Speaker 1: estranged wife and her friend, with Court TV providing camera
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  Speaker 1: coverage prior to and during the trial. Number 21. In
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  Speaker 1: New York v. Boss, four NYPD police officers were acquitted
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  Speaker 1: for shooting an African-American immigrant 19 times after they mistook
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  Speaker 1: his wallet for a gun, with Court TV providing camera
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  Speaker 1: coverage prior to and during the trial. 22. In Kentucky vs.
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  Speaker 1: Brett Hankinson, Hankinson was acquitted of three counts of endangerment
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  Speaker 1: in the botch raid that killed Breonna Taylor. Taylor was
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  Speaker 1: killed on March 13th of 2020. The trial was in
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  Speaker 1: March 2020, nearly two years after her death, with Court
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  Speaker 1: TV providing camera coverage prior to and during the trial. 23.
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  Speaker 1: Court TV provided pool coverage of Jodi Arias' capital murder trial.
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  Speaker 1: In that case, the jury could not reach a unanimous
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  Speaker 1: decision on the death penalty. Court TV did not cover
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  Speaker 1: her second trial, in which the jury was asked to
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  Speaker 1: consider only punishment. The jury once again could not reach
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  Speaker 1: a unanimous verdict for death, and she was sentenced to
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  Speaker 1: life in prison. The Arias case received wide publicity before
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  Speaker 1: and after her trials. Her case spawned countless articles, books, movies,
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  Speaker 1: and several documentaries. Number 24. Court TV covered the death
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  Speaker 1: penalty phase in the case against Nicholas Cruz, the mass
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  Speaker 1: shooter at Marjory Stoneman Douglas High School in Parkland, Florida.
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  Speaker 1: Cruz pleaded guilty to 17 counts of murder and 17
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  Speaker 1: counts of attempted murder. The jury in that case could
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  Speaker 1: not reach a unanimous decision for death, and he was
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  Speaker 1: sentenced to life. Court TV assisted with pool coverage and
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  Speaker 1: provided live coverage of the sentencing phase. Number 25. In
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  Speaker 1: this proceeding, Court TV's pool coverage of the August 18th
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  Speaker 1: hearing included testimony from witnesses, the judge's rulings, and attorney arguments,
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  Speaker 1: and Kohlberger in context as part of the entire hearing. 26.
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  Speaker 1: Court TV did film some close-ups of Koberger as well
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  Speaker 1: as close-ups of the judge and attorneys when speaking, consistent
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  Speaker 1: with the judge's order not to focus solely on the defendant.
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  Speaker 1: Number twenty-seven. It is Court TV's policy to comply with
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  Speaker 1: all court orders in every proceeding, and Court TV has
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  Speaker 1: followed its policy in this case as well. Number twenty-eight.
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  Speaker 1: Court TV can adjust coverage to comply with highly specific
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  Speaker 1: courtroom requirements that can address many concerns without eliminating cameras
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  Speaker 1: in the courts. I declare under penalty of perjury under
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  Speaker 1: the laws of the United States of America and the
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  Speaker 1: state of Idaho that the foregoing is true and correct.
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  Speaker 1: This was dated September 8th, 2023 and signed by Grace Wong.
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  Speaker 1: All right, folks, that's going to do it for this one.
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  Speaker 1: If you'd like to contact me, you can do that
• 16:47
  Speaker 1: at bobbycapucci at protonmail.com. That's B-O-B-B-Y-C-A-P-U-C-C-I at protonmail.com. All of
• 16:57
  Speaker 1: the information that goes with this episode can be found
• 17:01
  Speaker 1: in the description box. What's up, everyone, and welcome back
• 17:06
  Speaker 1: to the program. In this episode, we're going to dive
• 17:09
  Speaker 1: right back into those court documents, and this time, we're
• 17:12
  Speaker 1: taking a look at the Notice of Filing Act. Declaration
• 17:16
  Speaker 1: of Stephen B. Mercer in support to the defendant's third
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  Speaker 1: motion to compel. Case number CR 29-22-2805. State of Idaho
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  Speaker 1: plaintiff versus Brian C. Koberger, the defendant. Comes now. Brian C. Koberger,
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  Speaker 1: by and through his attorney, of record, Ann C. Taylor,
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  Speaker 1: public defender, and hereby files the attached declaration of Stephen B.
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  Speaker 1: Mercer in support of the defendant's third motion to compel.
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  Speaker 1: Dated this 22nd day of June of 2023 and signed
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  Speaker 1: by Ann C. Taylor, the public defender. The Declaration of
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  Speaker 1: Stephen B. Mercer. 1. The defense has retained me to
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  Speaker 1: determine what a reasonably competent criminal defense attorney would do
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  Speaker 1: to adequately investigate and understand DNA evidence, including forensic, genetic,
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  Speaker 1: genealogical DNA analysis, and search, FGGS, also referred to as
• 18:20
  Speaker 1: investigative genetic genealogy, IgG, when representing a defendant in a
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  Speaker 1: criminal case. I have based my opinions on my training
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  Speaker 1: and experience as the former Chief Attorney of the Forensic
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  Speaker 1: Division at Maryland's Office of the Public Defender and Director
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  Speaker 1: of its Statewide Litigation Support Group and my professional and
• 18:42
  Speaker 1: litigation experience as a legal practitioner. including casework in two
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  Speaker 1: FGGS IgG matters two I have included my resume with
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  Speaker 1: this declaration to summarize for much of my 28 years
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  Speaker 1: practicing law I have been actively involved in litigation training
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  Speaker 1: and commentary related to issues arising at the intersection of
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  Speaker 1: DNA technology and the law in 2003 I litigated the
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  Speaker 1: first constitutional challenge to Maryland's DNA data bank. I later
• 19:18
  Speaker 1: led the successful effort before the Maryland General Assembly and
• 19:22
  Speaker 1: the D.C. Council to ban familial searching of DNA data banks.
