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

[NextSprint]

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

Same here! Either she's banging her head on the wall and doesn't realise it, or the state is playing poker and we don't realise it.

 

[NextSprint]

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

I've gone through the pain of reading the CODIS submission rules; "qualifying for CODIS" in my view really only addresses the sample level of the DNA found, as in "Is there enough data in the sample taken to be run in CODIS?"

 

[maskedwoman]

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

Hmm.. I had an idea. Maybe she's going to try and challenge the rules on what qualifies for CODIS?

It's an interesting conundrum. Clearly, we don't want to exclude relevant samples due to poorly drawn or outdated rules, but I also understand why labs can't test every sample present at a heavily used location. The backlog for testing of all kinds would quickly stretch into years. Given the size of parties held at King Road, the house could almost be considered a public place. With that in mind, I understand why the rules exist.

Last night, I was reading a book by a very well known author and the crime scene was a market. The lead forensic person mentioned there were enough DNA samples to keep the lab busy for years. I was disappointed that such a highly regarded author didn't even touch on how that really works.

 

[NextSprint]

Hmm.. I had an idea. Maybe she's going to try and challenge the rules on what qualifies for CODIS?

It's an interesting conundrum. Clearly, we don't want to exclude relevant samples due to poorly drawn or outdated rules, but I also understand why labs can't test every sample present at a heavily used location. The backlog for testing of all kinds would quickly stretch into years. Given the size of parties held at King Road, the house could almost be considered a public place. With that in mind, I understand why the rules exist.

Last night, I was reading a book by a very well known author and the crime scene was a market. The lead forensic person mentioned there were enough DNA samples to keep the lab busy for years. I was disappointed that such a highly regarded author didn't even touch on how that really works.

They obviously tested it or they wouldn't know it's male. IMO they didn't run it through CODIS most likely because it was too small a sample for CODIS' rules. JMO of course, we know nothing out here.

 

[girlhasnoname]

AT is playing the long hand here, smoke and word games IMO.

If there was such flagrant, diabolical misconduct by the Prosecutor, and this 'all so very clearly exculpatory evidence of BK's guilt", she would have been screaming from the highest court bench for a Motion to Dismiss charges as soon as she knew.

There would have already been a special hearing and if all of these accusations were true, the State would have dismissed the case without prejudice and been forced to another GJ or Preliminary Hearing.

This Defense ran down the clock on BK's Notice of Alibi, even past the actual date and also almost ran down the clock on his Right to Speedy Trial. If they had solid proof of their client's innocence, we wouldn't be sitting here wondering what her fluffed up 29 page Motion might say and BK wouldn't still be sitting in jail on no bond.

She's reaching more than Stretch Armstrong. The Defense has tried this case in media with their Motions and their less than "Expert" witnesses. I think they're the ones playing dirty at this point, even if it is their job to defend their client against DP charges. I hope when we do finally get the hearing on Sept 22nd, she will be forced to put up or shut up.

ALL MOO

 

[jepop]

Hmm.. I had an idea. Maybe she's going to try and challenge the rules on what qualifies for CODIS?

It's an interesting conundrum. Clearly, we don't want to exclude relevant samples due to poorly drawn or outdated rules, but I also understand why labs can't test every sample present at a heavily used location. The backlog for testing of all kinds would quickly stretch into years. Given the size of parties held at King Road, the house could almost be considered a public place. With that in mind, I understand why the rules exist.

Last night, I was reading a book by a very well known author and the crime scene was a market. The lead forensic person mentioned there were enough DNA samples to keep the lab busy for years. I was disappointed that such a highly regarded author didn't even touch on how that really works.

