4 Univ of Idaho Students Murdered, Bryan Kohberger Arrested, Moscow, Nov 2022 #84

[I'm Nobody]

Updated Attorney list:

Prosecution team:
William Wofford Thompson,Jr Prosecutor
Ashley Jennings Senior Deputy Prosecutor
Bradley Rudley Chief Civil Deputy Prosecutor
Jeffery D. Nye Deputy Attorney General
Ingrid C. Batey Deputy Attorney General

Defense Team:
Anne C. Taylor Chief Public Defender
Jay W. Logsdon Chief Deputy of Litigation
Elisa G. Massoth Criminal Defense Attorney

Goncalves Family Attorney
Shanon L. Gray

Three Unknowns from Zoom hearing (gag order):
Counsel and Co counsel for ?
Counsel for ?

BF
Kelli Anne Viloria

Press Attorney:
Wendy J. Olson
Cory M. Carone

Did I miss anyone?
MOO

Thank you @Nila Aella Great list.
What about BK's part time consulting attorney?
Bicka Barlow DNA attorney
She might be "consulting" long-term through the whole trial. JMO

 

[AussieIan]

It's a moot point for me. Whatever the officers did in their training, if they were incompetent, they would not have passed and been certified. It's no different than medical school, imo. Incompetents are booted out of the programs

When was the last time you did some of this training? That's the opposite of my experience these days. More incompetents are passing than ever before.

So many departments are understaffed and desperate. If you answer questions wrong trainers will walk you to the answer. Trainers hold your hand until you get it right.

 

[Dexter12]

"Suppression of evidence" is a term used in the United States legal system to describe the lawful or unlawful act of preventing evidence from being shown in a trial. This could happen for several reasons.
Wikipedia

MOO The conflicting accounts of surviving roommates will be challenged as suppression.

Conflcting accounts of surviving roommates? Please provide a source and link.

 

[jepop]

In the Judges order:

At the outset of the hearing, the parties informed the Court that they had reached agreements on all issues except Request 160

Went back to look at the requests they reached agreement on:

Request No. 43 All body cam and dash cam footage from officers involved in the search and arrest of Bryan Kohberger in Pennsylvania.

Reguest N0. 49 All lab testing, including photographs and color diagrams and bench notes including, but not limited to: l. Copies of lab reports detailing the forensic evidence collection and analysis of items recovered at Bryan Kohberger’s parents’ home, trash cans and other receptacles, and Bryan Kohberger’s Hyundai Elantra.

Second part of Request N0. 49 All lab testing, including photographs and color diagrams and bench notes including, but not limited to: ISP and FBI Forensic Lab reports including, but not limited to, Lab reports 11 and 25

Request No. 119 All notes recordings from all Officers from Moscow Police Department As of May 4, 2023 Counsel for Mr. Kohberger has not received recordings and notes from the interrogation of Mr. Kohberger by MPD Detective Payne

Request No. 115 All police reports, audio/video evidence, and any recorded statements related to Bryan Kohberger’s arrest and incarceration in Pennsylvania.

Reguest No. 161 All reports, notes, recordings and photos...
This one was the reported redacted event. MOO

https://coi.isc.idaho.gov/docs/case/CR29-22-2805/050423%20Motion%20to%20Compel%20Discovery.pdf

In the original Moton /to Compel of 4th May, the two requests I bolded in your post were qualified by the statement "..based on information and belief these reports contain exculpatory information", so I'm supposing the D has what they believe is exculpatory at this point or they have since discovered that they were mistaken. Looking forward to hearing more about those details if they come to anything prior to trial. Moo

 

[Boxer]

Conflcting accounts of surviving roommates? Please provide a source and link.

Surviving roommate of slain University of Idaho students fights subpoena to testify in Kohberger's defense

The surviving roommate's attorney says she doesn't have any evidence that would be useful to the suspect's defense.

www.krem.com

 

[jepop]

Also, it's since been posted the ID was on the search warrant returned for the PA residence.

Ah that's right, how could I forget that it was NN that mixed up the return on the elantra with the return on the PA residence - which includes the item "ID cards inside glove inside box". Speculating - but perhaps NN's AI (if they use it) read that as ID cards inside a glove box, or could just be NN's 'investigative reporters' didn't read the ROIs with any particular care and just decided the IDs were found in a glove box of a car. Who knows! Moo

Due to the handwriting on the PA residence ROI, there were a couple of other interpretations of the item discussed here including:

"10 cards inside glove inside box"; and
"10 curls inside glove inside box" - this latter being an early guess by some MSM outlet or other.