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  Speaker 1: That litigation led to DNA training and opportunities to work
• 19:31
  Speaker 1: closely with expert DNA scientists and tour forensic DNA laboratories. NIST, Bode,
• 19:39
  Speaker 1: Maryland State Police, and Montgomery County Police. By 2005, I
• 19:45
  Speaker 1: began collaborating with Maryland's Office of the Public Defenders, Division
• 19:50
  Speaker 1: on post-conviction DNA innocence cases and assisted with OPD's DNA
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  Speaker 1: College training for assistant public defenders. In 2010, the public
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  Speaker 1: defender recruited me to become the chief attorney of OPD's
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  Speaker 1: Forensic Division. In 2011, Governor Martin O'Malley appointed me to
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  Speaker 1: represent Maryland on the Education, Ethics, and Terminology Interagency Working
• 20:17
  Speaker 1: Group established to support the Subcommittee on Forensic Sciences and
• 20:22
  Speaker 1: the Executive Office of the President on Policies, Procedures, and
• 20:27
  Speaker 1: Plans related to forensic science at the local, state, and
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  Speaker 1: federal levels. In 2016, I addressed by invitation the President's
• 20:37
  Speaker 1: Council of Advisors on Science and Technology about the admissibility
• 20:42
  Speaker 1: and reliability of forensic science in criminal cases. I have
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  Speaker 1: also been invited to address the FBI's National CODIS Symposium
• 20:52
  Speaker 1: on the Privacy and Racial Justice Implications of Familial Searching
• 20:56
  Speaker 1: DNA Databanks. I addressed these same topics by invitation before
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  Speaker 1: the American Academy of Forensic Sciences and the National Institute
• 21:06
  Speaker 1: of Justice. In 2018, I addressed the American Academy of
• 21:11
  Speaker 1: Forensic Sciences, of which I am a member, on the
• 21:14
  Speaker 1: topic of the application of geonomics to forensic DNA analysis.
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  Speaker 1: Number three. From 2010 until 2017, as a chief attorney
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  Speaker 1: of the Forensic Division at OPD and director of its
• 21:44
  Speaker 1: statewide litigation support group, I was responsible for developing and
• 21:49
  Speaker 1: implementing training and litigation support services for the agency's 550
• 21:55
  Speaker 1: assistant public defenders across all fields of forensic science. The
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  Speaker 1: Forensic Division conducted an annual DNA college to train assistant
• 22:06
  Speaker 1: public defenders about the minimum practice standards for DNA cases.
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  Speaker 1: While at OPD, I routinely conducted case reviews with DNA
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  Speaker 1: scientists and assistant public defenders of DNA case files from
• 22:21
  Speaker 1: the FBI, the Maryland State Police, Bow Technologies, and county laboratories,
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  Speaker 1: Montgomery County, Prince George County, Baltimore County, Baltimore City, and
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  Speaker 1: Anne Arundel County. In 2016, the Maryland Judicial Training Institute
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  Speaker 1: invited me to assist with DNA training for judges. Later
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  Speaker 1: in 2017, I returned to private practice, focusing on criminal defense, post-conviction,
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  Speaker 1: and appellate litigation in Maryland and the District of Columbia,
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  Speaker 1: emphasizing forensic science issues. 4. My prior work at OPD
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  Speaker 1: is especially relevant to my review of the matter at
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  Speaker 1: hand because I was responsible for overseeing the training and
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  Speaker 1: litigation support for assistant public defenders in cases involving DNA evidence.
• 23:15
  Speaker 1: My team trained OPD's assistant public defenders that, at a minimum,
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  Speaker 1: in a case involving DNA and forensic science evidence, the
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  Speaker 1: duty to investigate requires the attorney to A, follow the
• 23:28
  Speaker 1: evidence from the crime scene to the testing laboratory, including
• 23:32
  Speaker 1: crime scene processing, the chain of custody, decisions to test,
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  Speaker 1: and searches of databases. B, to know what documentation typically
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  Speaker 1: exists related to the testing of evidence. including the range
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  Speaker 1: of police reports, crime scene processing reports, and documentation, C,
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  Speaker 1: to review case-related communications about evidence testing, D, to request
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  Speaker 1: crime lab documentation related to any forensic testing, and report,
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  Speaker 1: including the laboratory's case file and standard operating protocols, E,
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  Speaker 1: to identify any database search, and F, to seek out
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  Speaker 1: assistance and litigation support, including expert support when necessary to
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  Speaker 1: understand how to use the discovery to advance theory of defense.
• 24:23
  Speaker 1: Only when an attorney meets these minimum standards can the
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  Speaker 1: attorney make reasonable, tactical decisions about challenging inculpatory DNA forensic
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  Speaker 1: evidence and or introducing exculpatory DNA forensic evidence. 5. I
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  Speaker 1: was also responsible for overseeing the process for OPD's assistant
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  Speaker 1: public defenders to request expert services for their indigent clients.
• 24:50
  Speaker 1: Under Maryland's Public Defender Act, OPD is required to provide
• 24:55
  Speaker 1: necessary expenses of legal representation. Maryland Criminal Procedure Code CP
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  Speaker 1: Section 16-210-2013. The act links the determination of need to
• 25:09
  Speaker 1: the minimum constitutional standards by looking at factors such as
• 25:13
  Speaker 1: the nature of a case and the length and complexity
• 25:17
  Speaker 1: of the proceedings. Idaho at C3. To that end, I
• 25:21
  Speaker 1: developed and published internally at OPD a manual that articulated
• 25:27
  Speaker 1: when an attorney should request expert services at a minimum.