No way of telling what alleged exculpatory evidence the D is referring to due to the sealing.Moo. I'm not second guessing given the number of past claims made in the non-GJ discovery via Motions to Compel. On the D's information and belief none of those claims so far have resulted in BK's exoneration. For all we know, D may have already encountered a dead end with those non CODIS qualifying samples. Regardless, Imo the P can explain (if not already clear) the procedure and rationale concerning the non-qualification. I doubt they could be construed as exculpatory in this context - ie not substantial evidence negating defendant's guilt that was known as such by the P and then deliberately withheld from GJ. Moo

 

[NextSprint]

No way of telling what alleged exculpatory evidence the D is referring to due to the sealing.Moo. I'm not second guessing given the number of past claims made in the non-GJ discovery via Motions to Compel. On the D's information and belief none of those claims so far have resulted in BK's exoneration. For all we know, D may have already encountered a dead end with those non CODIS qualifying samples. Regardless, Imo the P can explain (if not already clear) the procedure and rationale concerning the non-qualification. I doubt they could be construed as exculpatory in this context - ie not substantial evidence negating defendant's guilt that was known as such by the P and then deliberately withheld from GJ. Moo

It could be as simple as:

- A Grand Juror asks "Were any other DNA samples found at the crime scene?"
- Prosecutor answers "No" (because we already know that's what they're trying to spin, and have been forced back off of that spinning by the persistence of AT)
- Then that would be a Napue violation.

JMO, and just for demonstration purposes.

 

[Balthazar]

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

Yet that information was not given to the defense by Thompson until he said so at the hearing which begs the question, why wasn't the fact it was ruled out as not qualifying for CODIS not in the discovery? That should have been documented and the reason it did not qualify for CODIS should have been documented.

 

[SpiderFalcon]

Yet that information was not given to the defense by Thompson until he said so at the hearing which begs the question, why wasn't the fact it was ruled out as not qualifying for CODIS not in the discovery? That should have been documented and the reason it did not qualify for CODIS should have been documented.

How do you know it wasn't?

 

[jepop]

It could be as simple as:

- A Grand Juror asks "Were any other DNA samples found at the crime scene?"
- Prosecutor answers "No" (because we already know that's what they're trying to spin, and have been forced back off of that spinning by the persistence of AT)
- Then that would be a Napue violation.

JMO, and just for demonstration purposes.

Who knows but that would not amount to exculpatory evidence Imo. Hope others on the thread might take up your idea as I'm refraining from second guessing further on the details under seal.

 

[Balthazar]

How do you know it wasn't?

Because Anne Taylor said Thompson had never told her that in the last hearing.

 

[SpiderFalcon]

Because Anne Taylor said Thompson had never told her that in the last hearing.

Did she say it wasn't in discovery?

 

[NextSprint]

Who knows but that would not amount to exculpatory evidence Imo. Hope others on the thread might take up your idea as I'm refraining from second guessing further on the details under seal.

No it would be a Napue violation, which would throw out the indictment IMO, if true.

 

[jepop]

No it would be a Napue violation, which would throw out the indictment IMO, if true.

I was only posting about exculpatory evidence. Will await the alleged Napue claim details which are also under seal I believe.

 

[Jurisprudence]

She's reaching more than Stretch Armstrong. The Defense has tried this case in media with their Motions and their less than "Expert" witnesses. I think they're the ones playing dirty at this point, even if it is their job to defend their client against DP charges. I hope when we do finally get the hearing on Sept 22nd, she will be forced to put up or shut up.

ALL MOO

[snipped/BBM]

First Stretch Armstrong lol. Second, I agree. The defense has been making noise about the media from the start, as the defense does in these cases. But in this case, it is the defense who has been trying it in the media, even garnering a lot of support for some crazy conspiracy theories elsewhere on the internet. I keep waiting for the state to call this out. Maybe they will do so now.

jmo

 

[10ofRods]

Hmm.. I had an idea. Maybe she's going to try and challenge the rules on what qualifies for CODIS?

It's an interesting conundrum. Clearly, we don't want to exclude relevant samples due to poorly drawn or outdated rules, but I also understand why labs can't test every sample present at a heavily used location. The backlog for testing of all kinds would quickly stretch into years. Given the size of parties held at King Road, the house could almost be considered a public place. With that in mind, I understand why the rules exist.

Last night, I was reading a book by a very well known author and the crime scene was a market. The lead forensic person mentioned there were enough DNA samples to keep the lab busy for years. I was disappointed that such a highly regarded author didn't even touch on how that really works.

