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

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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
Gotcha, though in the latest IGG hearing it basically became clear that they "weren't entitled to it because the state didn't have it", rather than not entitled to it under a more substantive reasoning.
 
Gotcha, though in the latest IGG hearing it basically became clear that they "weren't entitled to it because the state didn't have it", rather than not entitled to it under a more substantive reasoning.

I don't think they are entitled to it under the rules - despite the state not being in possession of it if that makes sense. Now, they may be entitled to it via Order of the court. JJ tipped his hand a bit stating it's best for all involved to err on the side of caution.

This is opinion only. The IGG evidence is merely a tool (similar to a lie detector test). It's generally not admissible, the state had no plans to present it, and accordingly, it is not subject to production. But now they will have to produce it and introduce it if the judge rules the defense is entitled to obtain it. A slippery slope.

jmo

ETA: Check out this case. I saw it a few days ago. WA not Idaho. Not exactly on point but interesting all the same though since this is AT's goal imo (exclude the actual DNA as fruit of the poisonous tree). State of Washington v. Gary Charles Hartman
 
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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.
It is likely because they had perpetrator DNA on part of the murder weapon. That is the DNA that qualified. AT is aware the rule of CODIS DNA qualification.
 
I don't think they are entitled to it under the rules - despite the state not being in possession of it if that makes sense. Now, they may be entitled to it via Order of the court. JJ tipped his hand a bit stating it's best for all involved to err on the side of caution.

This is opinion only. The IGG evidence is merely a tool (similar to a lie detector test). It's generally not admissible, the state had no plans to present it, and accordingly, it is not subject to production. But now they will have to produce it and introduce it if the judge rules the defense is entitled to obtain it. A slippery slope.

jmo

ETA: Check out this case. I saw it a few days ago. WA not Idaho. Not exactly on point but interesting all the same though since this is AT's goal imo (exclude the actual DNA as fruit of the poisonous tree). State of Washington v. Gary Charles Hartman
Yeah no standing because constitutional rights aren't vicarious, pretty straight-up by the looks of it. Interesting though the Justices went out of their way to say:

"But the legislature could adopt statutory restrictions and the companies that run consumer DNA databases could adopt policies limiting law enforcement access to genetic information in those databases without a warrant. Indeed, GEDmatch did just that in 2019 after the investigation at issue in this case."
 
JJ tipped his hand a bit stating it's best for all involved to err on the side of caution.

And, (thinking out loud here only) what does that look like exactly?

According to the state, if more than the few notes that the FBI took is compelled by the court to be produced, the court will actually be requiring the feds to resubmit the sample, re-do the tree, download info from the server (which for 4A privacy reasons I'm not even sure is legal) just so they can hand over to the defense information they deemed moot?

jmo
 
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Yeah no standing because constitutional rights aren't vicarious, pretty straight-up by the looks of it. Interesting though the Justices went out of their way to say:

"But the legislature could adopt statutory restrictions and the companies that run consumer DNA databases could adopt policies limiting law enforcement access to genetic information in those databases without a warrant. Indeed, GEDmatch did just that in 2019 after the investigation at issue in this case."

And, some have. Look at Maryland for example. MD Crim. P. § 17-102

But to my knowledge, Idaho has no such restrictions to date.

MOO
 
In my experience it's not the habit of judges to give loose advice, particularly not in appeal rulings.

I don't understand the post. Are you stating that the WA appellate court is urging by this ruling for the WA legislature to adopt parameters and guidelines? Maybe so. But, they didn't legislate from the bench imo and install/mandate these requirements for them (in lieu of legislation). And, assuming parameters and guidelines were enacted by the Idaho legislature, the use of IGG would very likely still be permissible in this Idaho case imo. (For example, if they had been required to obtain a sign-off, I think they would have gotten it. And if a warrant would have been required, I think it would have issued.)