• 25:32
  Speaker 1: An attorney should request expert services when there is a
• 25:35
  Speaker 1: reasonable probability that 1. An expert would be of material
• 25:40
  Speaker 1: assistance to the defense and 2. That denial of expert
• 25:44
  Speaker 1: assistance would result in a fundamentally unfair trial. Assistance includes
• 25:50
  Speaker 1: preparing defense counsel to effectively investigate a case, obtain discovery,
• 25:55
  Speaker 1: negotiate a plea, challenge the possibility of evidence, cross-examine the
• 26:00
  Speaker 1: prosecution's experts, and present defense evidence and expert testimony. This
• 26:06
  Speaker 1: standard does not require a prima facie showing of what
• 26:10
  Speaker 1: counsel intends to prove at trial, nor must the factual
• 26:14
  Speaker 1: basis for the defense expert's opinions to be undisputed. Still,
• 26:19
  Speaker 1: there must be more than undeveloped assertions that the requested
• 26:24
  Speaker 1: assistance would be helpful. In summary, counsel for a client
• 26:28
  Speaker 1: may need to make a detailed, although not conclusive, showing
• 26:32
  Speaker 1: to justify the retention of an expert. 6. It is
• 26:36
  Speaker 1: a minimum practice standard for defense counsel investigation to obtain
• 26:41
  Speaker 1: discovery of DNA testing of evidence regardless of the prosecuting
• 26:46
  Speaker 1: authority's decision to offer the DNA testing results as evidence
• 26:50
  Speaker 1: at a hearing or trial. The minimum practice standard for
• 26:54
  Speaker 1: investigating DNA evidence is rooted in the ABA standards for
• 26:59
  Speaker 1: criminal justice, defense function, standard 4-4-1 section A, which outlines
• 27:04
  Speaker 1: the general responsibilities of a criminal defendant's trial counsel regarding
• 27:09
  Speaker 1: the duty to investigate. It states, defense counsel should conduct
• 27:14
  Speaker 1: a prompt investigation of the circumstances of the case and
• 27:18
  Speaker 1: explore all avenues leading to facts relevant to the merits
• 27:22
  Speaker 1: of the case and the penalty in the event of conviction.
• 27:26
  Speaker 1: The investigation should include efforts to secure information in the
• 27:30
  Speaker 1: possession of the prosecution and law enforcement authorities. The duty
• 27:35
  Speaker 1: to investigate exists regardless of the accused's admission or statements
• 27:40
  Speaker 1: to the defense counsel of facts constituting guilt of the
• 27:44
  Speaker 1: accused's stated desire to plead guilty. ABA Standard for Criminal
• 27:49
  Speaker 1: Justice Defense Function Standard 4-1.1 3D ED 1993 Relatedly, the
• 27:57
  Speaker 1: ABA has promulgated a set of criminal justice standards on
• 28:02
  Speaker 1: DNA evidence in 2007 that requires the pretrial production of
• 28:08
  Speaker 1: DNA discovery. Standard 4.1 Disclosure provides a. The prosecutor should
• 28:14
  Speaker 1: be required within a specified and reasonable time prior to
• 28:18
  Speaker 1: trial to make available to the defense the following information
• 28:22
  Speaker 1: and material relating to DNA evidence. 1. laboratory reports as
• 28:27
  Speaker 1: provided in Standard 3.3. 2. If different from or not
• 28:33
  Speaker 1: contained in any laboratory report, a written description of the
• 28:37
  Speaker 1: substance of the proposed testimony of each expert, the expert's opinion,
• 28:42
  Speaker 1: and the underlying basis of that opinion. 3. The laboratory
• 28:47
  Speaker 1: case file and case notes. 4. A curriculum vitae for
• 28:53
  Speaker 1: each testifying expert. and for each person involved in the testing. 5.
• 28:58
  Speaker 1: The written material specified in Standard 3.1a. 6. Reports of
• 29:03
  Speaker 1: all proficiency examinations of each testifying expert and each person
• 29:08
  Speaker 1: involved in the testing, with further information on proficiency testing
• 29:13
  Speaker 1: discoverable on a showing of particularized need. 7. The chain
• 29:19
  Speaker 1: of custody document specified in Standard 2.5. 8. all raw
• 29:24
  Speaker 1: electronic data produced during testing. 9. Reports of laboratory contamination
• 29:30
  Speaker 1: and other laboratory problems affecting testing procedures or results relevant
• 29:35
  Speaker 1: to the evaluation of the procedures and test results obtained.
• 29:40
  Speaker 1: in the case and corrective actions taken in response. 10.
• 29:45
  Speaker 1: A list of collected items that there is a reason
• 29:48
  Speaker 1: to believe contained DNA evidence but have been destroyed or
• 29:52
  Speaker 1: lost or have otherwise become unavailable. 11. material or information
• 29:59
  Speaker 1: within the prosecutor's possession or control, including laboratory information or
• 30:04
  Speaker 1: material that would tend to negate the guilt of the
• 30:08
  Speaker 1: defendant or reduce the punishment of the defendant. 7. The
• 30:13
  Speaker 1: minimum practice standard of a competent defense counsel to obtain
• 30:17
  Speaker 1: and review discovery applies to forensic genetic genealogy, DNA, analysis
• 30:23
  Speaker 1: and search, and investigative genetic genealogy. FGGS-IGG involves testing biological
• 30:30
  Speaker 1: identification evidence from the crime scene or a targeted person
• 30:34
  Speaker 1: to develop a genomic DNA profile and searching the results
• 30:38
  Speaker 1: in private ancestry databases. The laboratory ranks the search results
• 30:43
  Speaker 1: by Centimorgan. A centimorgan is a unit of genetic measurement
• 30:49
  Speaker 1: that describes how much DNA and length of specific segments
• 30:53
  Speaker 1: of DNA are shared between a GED DNA profile in
• 30:57
  Speaker 1: the database and the GED DNA profile from crime scene
• 31:02
  Speaker 1: evidence or a targeted person of interest. FGG-IGG also involves
• 31:09
  Speaker 1: a genealogical investigation by law enforcement based on the ranked
• 31:13
  Speaker 1: matches found in the database searches to clarify the family
• 31:17
  Speaker 1: tree of interest and potentially identify the branch populated by
• 31:22
  Speaker 1: the source of the crime scene DNA evidence. 8. The
• 31:28
  Speaker 1: scope of discovery provided by the prosecution in the FGGS-IgG
• 31:33
  Speaker 1: cases I have worked on included kinship assessments from searches
• 31:38
  Speaker 1: of genealogy databases and law enforcement genealogical investigative findings to
• 31:44
  Speaker 1: clarify the a family tree, and further target persons of interest.