TL;DR (skip to the link below for a simple overview of how CODIS works).

It's complicated and as a writer, I feel self-conscious in trying to explain such a thing here on WS, but I'll give it a go. I have edited and re-edited this for brevity - there's so much more, but it's already long.

CODIS isn't a lab. It's a database. The FBI has strict (legal and academic) rules about which samples are allowed to be put against the DB as well as which markers they use for this system, as we've discussed here before. WIDENING the way CODIS works would result in many, many people being investigated just because they were once in a house or were involved in the production of something - like the components of a house.

It would be a wild goose case, at the very least and VERY expensive, and disruptive to the lives of many people. Why stop at CODIS? CODIS wouldn't identify many, many murderers or violent criminals - those who have yet to be caught would not be in CODIS.

It would be unconstitutional, I believe, to run every single "sample" at every crime scene and the entire definition of "crime scene" would gradually change.

As it stands, people who are known to have been at a crime scene (investigators, roommates, neighbors, etc) are asked to give samples and the profiles are run for a process of elimination. Investigators have no choice about giving their DNA, but everyone else voluntarily give a sample (to match to crime scene samples). This is already a lot of labwork and a lot of samples. Individuals who are asked to give samples but don't are usually looked at more carefully. And it is those individuals who COULD be submitted to CODIS - except that CODIS rules (on which there are many pages of explanation) do not permit that.

CODIS is not designed for such massive use - it only matches DNA to felons, people in "the system" of prisons. By this, I mean it's not technically capable of doing this type of work - NOR does CODIS provide complete matches most of the time - but tracking down a felon is usually pretty easy if is a complete CODIS hit (which is not the same as a full profile - ever - because CODIS doesn't look at full profiles for matches, only.a carefully selected set of SNPs). CODIS also has a very clear notion of which SNP's are reliable for personal identification - of anyone; it is not about identifying typical citizens anywhere in the world - but about matching to US felons already in the prison system.

In this case, there are two "murder rooms," but also an entire house that was roped off as a crime scene. And several cars. I'm guessing they found fragments of hundreds of samples of DNA. CODIS wants the DNA it looks at to come from a carefully defined place within the crime scene (like a knife sheath - not the kitchen sink faucet handles, unless investigators believe the murderer used the sink).

The sample on the sheath was presumed to belong to the sheath owner/user (which is common sense). But investigators also knew there was a man matching DM's description (so NOT excluded) who lived within range of the murders, was a criminology student, and drove a white Elantra. IMO, they already had the name Kohberger on their list. No match turned up in CODIS - but a close match named Kohberger turned up through IGG. That lead to the trash collection at the parents' house.

Doing this type of investigation for EVERY stranger sample at a crime scene would result in many people's lives upturned or ruined, a severe slow-down of every single crime investigation, and of course, then Defense attorneys would claim it was an overly narrow, tunnel-vision focus on DNA to the exclusion of other obvious clues. This was a "party house," but it is not common sense to believe that there was a party that night (there wasn't) and that these murders were part of a typical party murder scene. It is clear from video that KG and MM were at a bar downtown and then at the food truck and then took a ride home then played on their phones and dialed up KG's former boyfriend, co-parent of Murphy. There was no party. KG's boyfriend had to be cleared (no point in using DNA databases there, at all - as it is expected that his DNA would be in the house - CODIS is not meant for that purpose).

And if Kohberger had NOT left the sheath, then all of this running of random people's DNA and upturning their lives by putting it through various databases would have been for naught. Because as far as we know, he left no other DNA at the scene - because he had carefully used everything he knew to try and avoid that - and almost did. Best laid plans of mice and men, etc.

I am guessing that many people gave DNA voluntarily to LE, who called for people to do so IIRC. I am guessing the nearby neighbor who said he'd been to the house gave his DNA. They also asked owners of white Elantras to voluntarily come forward and be cleared - and many did. But not that guy in Pullman (whom a WSU campus policeman had already noticed as owning a white Elantra and of course his white Elantra was registered to legally park at WSU housing - easy and standard thing for campus police to do).

