4 Univ of Idaho Students Murdered, Bryan Kohberger Arrested, Moscow, Nov 2022 #86

[TenaciousTBacon]

All that follows is MOO

You are correct. The burden is on the state, and the defense is not required to put on any case at all. They can sit there and poke holes at the state's evidence without calling a single witness of their own if they choose.

However, the unusual thing here is that the Idaho rules (19-519) require the defense to disclose alibi evidence to the state in advance of trial so that the state may explore it. If you think about it, this makes sense as it could be an immense cost saving measure. For example, if the defendant really does have an alibi, if LE actually did overlook something or fail to interview someone, the state could move dismiss the charges. Better to do that than to let jeopardy attach.

So in this case what you are seeing is the defense file a paper about an alibi by the deadline (as is required) but instead of giving the alibi evidence required, stating in it instead "we're not telling you what his alibi is. He is remaining silent and we will offer our alibi at trial through the cross examination of the state's witnesses." (paraphrased)

So, she arguably didn't comply. And, the rules say if the defense doesn't comply with the law and disclose this information then they cannot come back later and ambush the state by offering it at trial unless there is a showing of good cause as to why the information was not disclosed when required.

Every time the defense files a paper, the state has to respond. And, this was no exception but this reply was actually important. Because what the state is saying to the judge is that the defense didn't comply with the law so we are asking you to please enter an order to either make them comply or, limit their right to offer this evidence through their own witnesses and case, not through ours.

Hope this makes sense.

All jmo.

Yes, exactly. Judge, can you please tell them to put up or shut up?

 

[Jurisprudence]

I wish her luck in finding an expert witness who is going to disagree with the CAST expert, pg. 13:
JMO

https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/122922+Affidavit+-+Exhibit+A+-+Statement+of+Brett-Payne.pdf

After receiving this information, I consulted with an FBI Special Agent (SA) that is certified as a member of the Cellular Analysis Survey Team (CAST). Members of CAST are certified with the FBI to provide expert testimony in the field of historical CSLI and are required to pass extensive training that includes both written and practical examinations prior to be certified with CAST as well as the completion of yearly certification requirements. Additionally, the FBI CAST SA that I consulted with has over fifteen years of federal law enforcement experience, which includes six years with the FBI. From information provided by CAST, I was able to determine estimated locations for the 8458 Phone from November 12, 2022 to November 13,2022, the lime period authorized by the court.

They get paid a lot for this stuff. You can find an expert to testify to whatever you want for the right price. In fact, many experts are professional witnesses. That's why it's often referred to colloquially as "battle of the experts", meaning which one will the jury believe. In Murdaugh, the jury seemed to love Dr. Kinsey. I think a lot of people watching that trial loved Dr. Kinsey.

I should add that I agree with you that it will still be a tough hill to climb imo.

All MOO

 

[Justice101]

They get paid a lot for this stuff. You can find an expert to testify to whatever you want for the right price. In fact, many experts are professional witnesses. That's why it's often referred to colloquially as "battle of the experts", meaning which one will the jury believe. In Murdaugh, the jury seemed to love Dr. Kinsey. I think a lot of people watching that trial loved Dr. Kinsey.

I should add that I agree with you that it will still be a tough hill to climb imo.

All MOO

But they only do that on wishy-washy evidence. For example, who is going to argue that DNA evidence is not correct? Only argument is like errors in the chain of custody paper trail. Foot prints, bite marks, gun recycling marks, tire tracks... I get it.

 

[Jurisprudence]

But they only do that on wishy-washy evidence. For example, who is going to argue that DNA evidence is not correct? Only argument is like errors in the chain of custody paper trail. Foot prints, bite marks, gun recycling marks, tire tracks... I get it.

MOO, they do it for everything. Esp if the case is of enough consequence. (And, moo, speculation, brace yourself for big DNA arguments. Not that we know at this stage if they'll go anywhere)

 

[I'm Nobody]

MOO, they do it for everything. Esp if the case is of enough consequence. (And, moo, speculation, brace yourself for big DNA arguments. Not that we know at this stage if they'll go anywhere)

Exactly. MOO speculation too. Half of the defense dream tag-team are DNA-specialists. Why hire them if DNA arguments aren't the plan? Expect days of dueling expert DNA witnesses.