• 31:49
  Speaker 1: The discovery included information about law enforcement's genealogical investigations of
• 31:55
  Speaker 1: the top-ranked matches and persons of interest targeted for DNA
• 31:59
  Speaker 1: sampling or further investigation. The discovery also included sample description information,
• 32:06
  Speaker 1: chain of custody information, amplification, fragmentation, and precipitation details, hybridization information,
• 32:14
  Speaker 1: DNA input levels, and consumption of sample details. The prosecution
• 32:19
  Speaker 1: authorities provided the discovery upon my request. 9. In general,
• 32:26
  Speaker 1: the FGGS-IGG discovery is essential to the defense because, among
• 32:31
  Speaker 1: other reasons, the discovery, A, includes the results of DNA
• 32:36
  Speaker 1: testing of crime scene evidence, B, provides match information from
• 32:41
  Speaker 1: database searches and potential suspect information, From law enforcement's. Genealogical investigation. C.
• 32:48
  Speaker 1: May identify the branch. Or branches. Of the family tree
• 32:52
  Speaker 1: of interest. That are consistent. With the amount of DNA shared.
• 32:56
  Speaker 1: Between the source of the crime seen. DNA. And the
• 32:59
  Speaker 1: known person. Or persons. In the database. D. Identifies the public.
• 33:04
  Speaker 1: And private DNA databases. Searched by law enforcement. And the
• 33:08
  Speaker 1: ranking of results. E. Reveals the number of third parties.
• 33:13
  Speaker 1: who law enforcement may have targeted for covert, consensual, or
• 33:18
  Speaker 1: warrant-based DNA collection. F. May identify the number of putative
• 33:23
  Speaker 1: perpetrators identified through FGGS-IGG. G. Reveal whether law enforcement collected
• 33:31
  Speaker 1: DNA samples from every putative perpetrator, H may describe the
• 33:36
  Speaker 1: manner in which law enforcement collected DNA samples from targeted individuals,
• 33:42
  Speaker 1: and I is necessary for the defense to be able
• 33:45
  Speaker 1: to identify and consult with an expert. Therefore, under the
• 33:50
  Speaker 1: minimum standards of practice for defense counsel investigating forensic DNA evidence,
• 33:56
  Speaker 1: it is crucial for a reasonably competent attorney to obtain
• 34:00
  Speaker 1: the FGGS-IGG discovery. 10. I reserve the opportunity to update
• 34:05
  Speaker 1: my opinions based on new information. I affirm under the
• 34:10
  Speaker 1: penalty of perjury that the foregoing is true and correct
• 34:13
  Speaker 1: to the best of my knowledge, information, and belief. This
• 34:18
  Speaker 1: was signed by Stephen B. Mercer, and it was dated
• 34:21
  Speaker 1: on the 22nd of January of 2023. And there's a
• 34:26
  Speaker 1: whole list of his accomplishments and his schooling, but we're
• 34:29
  Speaker 1: not going to bother with those. Click on the link
• 34:31
  Speaker 1: if you're interested in that. All right, folks, that's going
• 34:34
  Speaker 1: to do it for this one. All of the information
• 34:36
  Speaker 1: that goes with the episode can be found in the
• 34:39
  Speaker 1: description box. And remember, if you're tired of those commercials,
• 34:43
  Speaker 1: you can sign up on Patreon starting the 1st of
• 34:46
  Speaker 1: July 2021. for commercial-free episodes. All right, folks, I'll catch
• 34:51
  Speaker 1: you all in a little bit. What's up, everyone, and
• 34:54
  Speaker 1: welcome back to the program. In this episode, we're headed
• 34:57
  Speaker 1: right back out to Moscow, and we're going to take
• 35:00
  Speaker 1: a look at another affidavit by Cy Ray, this one
• 35:04
  Speaker 1: having to do with the AT & T timing data.
• 35:08
  Speaker 1: Case number, CR01-24-31665. State of Idaho Plaintiff vs. Brian C. Koberger,
• 35:17
  Speaker 1: the Defendant. Affidavit of Cy Ray. AT & T Timing Data.
• 35:23
  Speaker 1: State of Arizona, County of Maricopa. 1. I am an
• 35:28
  Speaker 1: adult over the age of 18 and I have personal
• 35:30
  Speaker 1: knowledge of the facts set forth in this affidavit. 2.
