4 Univ of Idaho Students Murdered, Bryan Kohberger Arrested, Moscow, Nov 2022 #88

[jepop]

I see your point. You're right that we don't know where she's going yet. But I don't suspect it's to false testimony. I suspect she's citing Napue for the proposition that it doesn't matter if Idaho law finds the error harmless (or not germane on other grounds). She wants a fallback position that even harmless error under Idaho law does not dismiss or negate a (potential) violation of his federal constitutional rights.

AT has been saying for some time that the state has evidence that is exculpatory. The state kept asking again and again in it's early responses to her motions to compel for the defense to tell them what that evidence is bc to their knowledge there is nothing exculpatory.

So, to me, her filing is falling right along these same lines of argument that she's been making all along. Because of this I didn't find it alarming or surprising at all.

She cites Idaho Criminal Rule 6.1(b)(1)

The prosecuting attorney has the power and duty to: (1) present to the grand jury evidence of any public offense, however, when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence which directly negates the guilt of the subject of the investigation the prosecutor must present or otherwise disclose that evidence to the grand jury

In reading the state's replies, they didn't seem (to me) to be concerned about this. For this to be a real problem I think (as it clearly states above), (1) the evidence not disclosed must be substantial, (2) must directly negate the defendant's guilt, and (3) there has to have been personal knowledge and intent. Intent is required under Napue too as I read it.

It is interesting that she is so dead-on focused on this exculpatory evidence though and I am very curious to know exactly what it is.

jmo

In the Motions to Compel and in the (now defunct) supeona for BF to attend the original PH, defense qualified their claims of exculpatory with the phrase "on information and belief". Imoo that qualification (or similar) will be applied here too in the sealed attachment to the motion.

And even if the D are stating exculpatory and intend that to mean as defined by ICRs (ie exculpatory that the P knew of and didn't present to GJ) that is still a claim that will be determined by the judge when weighing the d's evidence and rationale for that claim.Moo. It doesn't mean that withheld exculpatory evidence will be found to have existed. It is just a claim at this stage. It's up to judge to assess the evidence - and if he finds that the answer is no, that doesn't mean the defense "lied", it just means the defense made an 'error in interpretation', or the defense was otherwise 'mistaken'. Moo

 

[Jurisprudence]

In the Motions to Compel and in the (now defunct) supeona for BF to attend the original PH, defense qualified their claims of exculpatory with the phrase "on information and belief". Imoo that qualification (or similar) will be applied here too in the sealed attachment to the motion.

And even if the D are stating exculpatory and intend that to mean as defined by ICRs (ie exculpatory that the P knew of and didn't present to GJ) that is still a claim that will be determined by the judge when weighing the d's evidence and rationale for that claim.Moo. It doesn't mean that withheld exculpatory evidence will be found to have existed. It is just a claim at this stage. It's up to judge to assess the evidence - and if he finds that the answer is no, that doesn't mean the defense "lied", it just means the defense made an 'error in interpretation', or the defense was otherwise 'mistaken'. Moo

Agree, which is why I'm not worried about it. I don't think it does any good to read facts of false testimony into it at this point.

jmo

 

[jepop]

Agree, which is why I'm not worried about it. I don't think it does any good to read facts of false testimony into it at this point.

jmo

Agree, I'm not worried either. It feels a little bit to me like the boy who cried wolf!

ETA: And Imo this isn't likely to be the/an actual wolf -

 

[Sundog]

Not sure.

But it seems like the FBI thinks only the end result matters. So I’d be surprised if they had any internal policies on retaining anything related to that work.

MOO

Can the FBI officer who was in charge of the work related to the Idaho murders be issued a subpoena and have to testify? And would the defense and prosecution both know what his testimony would be in advance of the trial, so that they would be able to decide in advance if they want to call him/her as a witness? Not sure how that all would work.

 

[Boxer]

On average 1 in 20 defendants are innocent. 4.53 Million were arrested in 2021. Of those, 226,500 are innocent.

Source?
And what would be your solution?

 

[Jurisprudence]

Agree, I'm not worried either. It feels a little bit to me like the boy who cried wolf!

ETA: And Imo this isn't likely to be the/an actual wolf -

I just remembered the DNA of the 3 (was it) unknown males? If they didn't present this I could see that being a potential problem (depending on the facts, which we do not yet know). Though as we've surmised many times before that house was probably full of unknown DNA.

jmo

ETA I wouldn't be surprised if DNA from past tenants was still hanging around. Maybe @10ofRods could speak to this. I understand DNA to be pretty resilient but does it naturally dissipate over time if not "preserved"?