Defense Team:
Anne C. Taylor - Chief Public Defender
Jay W. Logsdon - Chief Deputy of Litigation
Elisa G. Massoth - Criminal Defense Attorney (Fame discredit witnesses)
Bicka Barlow - DNA consultant
Stephen B Mercer - DNA consultant
Matthew Noedel - lists his occupation as "forensic consultant" at the Noedel Scientific since 2005

JMO
edit: Many thanks to @Cool Cats for Defense Team update thread #85, page 2.

 

[Sundog]

Kind of but not necessarily. They can't compel him to testify. That would be a definite appealable issue I think (moo).

I read this as them asking the judge to compel them to 1) comply and produce; and if not, 2) to limit his right to do to so to his case.

In other words, order that BK's alibi, if there is one at all, be elicited through his case, not the prosecution's case (if the defense even intends to put one on). This could mean the "alibi" would be permitted through testimony elicited on the stand by him (BK), or through his witnesses (not the state's witnesses) that his attys call. I thought that was a smart play by the state. MOO

As always, jmo

Of course they could overlap - i.e. the state's witnesses and the defense's alibi witnesses. But it sounds like you are saying that she should name these witnesses, even if they are the state's witnesses.

 

[Jurisprudence]

Of course they could overlap - i.e. the state's witnesses and the defense's alibi witnesses. But it sounds like you are saying that she should name these witnesses, even if they are the state's witnesses.

No. I'm just giving my take on my reading. Nothing factual. My take is them saying if you want to present an alibi, especially if you want to spin one through my case in chief, you need to comply with the law and give me the discovery.

jmo

 

[10ofRods]

Of course they could overlap - i.e. the state's witnesses and the defense's alibi witnesses. But it sounds like you are saying that she should name these witnesses, even if they are the state's witnesses.

No one knows who any of the witnesses will be yet. The law in Idaho, however, requires that the witnesses to be used for the alibi must be given by name to the Court, by a certain date (which was extended, IIRC).

IOW, this is the first official ask and deadline for witnesses - you might call it, the first step in the witness proceedings - the Defendant has a right to have those witnesses in court.

If the defendant doesn't say who the witnesses are, the defendant cannot be certain they will get the witnesses they wish to cross-examine - they aren't in charge of the State's final list. Potential witness list is probably exceedingly long, it will get narrowed down.

The Court will prioritize and insure that the alibi witnesses are protected, if need be. The State will have a right to talk to them - just as we saw happening with the Defense asking for the State's witnesses to be deposed by them.

 

[kittythehare]

 

[katydid23]

Why Did BK Not Spill Alibi at Earliest Opp?

@katydid23 ETA: "snipped for focus"
Several ppl posted the same thought, and it makes sense to many (if we had an alibi like ex. in your post)...

but IIRC, LE (neither ID nor PA LE) did not conduct any "initial interviews" w BK...

... unless we want to characterize as "initial interviews," whatever BK may have said after PA LE's (sudden, ahem) entry into parents' PA house. Only thing I recall reading was his anybody-else-being-arrested line.

After immed'ly lawyering up, BK said nothing to LE (IIRC not saying I do).

Hoping someone w clearer memory (& link pls?) will correct or clarify.

ETA: Did MSM report, from any LE source, comments about whether BK was a chatter box while enroute from PA to ID w LE?
IDTS, but ICBW.

He got himself an attorney, in PA, and they discussed his extradition and he told his attorney he was looking forward to his exoneration. I think if he had a solid alibi, at that point he could have told his attorney why LE was wasting their time. If there was a witness, or a way to find cctv footage , etc, he could have gotten that started back then.

Makes me think he doesn't have one, MOO.

 

[katydid23]

I am not an attorney, and a little confused by this Motion to compel "Notice of Alibi", in that, I had always thought the entire burden in a criminal case was on the State and the Prosecution to prove the Defendant guilty beyond a reasonable doubt, and I thought the Defense could present no defense at all or present any defense it wanted to.

It seems this motion to compel a "Notice of Alibi", makes the Defense reveal its defense strategy early and therefore locks the defense into a position well before the trial. It seems to make it far easier for the prosecution to anticipate the defense strategy and then prepare to contradict it.