• 35:34
  Speaker 1: I have been working in the field of call detail
• 35:36
  Speaker 1: records analysis for over 25 years. I became a certified
• 35:40
  Speaker 1: police officer in the state of Arizona in 1996 and
• 35:44
  Speaker 1: I worked with my first set of AT & T
• 35:46
  Speaker 1: records in 1997. I spent nearly 20 years in law
• 35:50
  Speaker 1: enforcement in the primary role of a detective. I have
• 35:53
  Speaker 1: worked hundreds of death investigations and consulted on over a
• 35:57
  Speaker 1: thousand homicide cases in my career. In my role as
• 36:00
  Speaker 1: a detective, I gained extensive experience utilizing call detail records
• 36:04
  Speaker 1: and exploiting cellular networks for investigative-related purposes. In 2014, I
• 36:09
  Speaker 1: retired from law enforcement and started a business called ZX
• 36:14
  Speaker 1: that created software for law enforcement to map and analyze
• 36:18
  Speaker 1: call detail records. As part of that business, we maintain
• 36:21
  Speaker 1: software that supported every known call detail record that's provided
• 36:26
  Speaker 1: to law enforcement in the United States. To date, the
• 36:29
  Speaker 1: system has analyzed over 3 billion calls from call detail
• 36:32
  Speaker 1: records provided by cellular phone companies in the United States.
• 36:37
  Speaker 1: In 2021, LexisNexis purchased ZX. and to date is still
• 36:41
  Speaker 1: using and selling the software I created. As a result
• 36:45
  Speaker 1: of this experience, I have worked directly with engineers at
• 36:48
  Speaker 1: the cellular phone companies for over two decades, and I
• 36:52
  Speaker 1: am intimately familiar with the type of data that they
• 36:54
  Speaker 1: maintain in the normal course of business and provide to
• 36:57
  Speaker 1: law enforcement through legal demand process. In addition to my
• 37:02
  Speaker 1: law enforcement experience, I have instructed classes on utilizing cellular
• 37:06
  Speaker 1: records in criminal investigations for nearly 20 years. I have
• 37:10
  Speaker 1: had over 30,000 law enforcement officers attend these courses and
• 37:14
  Speaker 1: or presentations on this subject matter. In 2014, I created
• 37:19
  Speaker 1: the first geolocation cellular investigation subject matter expert course in
• 37:23
  Speaker 1: this field, offered to state and local law enforcement officers.
• 37:27
  Speaker 1: As a result of this work, I have established well-known
• 37:30
  Speaker 1: and used best practices within the discipline of call detail
• 37:34
  Speaker 1: record analysis. Over 1,000 law enforcement agencies have attended and
• 37:38
  Speaker 1: my courses on the subject matter of cellular record analysis
• 37:42
  Speaker 1: to include the FBI, ATF, US Marshals, DEA, and DHS.
• 37:47
  Speaker 1: Through my work in this discipline, I am regularly consulted
• 37:50
  Speaker 1: by the prosecution on investigations around the world. As a
• 37:54
  Speaker 1: recognized subject matter expert in the field, I have testified
• 37:57
  Speaker 1: on the matter more than 100 times throughout the United
• 38:00
  Speaker 1: States in both federal and state courts. Apart from this case,
• 38:04
  Speaker 1: all my testimony in this field has been on behalf
• 38:07
  Speaker 1: of the prosecution, and it's only the rare cases and
• 38:10
  Speaker 1: circumstances I have ever considered working on the side of
• 38:14
  Speaker 1: the defense. I have worked extensively with timing advance data
• 38:18
  Speaker 1: from the cellular phone network providers over the past 15 years.
• 38:22
  Speaker 1: I've testified to the use of timing advance data numerous times.
• 38:26
  Speaker 1: I've created and taught hundreds of classes on this subject
• 38:29
  Speaker 1: matter to law enforcement. I am extremely familiar with the
• 38:31
  Speaker 1: type of timing advance records available from U.S. cellular providers,
• 38:36
  Speaker 1: their retention periods, and the legal process to obtain those records.
• 38:39
  Speaker 1: Timing advance. Timing advance records are maintained by cellular network
• 38:44
  Speaker 1: providers that provide in-time measurement. This time measurement refers to
• 38:48
  Speaker 1: the amount of time it takes a radio signal to
• 38:50
  Speaker 1: travel from a cell site to a mobile device and
• 38:53
  Speaker 1: back to the cell site. Given the signal travels at
• 38:56
  Speaker 1: a known constant speed of light, it's possible to use
• 39:00
  Speaker 1: the measurement to determine the distance the mobile device is
• 39:03
  Speaker 1: from a known cell site. When multiple cell sites record
• 39:06
  Speaker 1: timing advanced data in short periods of time, it's possible
• 39:10
  Speaker 1: to use trilateration to determine the location of a mobile device.
• 39:15
  Speaker 1: The use of timing advanced data in this manner is
• 39:17
  Speaker 1: one of the most accurate ways for law enforcement to
• 39:20
  Speaker 1: locate a mobile device. Given these records are available in
• 39:24
  Speaker 1: a historical context, it's possible to conduct an analysis of
• 39:27
  Speaker 1: timing advance data to pinpoint historical locations of a mobile
• 39:31
  Speaker 1: device at a given date and time. It's also possible
• 39:34
  Speaker 1: to determine routes of travel, stagnation, and when a mobile
• 39:37
  Speaker 1: device is powered on and off. As a result of
• 39:40
  Speaker 1: its accuracy, requesting time in advance data has become a
• 39:44
  Speaker 1: standard practice for all law enforcement in the United States.
• 39:48
  Speaker 1: and is regularly requested through legal process relating to criminal investigations.