All jmo
 
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I don't understand the post. Are you stating that the WA appellate court is urging by this ruling for the WA legislature to adopt parameters and guidelines? I think so. But, they didn't legislate from the bench imo. And, assuming parameters and guidelines were enacted in Idaho, the use of IGG would very likely still be permissible in this Idaho case imo. (If they had been required to request a sign-off, I think they would have gotten it jmo)
Yes I guess that's what they're hinting at. I don't read anything from that case into the Idaho case, I just found it an interesting read, and as you know justices are extremely clear and minimal in appeal rulings, so found the wider "companies could XYZ" etc. interesting; as if they were suggesting what they'd like to see politically, which is unusual.
 
Because Anne Taylor said Thompson had never told her that in the last hearing.
Yes, AT did say that. However, Thompson responded to that quite obviously annoyed, stating "Your honor, she knew that. She is acting as if this is the first time she is hearing it, which is not the case". Hopefully I will be back with that time stamp for you before my edit meter runs out
 
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.
IMO, based on what we know today, I'm not aware of any evidence that the prosecution is trying to mislead anyone about the DNA evidence, or "spin" it as you say.

I know we've all discussed to death our amazement that only 3 unidentified samples were found, so I won't go there again. I also don't believe we know whether the unidentified samples didn't meet the scientific requirements to be uploaded, or whether they didn't meet the legal requirements. I have seen from multiple states that CODIS only accepts results from people generally believed to be suspects. So, depending on where these samples were found, it may not have been possible to meet that legal hurdle of generally believing the samples to be from suspects.

For it to be exculpatory, it has to either support the defendant's innocence, or provide scientific evidence inconsistent with the person accused. Being found somewhere in the house doesn't do either one, IMO. If it had been found on the sheath, it might suggest a second perpetrator but even that doesn't necessarily make it exculpatory for BK. At least IMO.

 
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:


It explains what can be used in CODIS pretty clearly, IMO.
Thank you. And your effort was not wasted. I read every word. :)
 
The Pervis Payne case is a great example of where "unknown male DNA" was found at a crime scene, but someone else was convicted and spent a very long time in prison, and was almost killed by the state. And I'm sure at the time of conviction and trial most people would have believed he was guilty, because the prosecutor didn't give the whole picture.

IMO cases like this (there are others) show why it's so darn important to push the evidence as far as it can possibly go. It took Payne 33 years on Death Row to gain access to the same type of information AT is currently pushing for (more info about the unknown samples, where they were, what testing was/wasn't done etc.).

Of course it doesn't mean BK is innocent, but it just gives some moral weight to efforts to force Latah County to be more open now, and not in 30 years time.

 
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.
RBBM

That's interesting. I don't think I've seen documentation that the training records of rookie officers were the issue. Could you please provide a link where I can read more. TIA!
 
Ne

Never told her information that criminal lawyers already know?
Apparently Thompson never told Taylor that the three unknown male DNA samples taken in evidence by CSI didn't qualify for CODIS nor why. Obviously, if Taylor didn't know, it was not in the discovery. At least for these 3 pieces of evidence which CSI thought important enough to take, the discovery was not properly documented to show what happened after the evidence was retrieved. If you have 3 pieces of evidence, the processing of which is not properly documented, then unfortunately, that opens up the question as to what else in the discovery was not properly documented?

JMO.
 
Balthazar I cannot any source for the 1 in 20
Apparently Thompson never told Taylor that the three unknown male DNA samples taken in evidence by CSI didn't qualify for CODIS nor why. Obviously, if Taylor didn't know, it was not in the discovery. At least for these 3 pieces of evidence which CSI thought important enough to take, the discovery was not properly documented to show what happened after the evidence was retrieved. If you have 3 pieces of evidence, the processing of which is not properly documented, then unfortunately, that opens up the question as to what else in the discovery was not properly documented?

JMO.
That is what I am saying.
Criminal defense lawyers such as AT know the CODIS threshold, and consequently that the other DNA did not reach that criteria.
I see AT using the sealing to her disengenuous adbvantage.
 