Again, I am not an attorney, and want to ask, is this something unique to Idaho criminal law? Or is this demand for the defendants to present an alibi defense early something each state requires?

Discovery works both ways. Both sides have to share their evidence and investigation with the other before the trial starts.

It is not fair for either side to spring brand new information upon the other during the trial.

The potential alibi falls under that discovery rule. The defense cannot wait until the trial to divulge alibi evidence because it does not give the state any chance to investigate and verify the information.

 

[schooling]

He got himself an attorney, in PA, and they discussed his extradition and he told his attorney he was looking forward to his exoneration. I think if he had a solid alibi, at that point he could have told his attorney why LE was wasting their time. If there was a witness, or a way to find cctv footage , etc, he could have gotten that started back then.

Makes me think he doesn't have one, MOO.

I remember a something that PA Law Enforcement said that always stuck with me. It was something akin to "I bet he wants to get back to ID right away to see the evidence they have against him".

I remember the person who said that commenting that Idaho LE had a lot. But I don't believe these two statements from him were connected though.

To that point...I think BK didn't give an alibi because he had no clue what police had at that point. He knew if he gave an alibi that early that LE might be able to disprove the entire story or parts of it.

 

[Boxer]

LE managed to clear a lot of people of interest in the early stages of their investigation and I suspect that quite a few of those were cleared by their own statements and verifiable alibis.

Right. "Cleared by their own statements and verifiable alibis"

 

[Boxer]

Discovery works both ways. Both sides have to share their evidence and investigation with the other before the trial starts.

It is not fair for either side to spring brand new information upon the other during the trial.

The potential alibi falls under that discovery rule. The defense cannot wait until the trial to divulge alibi evidence because it does not give the state any chance to investigate and verify the information.

AT knows that, MOO she thinks judge is weak.

 

[Boxer]

I remember a something that PA Law Enforcement said that always stuck with me. It was something akin to "I bet he wants to get back to ID right away to see the evidence they have against him".

I remember the person who said that commenting that Idaho LE had a lot. But I don't believe these two statements from him were connected though.

To that point...I think BK didn't give an alibi because he had no clue what police had at that point. He knew if he gave an alibi that early that LE might be able to disprove the entire story or parts of it.

Exactly. Waiting to see what they have on him.

 

[Balthazar]

My recollection was that he was very quiet enroute to ID. However, once he asked for an attorney in PA, he would have had the chance to say that he had an alibi. I recall his PA public defender stated that BK started talking and he told BK to stop. Of course, he offered no details as that would have been inappropriate. What I am still curious about is - if BK was saying he had an alibi, wouldn't the public defender have an obligation to deal with that? I mean, why let him be taken all the way to ID if he had an alibi?

Of course, another question could be, wouldn't they be pretty danged sure he was their man to burst into the house and arrest him in the wee hours, which pretty much guaranteed he wouldn't be talking to them? MOOooo

The Public Defender in PA was hired for the extradition matter ONLY. Therefore, it would have been completely and totally inappropriate for him to represent BK for the murder charges which are a separate matter altogether. He would not have discussed anything to do with the murder charges with BK whatsoever, therefore, he would have no obligation to deal with BK's alibi, nor should he have dealt with it in any way, shape or form, since it would be far outside the scope of the extradition matter.

"The first thing I said to him was 'Bryan, don't tell me anything about the case. I don't want to know any of the facts and circumstances,'" said LaBar.

That's because LaBar was only representing Kohberger during the extradition process.

Bryan Kohberger's Pa. public defender opens up about what happened in the Poconos, what's next

69 News is learning new details from the Pennsylvania public defender who represented the Monroe County man accused of killing four Idaho college students.

www.wfmz.com

Of additional interest, from the article linked above, BK's family had planned to attend the preliminary hearing on June 26, 2023.

 

[al66pine]

BK's Atty in PA for Extradition. Alibi Evidence?

He got himself an attorney, in PA, and they discussed his extradition and he told his attorney he was looking forward to his exoneration. I think if he had a solid alibi, at that point he could have told his attorney why LE was wasting their time. If there was a witness, or a way to find cctv footage , etc, he could have gotten that started back then.
Makes me think he doesn't have one, MOO.

@katydid23 First, I agree w your opn that BK does not have a veriable alibi.