• 39:54
  Speaker 1: AT & T Timing Advance In August of 2021, I
• 39:57
  Speaker 1: was approached by an FBI special agent to assist in
• 40:00
  Speaker 1: analyzing a type of record set identified as AT &
• 40:03
  Speaker 1: T Timing Advance records, and it was the first time
• 40:07
  Speaker 1: I was made aware of this type of data from
• 40:09
  Speaker 1: AT & T. Upon request, I can provide the date, time, location,
• 40:13
  Speaker 1: and FBI agent I assisted with the record set. As
• 40:18
  Speaker 1: of the year 2021, AT & T had not officially
• 40:21
  Speaker 1: released a timing advance report to law enforcement, therefore the
• 40:24
  Speaker 1: ZX software program did not yet support AT & T
• 40:28
  Speaker 1: timing advance records. As a result of this interaction with
• 40:31
  Speaker 1: the FBI, I obtained a copy of the timing advance
• 40:34
  Speaker 1: report from the special agent and sent it to our
• 40:38
  Speaker 1: software engineers to write code within the ZX system to
• 40:42
  Speaker 1: support future uploads of this timing advance report format. The
• 40:46
  Speaker 1: next day I was informed by Special Agent and the
• 40:48
  Speaker 1: AT & T Timing Advance Report was not supposed to
• 40:51
  Speaker 1: be released viewed outside of the FBI and that individual
• 40:54
  Speaker 1: requested I return the report and not have any software
• 40:57
  Speaker 1: developed to support the data that they had shown me.
• 41:00
  Speaker 1: I did return the report, however, due to the interaction
• 41:03
  Speaker 1: explained here. There is a paper trail documenting the facts
• 41:06
  Speaker 1: of this interaction. I have first-hand knowledge that AT &
• 41:09
  Speaker 1: T was providing the FBI with Timing Advance Reports prior
• 41:13
  Speaker 1: to August of 2021. AT & T Legal Demands. During
• 41:18
  Speaker 1: my career working with call detail records from every cellular
• 41:22
  Speaker 1: provider in the United States, I have been involved with
• 41:25
  Speaker 1: thousands of cases in which call detail records are obtained
• 41:28
  Speaker 1: from these companies. Leading the way in the establishment of
• 41:31
  Speaker 1: best practices within this field of investigation, I wrote and
• 41:36
  Speaker 1: provided custom search warrants for every provider and distributed them
• 41:40
  Speaker 1: to thousands of law enforcement officers in the United States.
• 41:44
  Speaker 1: assisting them in the legal process of obtaining the vast
• 41:47
  Speaker 1: and ever-growing amount of data sets offered by cellular providers.
• 41:52
  Speaker 1: I have worked with AT & T Global Legal Demand
• 41:55
  Speaker 1: Center for over 15 years. I have first-hand knowledge that
• 41:58
  Speaker 1: the AT & T GLDC is one way, not the
• 42:02
  Speaker 1: only way for law enforcement to obtain call detail records
• 42:05
  Speaker 1: from AT & T. I have first-hand knowledge that there
• 42:09
  Speaker 1: is another way to obtain call detail records from AT
• 42:11
  Speaker 1: & T, and without going through GLDC. Over the course
• 42:16
  Speaker 1: of many years, AT & T has had several different
• 42:19
  Speaker 1: programs and partnerships with federal law enforcement, primarily the FBI,
• 42:24
  Speaker 1: that allowed them to call detail records to be disseminated
• 42:27
  Speaker 1: to the FBI without going through the standard GLDC process.
• 42:32
  Speaker 1: The first AT & T timing report I was presented
• 42:35
  Speaker 1: and had a chance to review and become familiar with
• 42:37
  Speaker 1: in August of 2021 was obtained from AT & T
• 42:40
  Speaker 1: through one of these programs, not through the GLDC. I
• 42:44
  Speaker 1: have been involved in numerous investigations where AT & T
• 42:47
  Speaker 1: call detail records were obtained through these AT & T
• 42:50
  Speaker 1: programs outside of the GLDC. I have first-hand knowledge and
• 42:54
  Speaker 1: experience in working with individuals at AT & T associated
• 42:59
  Speaker 1: with other programs. One such individual is Boyd Jackson. Mr.
• 43:03
  Speaker 1: Jackson is a program director at AT & T who
• 43:06
  Speaker 1: manages many of the programs I'm referencing. Mr. Jackson is
• 43:09
  Speaker 1: the primary contact for the FBI when requesting records outside
• 43:14
  Speaker 1: of the standard GLDC process. GLDC Disseminating Timing Advance Reports
• 43:21
  Speaker 1: The state is correct in their claim that AT &
• 43:23
  Speaker 1: T GLDC did not provide law enforcement with AT &
• 43:26
  Speaker 1: T timing advance reports until May of 2023. As a
• 43:30
  Speaker 1: matter of fact, in May of 2023, the working group
• 43:34
  Speaker 1: known as GLDC had only begun their storage of timing
• 43:37
  Speaker 1: advance records. The first official release of AT & T
• 43:41
  Speaker 1: timing advance records and data was not provided to law
• 43:44
  Speaker 1: enforcement until June 15th of 2023 by GLDC. AT &
• 43:48
  Speaker 1: T Timing Advance Records in the State's Possession During this investigation,
• 43:54
  Speaker 1: law enforcement obtained the following AT & T timing advance data. A.
• 44:00
  Speaker 1: Two of the victims had AT & T phones. Law
• 44:02
  Speaker 1: enforcement obtained AT & T timing data on both of
• 44:05
  Speaker 1: their phones. B. Law enforcement developed an early investigative lead
• 44:09
  Speaker 1: in this case. That person had an AT & T phone.
• 44:12
  Speaker 1: At the time of the crime, law enforcement obtained his
• 44:15
  Speaker 1: AT & T timing advance data. Law enforcement also requested
• 44:19
  Speaker 1: a tower dump consisting of AT & T timing advance data.
• 44:23
  Speaker 1: This request involved AT & T providing all of the
• 44:26
  Speaker 1: connections between two specific cell sites in Moscow during a
• 44:30
  Speaker 1: two-hour period. The data produced was AT & T timing
• 44:34
  Speaker 1: advance data. In all, there were over 3,800 AT &
• 44:37
  Speaker 1: T mobile phones identified in the timing advance tower dump data. 2.
• 44:46
  Speaker 1: The AT & T timing advance data was obtained by
• 44:49
  Speaker 1: the FBI using an internal source at AT & T. Mr.