The consensus was "10" is actually "ID" which makes the most sense to me. Moo

 

[Nova]

It's a moot point for me. Whatever the officers did in their training, if they were incompetent, they would not have passed and been certified. It's no different than medical school, imo. Incompetents are booted out of the programs. So, yes, I agree it is a fishing exhibition by the Defense. I think the only result is that after BK is convicted, he will have no basis to accuse his attorney of ineffective counsel.

JMO

I'm sorry, but I don't think that's true of doctors and we KNOW it isn't true that all incompetent police officers are weeded out. The thousands of innocent people in prisons argue otherwise.

Let me just add that I think most mistakes by LE are inadvertent, though there have been a number of famous cases of police corruption. (See Tula, TX.)

 

[Seattle1]

After reading the order, I wondered if officer one (mentioned by AT during the hearing) was the dog handler? MOO

The only thing about officers I recall was this notice of Brady disclosure which could be anything, related or not related to the case. Under protective order. 3/27/23

COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney’s Office, and respectfully gives notice to Court and Counsel that the State has become aware of potential Brady/Giglio material related to one of the officers involved in the above-referenced case. That material, in the form Of confidential internal affairs investigation, is hereby submitted in camera to the Court.

https://coi.isc.idaho.gov/docs/case/CR29-22-2805/032723%20Notice%20of%20Brady%20Disclosure%20and%20Request%20for%20Protective%20Order.pdf

edit:spelling

Thank you @Nila Aella for linking the Prosecution's Notice of Brady/Giglio Disclosure dated March 27 as I believe this notice helps start the timeline of where the defense will begin to build its foundation for contesting the grand jury Indictment issued on May 16.

First and most important, the defense has not waived a Speedy Trial.

Taking note the defense filed its Initial Motion for Discovery on Jan 10, First Supplemental Motion for Discovery on Feb 3 (i.e., beyond State's EXH-A), and the Second Supplemental Motion on March 23 (beyond State's EXH-B), the Court's Protective Order - Brady/Giglio on March 28, Third Supplemental Motion on May 3, and Defense Motion to Compel Discovery on May 4-- including but not limited to defense's request from its Second Supplemental Motion for Request No. 160 - Training Records of ... (specific officers), and where each Defense Motion and Order predates the Grand Jury Indictment issued on May 16.

It follows that the defense would have good cause to suspect the State had exculpatory evidence per the Brady Notice of March 27, and confirmation upon the Court's Protection Order on March 28, yet still hadn't received any such evidence from the prosecution including the training records of certain officers requested by its Second Supplemental Motion, when all the while, a grand jury was most likely convened.

BK's defense team further argues that the audio recordings and partial transcripts received by the grand jury for review do not include "exculpatory evidence" that they are certain exists and would clear him of all charges.

While I don't believe there is anything here to clear the defendant of all charges, I do think the defense will rely heavily on challenging the Indictment on technical merit.

"A grand jury was empaneled at a time when the small community of Moscow, Idaho had been exposed to 6 months of intense local, national, and international media coverage," documents submitted by Kohberger's defense read. "Because the state has provided extensive discovery, Mr. Kohberger knows that exculpatory evidence exists. Whether a fair and impartial panel of grand jurors was assembled amidst intense media coverage is a significant question the Defense must evaluate."

[..]

"When you have a grand jury, in most jurisdictions [...] you have to give the defense the opportunity to present exculpatory evidence, if you will, once you know the grand jury is happening," he said.

"The challenge to exculpatory evidence, what I think the argument—they're laying the groundwork to the argument—is that 'Hey, we know there's exculpatory evidence, we didn't get a chance to present that, that is our right, even though it's a secret proceeding."

So the questions that beg being presented for the subject of the defense fighting the Indictment is why didn't the prosecutor give the defense Notice of the grand jury to enable presenting any exculpatory evidence?

And why did the prosecution delay providing the Training Records of three officers who the defense successfully presented played a critical role in investigating the case pursuant to Idaho Criminal Rule 16?