That said, from what I recall reading at time of extradition and from info below, I don’t know whether BK's PA. atty should have been able to get “started” re any alibi defense evd. BK may (or may not) have told him about.

IIUC, BK's PA. def atty would not have been able to offer any alibi defense evidence at the PA. extradition HEARING there, as per PA statute* "guilt or innocence of the accused" is not to be looked into by the PA. gov'r or at any proceeding after extradition demand is made.* IOW alibi evd. would not have been admissible or considered, IIUC.

Appears imo the only issues BK, thru his PA atty, could have raised at PA. extradition hearing, are the points listed below.** Alibi is not one of them, as guilt or innocence is not to be looked into.

Could or should BK’s PA atty have provided BK’s (hypo) alibi stmt/info to BK’s ID. def atty? IDK.

____________________________________________
* From Pennsylvania statutes.
2022 Pennsylvania Consolidated & Unconsolidated Statutes
Title 42 - JUDICIARY & JUDICIAL PROCEDURE. Chapter 91 - Detainers & Extradition
"§ 9141. Inquiry into guilt or innocence of accused.
The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor, or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as provided in this subchapter shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime."

^ same. Chapter 91. - Title 42 - JUDICIARY AND JUDICIAL PROCEDURE

"....As long as the proper extradition process and procedure have been followed, the fugitive must be surrendered to the first state. The U.S. Supreme Court has identified a few DEFENSES TO EXTRADITION [ed: my caps], including: whether the request documents are in order; whether the person has been charged with a crime in the demanding state; whether the person named in the request is the person who committed the crime; and whether the petitioner is a fugitive from the requesting state."
^ Non Extradition States 2023

 

[al66pine]

BK's PA Atty. A PD, Appointed Only re Extradition.

The Public Defender in PA was hired for the extradition matter ONLY. Therefore, it would have been completely and totally inappropriate for him to represent BK for the murder charges which are a separate matter altogether. He would not have discussed anything to do with the murder charges with BK whatsoever, therefore, he would have no obligation to deal with BK's alibi, nor should he have dealt with it in any way, shape or form, since it would be far outside the scope of the extradition matter.

"The first thing I said to him was 'Bryan, don't tell me anything about the case. I don't want to know any of the facts and circumstances,'" said LaBar.

That's because LaBar was only representing Kohberger during the extradition process.

Bryan Kohberger's Pa. public defender opens up about what happened in the Poconos, what's next

69 News is learning new details from the Pennsylvania public defender who represented the Monroe County man accused of killing four Idaho college students.

www.wfmz.com

....

snipped for focus @Balthazar
Agreeing w ^.
IMO.

 

[North_Idaho_Nony]

The Public Defender in PA was hired for the extradition matter ONLY. Therefore, it would have been completely and totally inappropriate for him to represent BK for the murder charges which are a separate matter altogether. He would not have discussed anything to do with the murder charges with BK whatsoever, therefore, he would have no obligation to deal with BK's alibi, nor should he have dealt with it in any way, shape or form, since it would be far outside the scope of the extradition matter.

"The first thing I said to him was 'Bryan, don't tell me anything about the case. I don't want to know any of the facts and circumstances,'" said LaBar.

That's because LaBar was only representing Kohberger during the extradition process.

Bryan Kohberger's Pa. public defender opens up about what happened in the Poconos, what's next

69 News is learning new details from the Pennsylvania public defender who represented the Monroe County man accused of killing four Idaho college students.

www.wfmz.com

Of additional interest, from the article linked above, BK's family had planned to attend the preliminary hearing on June 26, 2023.

Ahh — thanks for the reminder that BK’s extradition attorney was also an appointed public defender! I’d forgotten that!

 

[jepop]

Should be simply failure to file for an alibi defense on time because that is what this is.

Yes, the D responded to the Demand after their extension but in their response they failed to comply yet they still said they would be producung some sort of alibi defense. It's hard to interpret this any way other than a deliberately obtuse muddying of the waters( Imoo). The P's motion to compel is the right move Imo to clear this up ASAP. If the D was unable/unwilling to comply they should have either let the deadline pass or instead asked for further extension of time and plead some kind of good cause for it. I really want to see how the Judge handles this. Moo