• 44:53
  Speaker 1: Boy Jackson, who is not associated with GLDC Working Group,
• 44:57
  Speaker 1: GLDC was not used to obtain this data. A forensic
• 45:01
  Speaker 1: examination of the AT & T timing advance records in
• 45:04
  Speaker 1: the state's possession indicates show Mr. Jackson's association with the reports.
• 45:09
  Speaker 1: There is a work product in the state's possession created
• 45:12
  Speaker 1: by the FBI showing the AT & T timing advance
• 45:15
  Speaker 1: data was not only obtained but regularly referenced and used
• 45:19
  Speaker 1: in the course of this investigation. Its existence is well
• 45:22
  Speaker 1: known to the investigators and prosecutors. Chain of custody. The
• 45:27
  Speaker 1: state has provided a certificate of authenticity to defense in
• 45:30
  Speaker 1: relation to the timing advance records described above. The COA
• 45:34
  Speaker 1: was created in in April of 2024 and issued by
• 45:37
  Speaker 1: the director of GLDC, Stephen Gordon. I have previously worked
• 45:41
  Speaker 1: with and am familiar with Mr. Gordon. The COA specifically states,
• 45:45
  Speaker 1: I am qualified to authenticate the records attached here too
• 45:49
  Speaker 1: because I'm familiar with how the records were created, managed, stored,
• 45:53
  Speaker 1: and retrieved. I have personal knowledge that in the event Mr.
• 45:56
  Speaker 1: Gordon was required to testify, he would clarify that prior
• 46:00
  Speaker 1: to May of 2023, neither he nor AT & T
• 46:03
  Speaker 1: GLDC Working Group was involved with AT & T Timing
• 46:07
  Speaker 1: Advance Records. Additionally, there is forensic evidence contained within the
• 46:11
  Speaker 1: record that indicate they were not produced by AT &
• 46:14
  Speaker 1: T GLDC, nor were they produced in the year 2024.
• 46:19
  Speaker 1: In reviewing this data, I contacted and communicated with Mr.
• 46:22
  Speaker 1: Gordon to clarify the chain of custody related to these records. Mr. Gordon,
• 46:27
  Speaker 1: an AT & T legal representee, informed me that Mr.
• 46:31
  Speaker 1: Gordon would not be the individual to certify these records
• 46:34
  Speaker 1: if required to do so, despite issuing the COA. In
• 46:38
  Speaker 1: my review of this information, there is evidence to suggest
• 46:41
  Speaker 1: the chain of custody involving these records and COA were
• 46:45
  Speaker 1: produced well outside of AT & T' s normal practice. There
• 46:49
  Speaker 1: is missing information and data associated with this request. The
• 46:52
  Speaker 1: prosecution's prior claim that the AT & T timing advance
• 46:55
  Speaker 1: data did not exist in 2022 further complicates this issue.
• 47:00
  Speaker 1: It is my expert opinion that any testimony proffered on
• 47:04
  Speaker 1: behalf of the FBI or AT & T on this
• 47:06
  Speaker 1: matter would clearly reveal these issues. Evidence in direct contradiction
• 47:11
  Speaker 1: to the state's motion. In my review of this investigation,
• 47:15
  Speaker 1: I have read numerous emails sent and received by law
• 47:17
  Speaker 1: enforcement pertaining to their investigation. One such email dated 11-15-2022
• 47:21
  Speaker 1: was sent to Prosecutor Ashley Jennings at her Latah County
• 47:27
  Speaker 1: government email address. This email is from Moscow Detective Lawrence Mowry.
• 47:32
  Speaker 1: The email is informing Ms. Jennings of Detective Mowry's recent
• 47:36
  Speaker 1: contact with FBI Special Agent Balance. Special Agent Balance informed
• 47:40
  Speaker 1: Detective Mowry that AT & T can provide timing advance
• 47:44
  Speaker 1: data and to make sure it's listed in the search warrant.
• 47:47
  Speaker 1: Detective Mowry is specifically asking Prosecutor Jennings to make sure
• 47:52
  Speaker 1: the AT & T timing data is listed in the warrant.
• 47:55
  Speaker 1: prior to the report ever being distributed by the working
• 47:59
  Speaker 1: group known as GLDC. Ms. Jennings did respond to Detective
• 48:03
  Speaker 1: Mowry's email inquiring on the specific verbiage needed to obtain
• 48:07
  Speaker 1: AT & T timing advance. This email abundantly clear evidence
• 48:11
  Speaker 1: that Ms. Jennings was not only aware of the existence
• 48:14
  Speaker 1: of the AT & T timing advance in 2022, but
• 48:18
  Speaker 1: also shows her intention to obtain it through legal process
• 48:21
  Speaker 1: from AT & T. This email communication with Prosecutor Ashley
• 48:26
  Speaker 1: Jennings is the same Prosecutor Ashley Jennings who filed this
• 48:29
  Speaker 1: current and contradictory motion, stating AT & T did not
• 48:33
  Speaker 1: produce timing advance records in 2022. There is clear and
• 48:37
  Speaker 1: convincing evidence that not only was the FBI able to
• 48:40
  Speaker 1: obtain AT & T timing advance records in 2022, but
• 48:45
  Speaker 1: they did so with the knowledge of the prosecutors involved
• 48:47
  Speaker 1: in the case. Missing AT & T Timing Advance In
• 48:52
  Speaker 1: my review of this investigation, based on my training and experience,
• 48:56
  Speaker 1: it is incredibly unusual that the defendant AT & T
• 48:59
  Speaker 1: timing advance records were not obtained by the FBI. The
• 49:02
  Speaker 1: FBI demonstrated their ability to obtain AT & T timing
• 49:06
  Speaker 1: advance in November of 2022 by obtaining AT & T
• 49:10
  Speaker 1: timing advance records on over 3,800 mobile devices, none of
• 49:14
  Speaker 1: them being the defendants. When it comes to location data
• 49:18
  Speaker 1: from AT & T, timing advance data can be some
• 49:20
  Speaker 1: of the most accurate data available. Additionally, it contains connections
• 49:24
  Speaker 1: to the network other than the typical voice, text, or
• 49:27
  Speaker 1: data connections. This allows law enforcement not only to see
• 49:31
  Speaker 1: more data, but more accurate data. Anytime a defendant's locations
• 49:35
  Speaker 1: are in question, a timing advance report would be asked
• 49:38
  Speaker 1: for As standard operating procedure, Moscow Police Department, by way
• 49:43
  Speaker 1: of the FBI and with the knowledge of prosecutors, demonstrated
• 49:46
  Speaker 1: their awareness of this standard procedure when they obtained AT
• 49:49
  Speaker 1: & T timing advance data on over 3,800 mobile devices.