LE in two states and presumably at the Federal level were all waiting impatiently to see if Chief Frye's appeal to white Elantra owners who had been out and about that night...to come forward. Many did. At least one did not. And then that Elantra owner's DNA shows up on a crime element (the sheath). Not just on a doorknob. So he did not come forward about his white Elantra (even though it's clear that everyone in his program was talking about these murders) but now admits he was indeed out driving it around that night.

I see why they submitted it to CODIS (probably not with any optimism - because I believe they already had Kohberger on their radar and knew he did not have a felony record; his misdemeanor theft conviction as a teen would not put him in CODIS - but the FBI could still see that conviction if they wished to - not sure it got to that point at the time).

Since the entire CODIS system is complex, there are many FAQ pages for LE to use, Vermont has a good one:

CODIS (Combined DNA Indexing System) | Vermont Forensic Laboratory

vfl.vermont.gov

It explains what can be used in CODIS pretty clearly, IMO.

 

[jepop]

I've gone through the pain of reading the CODIS submission rules; "qualifying for CODIS" in my view really only addresses the sample level of the DNA found, as in "Is there enough data in the sample taken to be run in CODIS?"

Having read up myself (prior thread had many posts and links and exchange) I view it as more complex than that but ofcourse MOO. The prosecution will know it's reasons and these will be available to the D Imo. It's been a while though so a link to the CODIS submission Rules you cite here would be useful for the thread. Please post the link if you have it handy. TIA.

 

[Jurisprudence]

How do you know it wasn't?

Agree. Recall the first motion to compel? [Paraphrasing] Judge, the state is not giving us what we asked for. Make them.

The State's response [Paraphrasing] The statements made to this court in that motion are simply not accurate, judge. To date we have provided thousands of pages of documents, video surveillance, terabytes of data, etc. With respect to any information not yet turned over either: 1) We don't have it back from the lab; 2) it does not exist; and/or 3) the defense is not entitled to it under the rules. (Discovery doesn't mean the state has to do the defense's work for them).

So, I agree with you. There's a documented pattern here imo of the defense putting things out into the public realm that intimate that the state has been less than above-board in their case and in the ongoing investigation. Unfortunately, far too many people read the state's response wrong imo. They read it as the state only turning over all of that evidence just then in response to AT's motion to compel as opposed to seeing it for what it said. Namely, that the evidence was produced, the defense is in possession of it, and the defense allegations are therefore not true.

jmo

 

[NextSprint]

Agree. Recall the first motion to compel? [Paraphrasing] Judge, the state is not giving us what we asked for. Make them.

The State's response [Paraphrasing] The statements made to this court in that motion are simply not accurate, judge. To date we have provided thousands of pages of documents, video surveillance, terabytes of data, etc. With respect to any information not yet turned over either: 1) We don't have it back from the lab; 2) it does not exist; and/or 3) the defense is not entitled to it under the rules. (Discovery doesn't mean the state has to do the defense's work for them).

So, I agree with you. There's a documented pattern here imo of the defense putting things out into the public realm that intimate that the state has been less than above-board in their case and in the ongoing investigation. Unfortunately, far too many people read the state's response wrong imo. They read it as the state only turning over all of that evidence just then in response to AT's motion to compel as opposed to seeing it for what it said. Namely, that the evidence was produced, the defense is in possession of it, and the defense allegations are therefore not true.

jmo

Was that theory not proven incorrect last week when the Prosecution tacitly admitted that further evidence might be available but is in the FBI's hands, and thus on a technicality they didn't have it to turn over? Word games I know, but words matter.

 

[Jurisprudence]

Was that theory not proven incorrect last week when the Prosecution tacitly admitted that further evidence might be available but is in the FBI's hands, and thus on a technicality they didn't have it to turn over? Word games I know, but words matter.

Imo, no. I'm going back to the first motion to compel. Their position as I understand it at that time was that the IGG evidence fell into Bucket 3: the defense is not entitled to that information.

jmo

ETA same position as with the training reports of the rookie officers.