According to the Order granting the Defense Motion to Compel Discovery dated June 30, the State's opposition during the Oral argument was limited to the prosecution's position the officers identified were not material to the case and will not be called as witnesses-- even though the defense expects to subpoena the officer who interviewed key witnesses who are expected to testify at trial.

From the Order:

Idaho Criminal Rule 16(b)(4) states that papers and documents that are “material to the preparation of the defense” that are in the possession, custody, or control of the prosecuting attorney are discoverable.

Additionally, Rule 16(b)(10) allows the court to order material and information be made available to defendant where the defendant shows “substantial need in the preparation of the defendant’s case for additional material or information not otherwise covered by [Rule 16], and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means.”


Order on Defendant's Motion to Compel Discovery

Defense Groundwork to Dismiss Indictment

 

[I'm Nobody]

Is that what case law in Idaho says? I mean, they do have this two-part process. I thought that various things relating to the individual could come in, in a death penalty case.

Disabilities are often mitigating factors, elsewhere (and can be the core of "legal insanity" as when people who are low IQ us that as a mitigating factor).

Very interested in what exactly has been a "mitigating factor" during that trial phase - in Idaho. I thought that various conditions could "come in" in a death penalty case, during the penalty phase. ICBW.

Not sure if this is what you are looking for, mental disabilities, right?
Here's ID law on CONSIDERATION OF MENTAL ILLNESS IN SENTENCING. Section 19-2523
(1) Evidence of mental condition shall be received, if offered, at the time of sentencing of any person convicted of a crime. In determining the sentence to be imposed in addition to other criteria provided by law, if the defendant’s mental condition is a significant factor, the court shall consider such factors as:

• (a) The extent to which the defendant is mentally ill;
• (b) The degree of illness or defect and level of functional impairment;
• (c) The prognosis for improvement or rehabilitation;
• (d) The availability of treatment and level of care required;
• (e) Any risk of danger which the defendant may create for the public, if at large, or the absence of such risk;
• (f) The capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law at the time of the offense charged.

Idaho case example mental health: State v. Miller, 264 P.3d 935 (Idaho 2011) The district court considered the defendant's mental health but placed greater emphasis on the need to protect the community and to punish the defendant.


Please note: In the aggravation and mitigation phase, the victim impact statement are presented here also:
Information concerning the victim and the impact that the death of the victim has had on the victim’s family is relevant and admissible. Such information shall be designed to demonstrate the victim’s uniqueness as an individual human being and the resultant loss to the community by the victim’s death.
19-2515. SENTENCE IN CAPITAL CASES

edit: IMO b,e, f apply to BK. b) was he functioning in other areas of his life? e) risk to community; f) remorse?
maybe a) extent of mental illness -- did his illness cause intellectual disability?
JMO

 

[jepop]

Thank you @Nila Aella for linking the Prosecution's Notice of Brady/Giglio Disclosure dated March 27 as I believe this notice helps start the timeline of where the defense will begin to build its foundation for contesting the grand jury Indictment issued on May 16.

First and most important, the defense has not waived a Speedy Trial.

Taking note the defense filed its Initial Motion for Discovery on Jan 10, First Supplemental Motion for Discovery on Feb 3 (i.e., beyond State's EXH-A), and the Second Supplemental Motion on March 23 (beyond State's EXH-B), the Court's Protective Order - Brady/Giglio on March 28, Third Supplemental Motion on May 3, and Defense Motion to Compel Discovery on May 4-- including but not limited to defense's request from its Second Supplemental Motion for Request No. 160 - Training Records of ... (specific officers), and where each Defense Motion and Order predates the Grand Jury Indictment issued on May 16.

It follows that the defense would have good cause to suspect the State had exculpatory evidence per the Brady Notice of March 27, and confirmation upon the Court's Protection Order on March 28, yet still hadn't received any such evidence from the prosecution including the training records of certain officers requested by its Second Supplemental Motion, when all the while, a grand jury was most likely convened.

BK's defense team further argues that the audio recordings and partial transcripts received by the grand jury for review do not include "exculpatory evidence" that they are certain exists and would clear him of all charges.

While I don't believe there is anything here to clear the defendant of all charges, I do think the defense will rely heavily on challenging the Indictment on technical merit.