Thank you. And your effort was not wasted. I read every word. :)

Thank YOU for the feedback. If I had footnoted that with FBI links, it would have taken me forever - but CODIS is designed for the function it serves and there's no way the FBI is going to change it into a free-for-all.

IGG companies fall into three kinds: ones specifically aimed at forensics (Othram, Parabon); ones where clients opt in if they allow forensic use of their data (GEDMatch) and ones where LE has to have a subpoena to get any data at all and all users are automatically opted into forensic privacy (23andme and, I think, Ancestry - although Ancestry may be starting an opt in, not sure). I am not sure of GEDMatch's policies on LE uploading suspect profiles - they may not have had such a policy until recently, if they do have one.

Do any of these places have a way of making sure the actual DNA-producer is the uploader? Nope.

These are all businesses, so far deemed legally incorporated and running in the U.S. Most places do not have laws against DNA collection by using trash or...other means (offering a beverage in the interrogation room, following someone and asking a restaurant to test a coffee cup after the person has gone, etc).

People who think every bit of DNA in a scene should be tested are asking for the U.S. to supply way more DNA sequencing machines to labs everywhere - and once the DNA Is collected (it will be yours, mine and everyone's - as DNA is beginning to be used in less serious crimes than murder), it will be in someone's data base. It's fascinating to me that most people react negatively to the idea that LE would have THEIR DNA just because there was...a school shooting or a murder at the local restaurant.

Naturally, LE does not want to have 1000's of DNA leads per case - so they are going to continue to go by the book of forensic procedures (which follow scientific, legal and common sense and are remarkably the same throughout the U.S). It's pointless and endlessly investigable. I figure they likely had 100 partial profiles from 1122 King Road (conservative estimate). After IDing them, what then? Go ask them questions? Collect DNA from their cars? Test their car door handles and then run everyone who has touched the car?

The evolution of all this will be very interesting over the next decades. I don't see a future wherein we have more money for more labs (the opposite - and there's a shortage of trained lab workers as it is, with long delays in many places).

It's best to use time-honored, Sherlock Holmes-like investigative techniques and then hope for DNA confirmation. But personally, I sure hope that absence of DNA is not deemed evidence of innocence, either. I think some people think that way (not most WSers, of course).

So the next phase of (self-) regulation will be all these DNA database providers. Since so many people now have their full results from Ancestry or 23, there's a whole hobby aspect to loading one's profile to every known database possible - to build out family trees and histories, to look for criminals, to look for medical issues. And just for fun. 23andme has 12 million customers worldwide (I believe 8 million just in the US/Puerto Rico). Matches between relatives go out to fourth cousins, several times removed (and further). I have something like 4000 DNA relatives (most of whom I've never met or ever heard of, mostly in the Western Hemisphere, but not all of them). Any one of them could lead to me - if they transferred their results to Othram. Or vice versa (I'm thinking of uploading to Othram next year, when I have time to mull it over).

Thanks again for the feedback!
 
Yes, AT did say that. However, Thompson responded to that quite obviously annoyed, stating "Your honor, she knew that. She is acting as if this is the first time she is hearing it, which is not the case". Hopefully I will be back with that time stamp for you before my edit meter runs out
Then he should be able to show that he has documented proof she already knows it in the discovery. If it's not in the discovery, he is in the wrong. Either the collection and processing of the 3 unidentified DNA is documented to completion or it is not. It's a very simple thing to prove.
 
RBBM

That's interesting. I don't think I've seen documentation that the training records of rookie officers were the issue. Could you please provide a link where I can read more. TIA!

Oh he granted the request much to the chagrin of many. You have followed the case pretty closely. I'm surprised you aren't aware of this. I will cite you the docket because this is basically discussed round and round in every request, every response, and was ultimately argued. In the end the state won in at least being able to have the information protected. We've been talking for weeks on here about the suspicion that the tactic may be that she was fishing for their records to come up with material to discredit them. Happy reading.

 
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