• 49:54
  Speaker 1: When detectives and prosecutors requested and served two different search
• 49:57
  Speaker 1: warrants to AT & T on the defendant's AT &
• 49:59
  Speaker 1: T account, they requested the exact same timing advance data
• 50:04
  Speaker 1: they previously did when they obtained the timing advance data
• 50:06
  Speaker 1: from AT & T on over 3,800 mobile devices. They
• 50:11
  Speaker 1: also maintain the same process in utilizing the FBI to
• 50:14
  Speaker 1: serve the legal demands on AT & T. There is
• 50:17
  Speaker 1: no difference in the verbiage, legal process, or individuals that
• 50:20
  Speaker 1: produced AT & T timing advance data on 3,800 mobile
• 50:24
  Speaker 1: devices and the request for the defendant's AT & T
• 50:28
  Speaker 1: timing advance data that allegedly yielded nothing. Additionally, on December 23, 2022,
• 50:33
  Speaker 1: the FBI sent a communication directly to AT & T
• 50:38
  Speaker 1: specifically detailing their request for the defendant's AT & T
• 50:41
  Speaker 1: timing advance records. There's no reason to believe AT &
• 50:44
  Speaker 1: T would not respond to this request. It is my
• 50:48
  Speaker 1: expert opinion AT & T timing advance data did exist
• 50:52
  Speaker 1: for the defendant's AT & T mobile device in 2022
• 50:56
  Speaker 1: and it was requested from AT & T by the
• 50:58
  Speaker 1: investigators involved in this case. The investigators previously demonstrated their
• 51:04
  Speaker 1: ability to obtain AT & T timing advanced data in 2022.
• 51:08
  Speaker 1: Failure to produce the defendant's AT & T timing advanced
• 51:12
  Speaker 1: data is either a gross deviation from standard practice or
• 51:16
  Speaker 1: intentionally withheld from release and discovery. Conclusion. It is my
• 51:20
  Speaker 1: expert opinion upon reviewing all the evidence that has been
• 51:23
  Speaker 1: disclosed by the state that A. AT & T timing
• 51:26
  Speaker 1: advanced data was available on the defendant's phone in 2022. B.
• 51:31
  Speaker 1: There is overwhelming evidence showing this data obtaining and using
• 51:34
  Speaker 1: AT & T timing advanced data in the course of
• 51:37
  Speaker 1: this investigation in 2022 and over 3,800 AT & T
• 51:43
  Speaker 1: mobile devices other than the defendants. There is no doubt
• 51:46
  Speaker 1: the author of this current motion, Prosecutor Ashley Jennings, knew
• 51:50
  Speaker 1: or should have known AT & T timing advanced data
• 51:53
  Speaker 1: did exist in 2022. She was directly involved in the
• 51:57
  Speaker 1: legal process obtaining it and was aware of work product
• 52:00
  Speaker 1: created from it. to further the investigation. The current motion
• 52:04
  Speaker 1: is a deliberate misrepresentation of the court to further conceal
• 52:08
  Speaker 1: false statements used to obtain probable cause against the defendant
• 52:12
  Speaker 1: and conceal exculpatory evidence from discovery. 2. I'm prepared to
• 52:16
  Speaker 1: provide witness testimony and relevant exhibits that support all my
• 52:20
  Speaker 1: opinions contained in this affidavit. It's my belief this evidence
• 52:23
  Speaker 1: is beyond clear and convincing and will be supported by
• 52:27
  Speaker 1: any competent expert in this field who reviews all the data.
• 52:30
  Speaker 1: This is not a battle of the experts. The evidence
• 52:33
  Speaker 1: supporting the opinions in this affidavit is overwhelming. In my
• 52:37
  Speaker 1: nearly 30 years of working with and for prosecutors all
• 52:40
  Speaker 1: over the United States, I have never witnessed such a
• 52:43
  Speaker 1: deliberate attempt by prosecutors to mislead the court on evidence
• 52:47
  Speaker 1: in such plain sight. Anyone making such a claim would
• 52:50
  Speaker 1: have to believe the court is incapable of reviewing physical
• 52:53
  Speaker 1: evidence in possession of the state and defense. It rises
• 52:58
  Speaker 1: to a level beyond a simple miscommunication or oversight and
• 53:02
  Speaker 1: is clear and intentional misrepresentation in the hopes to conceal
• 53:06
  Speaker 1: a much larger issue. I respectfully request the court give
• 53:09
  Speaker 1: the affidavit the due attention it deserves and explore these
• 53:12
  Speaker 1: issues further. This was dated March 25th of 2025 and
• 53:17
  Speaker 1: it was signed by Cy Ray. All of the information
• 53:20
  Speaker 1: that goes with this episode can be found in the
• 53:23
  Speaker 1: description box.