"A grand jury was empaneled at a time when the small community of Moscow, Idaho had been exposed to 6 months of intense local, national, and international media coverage," documents submitted by Kohberger's defense read. "Because the state has provided extensive discovery, Mr. Kohberger knows that exculpatory evidence exists. Whether a fair and impartial panel of grand jurors was assembled amidst intense media coverage is a significant question the Defense must evaluate."

[..]

"When you have a grand jury, in most jurisdictions [...] you have to give the defense the opportunity to present exculpatory evidence, if you will, once you know the grand jury is happening," he said.

"The challenge to exculpatory evidence, what I think the argument—they're laying the groundwork to the argument—is that 'Hey, we know there's exculpatory evidence, we didn't get a chance to present that, that is our right, even though it's a secret proceeding."

So the questions that beg being presented for the subject of the defense fighting the Indictment is why didn't the prosecutor give the defense Notice of the grand jury to enable presenting any exculpatory evidence?

And why did the prosecution delay providing the Training Records of three officers who the defense successfully presented played a critical role in investigating the case pursuant to Idaho Criminal Rule 16?

According to the Order granting the Defense Motion to Compel Discovery dated June 30, the State's opposition during the Oral argument was limited to the prosecution's position the officers identified were not material to the case and will not be called as witnesses-- even though the defense expects to subpoena the officer who interviewed key witnesses who are expected to testify at trial.

From the Order:

Idaho Criminal Rule 16(b)(4) states that papers and documents that are “material to the preparation of the defense” that are in the possession, custody, or control of the prosecuting attorney are discoverable.

Additionally, Rule 16(b)(10) allows the court to order material and information be made available to defendant where the defendant shows “substantial need in the preparation of the defendant’s case for additional material or information not otherwise covered by [Rule 16], and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means.”


Order on Defendant's Motion to Compel Discovery

Defense Groundwork to Dismiss Indictment

Great detailed post, though I'm a bit lost on your timeline!

I can only note that as far as the defense looking for/believing there is "exculpatory evidence based on information and belief" it was items 2.a 49 and item 161 of the original May 4 Motion to Compel that the D highlighted. These items were already handed over to the Defense prior to the latest hearing. Item 160 wasn't qualified with that phrase.

https://coi.isc.idaho.gov/docs/case/CR29-22-2805/050423 Motion to Compel Discovery.pdf

As for the Brady Giglio Notice of March 27th - would the State not have included the relevant material/information under seal/protective order? Surely the defense has that relevant material? Moo

I also believe that the D has publicly stated in some doc or other that they recognise the prosecution was within their rights to call in a GJ for indictment and subvert the PH. They may be looking for "exculpatory evidence based in information and belief" in the discovery materials that was then not put before the GJ but so far I don't believe they have found any. Moo

 

[Rumination1]

So what do the defence currently have to rest their case on?
If I read correctly they:
A) will claim the facts were presented to biased grand jury
B) that the dna trail was faulty and that evidence needs removed
C) they ll seek evidence officers acted in faulty way due to either poor training or failure to follow protocol
D) they ll try to say the car evidence is faulty cos LE changed their minds
E) try to construct evidence that the judge was biased towards lE
F) no attempt to prove an alibi but have intimated exculpatory evidence exists
G) use argument to explain why his dna evidence is meaningless and or point out the absence of blood in his car

If he were truly innocent then where is the knife he bought? Why was he out w his phone and car at that time in that area? Why was he there the following day too ?
What is in the states exhibits which points the finger elsewhere and why not proclaim that loudly ?

Anything I have missed?

 

[Seattle1]

The link is what I find confusing. I wasn't aware that the Defense got to participate in the Grand Jury proceedings. I always thought that is where the expression "indicting a ham sandwich" came from. So, I looked it up and Idaho does NOT allow it. I'm scratching my head.....

JMO

Grand Juries | Idaho Fourth Judicial District Court

fourthjudicialcourt.idaho.gov

Grand jury proceedings are private and secret, prospective defendants are not entitled to be present at the proceedings, and no one is allowed to cross-examine witnesses on the defendant's behalf. Information presented to the grand jury is presented by prosecuting attorneys.

Yes, it is a fact that a grand jury is one-sided, and the defense does not get to participate in the proceedings with the EXCEPTION covered in the link to the quoted post where generally, in most jurisdictions, you have to give the defense the opportunity to present exculpatory evidence, if you will, once you know the grand jury is happening. I apologize if this wasn't clear in my post.