 

[jepop]

I just remembered the DNA of the 3 (was it) unknown males? If they didn't present this I could see that being a potential problem (depending on the facts, which we do not yet know). Though as we've surmised many times before that house was probably full of unknown DNA.

jmo

Not sure how that would be exculpatory though. Not at trial looking to generate doubt here. I'm not second guessing as it could be something, could be nothing, could be very dependent on argument/interpretation of law. Jmo

 

[Jurisprudence]

Not sure how that would exculpatory though. Not at trial looking to generate doubt here. I'm not second guessing as it could be something, could be nothing, could be very dependent on argument/interpretion of law. Jmo

MOO/Speculation If exculpatory evidence is favorable to the defendant, and may tend to negate guilt, this may exonerate a defendant, but not always. So if we think of it this way, the presence of other male DNA in the home is favorable to BK and could tend to negate his guilt but it does not necessarily exonerate him.

Their argument could be that the state didn't present this evidence. But, of course, this is a total guess.

Speculation only.

 

[Boxer]

Why would unknown male DNA be of any importance unless it was on the sheath.

 

[jepop]

MOO/Speculation If exculpatory evidence is favorable to the defendant, and may tend to negate guilt, this may exonerate a defendant, but not always. So if we think of it this way, the presence of other male DNA in the home is favorable to BK and could tend to negate his guilt but it does not necessarily exonerate him.

Their argument could be that the state didn't present this evidence. But, of course, this is a total guess.

Speculation only.

I think your previous point regarding intent to exclude and level of substantiality is salient. In that scenario it would come down to whose interpretation is right Imo. P would simply argue those three samples didn't qualify for codis (and explain rationally and logically why) and therefore not exculpatory evidence. Moo

 

[iamshadow21]

Why would unknown male DNA be of any importance unless it was on the sheath.

Context is everything. If it is found somewhere in close proximity to the crime scene, in a place or in a fashion that suggests that it is possibly relevant to the crime, then it is important. If it's away from the scene, not connected to it, or in a context that suggests it's not relevant, then it is far less likely to be important.

For example, if someone is killed in a bathroom, the fingerprints and DNA the plumber left on the U bend under the sink when he fixed it six months earlier are close in proximity but not likely to be connected to the crime. But if there's unknown DNA on the flush mechanism of the toilet, then that is more likely to be relevant. As a frequently touched and cleaned thing, a profile on there is going to be recent. It may still be from a friend or relation who dropped by and didn't do the crime, but it's more important to chase the donor of that profile down.

MOO

 

[jepop]

Context is everything. If it is found somewhere in close proximity to the crime scene, in a place or in a fashion that suggests that it is possibly relevant to the crime, then it is important. If it's away from the scene, not connected to it, or in a context that suggests it's not relevant, then it is far less likely to be important.

For example, if someone is killed in a bathroom, the fingerprints and DNA the plumber left on the U bend under the sink when he fixed it six months earlier are close in proximity but not likely to be connected to the crime. But if there's unknown DNA on the flush mechanism of the toilet, then that is more likely to be relevant. As a frequently touched and cleaned thing, a profile on there is going to be recent. It may still be from a friend or relation who dropped by and didn't do the crime, but it's more important to chase the donor of that profile down.

MOO

It didn't qualify for codis (Per 18th Aug hearing). I think that points towards an non-exculpatory context. Moo

 

[Jurisprudence]

Why would unknown male DNA be of any importance unless it was on the sheath.

Agree. The only thing I can think of is them possibly arguing that the DNA of one of those people placed the sheath in the home. It's a stretch but it's all I can think of at the moment. Any thoughts?

ETA and if it is the case that it's about this DNA this just might be why the state stated they are aware of no exculpatory evidence.

jmo

 

[Jurisprudence]

Context is everything. If it is found somewhere in close proximity to the crime scene, in a place or in a fashion that suggests that it is possibly relevant to the crime, then it is important. If it's away from the scene, not connected to it, or in a context that suggests it's not relevant, then it is far less likely to be important.

For example, if someone is killed in a bathroom, the fingerprints and DNA the plumber left on the U bend under the sink when he fixed it six months earlier are close in proximity but not likely to be connected to the crime. But if there's unknown DNA on the flush mechanism of the toilet, then that is more likely to be relevant. As a frequently touched and cleaned thing, a profile on there is going to be recent. It may still be from a friend or relation who dropped by and didn't do the crime, but it's more important to chase the donor of that profile down.