Also, be reminded that the prosecutor provided Notice of Brady disclosure on March 27.

In Brady v. Maryland, the United States Supreme Court held that prosecutors must provide exculpatory information to defense counsel, and in Giglio v. United States, it extended the holding to include information suggesting a witness may not be credible.

In other words, the defense had good reason to suspect exculpatory evidence exists and was not given the opportunity to present it, as is their right, even though it's a secret proceeding.

Understanding Brady & Giglio

ETA: It's my understanding the defense presenting exculpatory evidence to the GJ under the exception is a "privilege" granted by the prosecutor and not a right of the defense.

 

[Maat99]

Surviving roommate of slain University of Idaho students fights subpoena to testify in Kohberger's defense

The surviving roommate's attorney says she doesn't have any evidence that would be useful to the suspect's defense.

www.krem.com

That link says absolutely nothing about conflicting witness accounts.

 

[jepop]

Yes, it is a fact that a grand jury is one-sided, and the defense does not get to participate in the proceedings with the EXCEPTION covered in the link to the quoted post where generally, in most jurisdictions, you have to give the defense the opportunity to present exculpatory evidence, if you will, once you know the grand jury is happening. I apologize if this wasn't clear in my post.

Also, be reminded that the prosecutor provided Notice of Brady disclosure on March 27.

In Brady v. Maryland, the United States Supreme Court held that prosecutors must provide exculpatory information to defense counsel, and in Giglio v. United States, it extended the holding to include information suggesting a witness may not be credible.

In other words, the defense had good reason to suspect exculpatory evidence exists and was not given the opportunity to present it, as is their right, even though it's a secret proceeding.

Understanding Brady & Giglio

I'm not sure, but isn't it that the prosecutor is bound to present exculpatroy evidence at the GJ hearing, not the defense itself? Moo

ETA: So there are two points that need to be separated

1) Brady Giglio binds the prosecution to hand over exculpatory evidence in discovery
2) Prosecution is bound to present any of said Brady/giglio defined exculatory evidence at a GJ hearing - that seems to be what most States require Imo.

And I'm not sure what category "exculpatory on information and belief" falls into because if the D is saying something is exculpatory using the phrase then perhaps the State need clarification from D re what they actually are after? I know that in State's original response to Motion to Compel dated 12th May they did ask for clarification from the D about this.

"To the extent that the Defense believes that certain reports
may contain “exculpatory information,” the State asks that the Defense specify what exculpatory information they are referring to and the basis for their belief so as to enable the State to make any appropriate additional inquires...

Regarding the Defendant’s request labeled “2.a.,” in addition to the above
response, the State has inquired of the Defense for clarification on ISP lab reports by number since there is a question about some duplicate numbering of the initial lab reports. ISP lab reports are separately numbered by forensic biology, DNA,prints, and forensic field services. The State has already been able to advise
Defense counsel that there is an ISP lab report 25 which has been discovered, and there is another ISP lab report ll which is pending review and approval at the
lab. To assist the parties, the State has initiated specific inquiries about the status of all ISP lab reports and will make discovery to Defense as appropriate...

5. The State has provided a copy of the report/memo referred to as “Request No.
161” to the Defendant. The State is unaware of any notes, recordings or photographs."

https://coi.isc.idaho.gov/docs/case/CR29-22-2805/051223%20States%20Response%20to%20Defendants%20Motion%20to%20Compel%20Discovery.pdf

EBM: Changed word Defense to Prosecution in point 2)

 

[Boxer]

That link says absolutely nothing about conflicting witness accounts.

Maybe "different accounts" would have been mire accurate.

 

[Seattle1]

I'm not sure, but isn't it that the prosecutor is bound to present exculpatroy evidence at the GJ hearing, not the defense itself? Moo

My understanding is that under the exception for exculpatory evidence, this gives the defense the "privilege," and not the right, to present exculpatory evidence. I could be wrong -- personally, I don't support GJ Indictments for anything other than white-collar crime. JMO

 

[JerseyGirl]

New thread:

4 Univ of Idaho Students Murdered, Bryan Kohberger Arrested, Moscow, Nov 2022 #85

This tragedy seems to be breaking news: Police said they responded to King Road for a report of an unconscious person. When officers arrived, they “discovered four individuals who were deceased...”...

www.websleuths.com