MOO

In your opinion only, is it possible for DNA from previous tenants/students to still be in tact a year or maybe even 2 or more years later? I think I recall very early in the case an interview with a previous male tenant of that home who was discussing locks on the bedroom doors.

ETA especially if it's in an obscure place, not often handled or touched

jmo

 

[iamshadow21]

In your opinion only, is it possible for DNA from previous tenants/students to still be in tact a year or maybe even 2 or more years later? I think I recall very early in the case an interview with a previous male tenant of that home who was discussing locks on the bedroom doors.

ETA especially if it's in an obscure place, not often handled or touched

jmo

In my opinion, yes. DNA can be very durable, in the right conditions, especially in areas that are protected from extremes of moisture and temperature and not touched regularly.

For example, in Gannon's case, there was an unknown male profile found in one area of the scene. The expert witness expressed the educated opinion that it was most likely to have been left by someone involved in building or finishing the home before Gannon's family moved into it. The home was only a couple of years old, I believe. Gannon's family had been living in it for around a year, and they were the first tenants.

I'm just an amateur, though. The best person to ask would be @10ofRods .

MOO

 

[Balthazar]

Why would unknown male DNA be of any importance unless it was on the sheath.

What if it was on the victims or their beds or the doorknobs to the victim's bedrooms or on the sliding glass door? (There was a handprint there clearly visible in the crime scene photos and also they took the door handle to the sliding glass door, so that may be a location of importance.) What if it was on the Doordash bag but not that of the JITB employees or the Doordash person? What if it was in a shower drain or sink drain along with blood residue? I can think of many, many places that unknown male DNA could be of extreme importance in this case.

Remember CSI only processes areas relevant to the crime. They create a construct over the relevant areas within the house that allows them to create order out of chaos and the two interior unknown male DNA samples would have been within that construct, not outside of it.

 

[Boxer]

I think your previous point regarding intent to exclude and level of substantiality is salient. In that scenario it would come down to whose interpretation is right Imo. P would simply argue those three samples didn't qualify for codis (and explain rationally and logically why) and therefore not exculpatory evidence. Moo

Agree. To qualify for CODIS the DNA needs to be suspected of belonging to a perpetrator.

 

[Boxer]

What if it was on the victims or their beds or the doorknobs to the victim's bedrooms or on the sliding glass door? (There was a handprint there clearly visible in the crime scene photos and also they took the door handle to the sliding glass door, so that may be a location of importance.) What if it was on the Doordash bag but not that of the JITB employees or the Doordash person? What if it was in a shower drain or sink drain along with blood residue? I can think of many, many places that unknown male DNA could be of extreme importance in this case.

Remember CSI only processes areas relevant to the crime. They create a construct over the relevant areas within the house that allows them to create order out of chaos and the two interior unknown male DNA samples would have been within that construct, not outside of it.

The DNA found did not qualify for CODIS. The rules are pretty clear.

 

[TL4S]

Agree. To qualify for CODIS the DNA needs to be suspected of belonging to a perpetrator.

Is the D asking for the reasons those samples didn't qualify? That would be a fair question, imo.

How did LE decide that those samples didn't come from a possible suspect? Or did they not qualify for other reasons? The answer should exist and could be very simple, like any one of the multiple reasons people here have suggested. But isn't the D entitled to at least know that answer?

For pretend example, if one sample came from the basement door, as a possible entry point, but LE later determined the killer was never at that door, then there's no reason to think that DNA was related to the case. Okay, fine, tell this to the D and explain how LE determined the killer wasn't at that door. If it's sound evidence, like let's say there was camera footage to prove nobody came to that door, then the D would have their answer.

To me, this just seems like something both sides would want to close the gap on so there's no more questions.

Jmo, which is admittedly amateur, fwiw...

 

[Boxer]

Is the D asking for the reasons those samples didn't qualify? That would be a fair question, imo.

How did LE decide that those samples didn't come from a possible suspect? Or did they not qualify for other reasons? The answer should exist and could be very simple, like any one of the multiple reasons people here have suggested. But isn't the D entitled to at least know that answer?

For pretend example, if one sample came from the basement door, as a possible entry point, but LE later determined the killer was never at that door, then there's no reason to think that DNA was related to the case. Okay, fine, tell this to the D and explain how LE determined the killer wasn't at that door. If it's sound evidence, like let's say there was camera footage to prove nobody came to that door, then the D would have their answer.

To me, this just seems like something both sides would want to close the gap on so there's no more questions.

Jmo, which is admittedly amateur, fwiw...

Because of the sealing no way to tell.