4 Univ of Idaho Students Murdered, Bryan Kohberger Arrested, Moscow, 2022 #79

[Twistinginthewind]

This is so darned heartbreaking. All the loss is overwhelming.

It really is, well put, @Helechawagirl It is soooo heartbreaking and overwhelming... the only thing that could possibly make this tragedy the least bit better in some small way, will be justice for Xana, Maddie, Kaylee, and Ethan = their murderer will not go unpunished. Holding on for the wheels of justice to crunch them down to dust. JMO

 

[schooling]

This is in today's Daily Mail, FWIW:

VIDEO: Blood possibly found in Bryan Kohberger's bedroom

VIDEO: Newly released Idaho murder case court documents reveal investigators discovered traces of blood during search of the suspect's apartment

www.dailymail.co.uk

Interesting take/spin on the documents. It was written by an actual journalist (the L.A. beat reporter for the Daily Mail). She's also a reporter for a local news outlet.

I'm going to contact her about her sources, but in the past, I've found her trustworthy.

IMO.

(Article says the the red stains were tested and presumed positive for blood in BK's apartment and were therefore sent for further analysis). I don't know what to make of it. Seems it would be BK's own blood, given the locations, although who knows?

IMO.

Thanks for sharing. I like her analysis. But I can't completely reconcile her line of thinking.

Someone who has intimate knowledge of law enforcement procedures (which she mentions multiple times) knows that a padlock is not going to stop police from monitoring it while they wait for their warrant to arrive. And that storage area was explicitly linked to him via the apartment building.

I believe Kohlberger was fully prepared for the possibility that LE would come busting down his doors on Sunday afternoon or night. And his only chance to beat any case was to immediately/completely get rid of the murder weapon and clothing.

 

[Helechawagirl]

Does anyone recall if the tox screens came back on the victims yet?

 

[Deleted member 39678]

Does anyone recall if the tox screens came back on the victims yet?

What importance would that be?

 

[Twistinginthewind]

Does anyone recall if the tox screens came back on the victims yet?

No, nothing has been published on that. If I'm not mistaken, those results would fall under the nondissemination (gag) order, and wouldn't be disclosed if and/or until it comes up at trial, IMO.

 

[Deleted member 39678]

I was looking at the Amazon search warrant related to the KA-BAR knife and sheath and noticed that it only goes back to January 2022. What if BK purchased the knife and sheath from Amazon before that date? Seems kind of arbitrary.

January 1, 20222 to present:
1. Ka-Bar KA1217S, USMC Fighting Knife Sheath;
2. Ka—Bar Full Size USMC Straight Edge Knife

https://www.insideedition.com/sites/default/files/inline-files/Amazon_1.pdf

 

[U.N. Known]

Thanks for sharing. I like her analysis. But I can't completely reconcile her line of thinking.

Someone who has intimate knowledge of law enforcement procedures (which she mentions multiple times) knows that a padlock is not going to stop police from monitoring it while they wait for their warrant to arrive. And that storage area was explicitly linked to him via the apartment building.

I believe Kohlberger was fully prepared for the possibility that LE would come busting down his doors on Sunday afternoon or night. And his only chance to beat any case was to immediately/completely get rid of the murder weapon and clothing.

From the article "It appears that investigators considered the possibility that a storage closet would be a convenient place to temporarily stash the alleged murder weapon or the clothes police believe the suspect wore at the time of the murders. There is no indication in the documents that Kohberger did either of these, but law enforcement is likely running down that lead. "

If I recall, after seeing the condition of the storage unit, LE didn't even bother searching it. Either it's very small or so clearly unused, that they didn't want to spend time looking into it. That being said, I'm interested in just how unused it appeared that they didn't bother. It seems that photos of it being of little use should have been taken.

 

[Sister Golden Hair]

From the article "It appears that investigators considered the possibility that a storage closet would be a convenient place to temporarily stash the alleged murder weapon or the clothes police believe the suspect wore at the time of the murders. There is no indication in the documents that Kohberger did either of these, but law enforcement is likely running down that lead. "

If I recall, after seeing the condition of the storage unit, LE didn't even bother searching it. Either it's very small or so clearly unused, that they didn't want to spend time looking into it. That being said, I'm interested in just how unused it appeared that they didn't bother. It seems that photos of it being of little use should have been taken.

Did Bryan Kohberger Clear Out Apartment Before Police Search?

Assistant Chief Dawn Daniels of the WSU Pullman Police Department describes the largely empty apartment in a report filed after she and other officers were sent to collect evidence just hours after Kohberger's arrest in Pennsylvania on December 30.

www.insideedition.com

 

[Sister Golden Hair]

https://www.idahostatesman.com/news/local/crime/article275077711.html

Attorneys prosecuting and defending Bryan Kohberger have filed subpoenas requiring documents be turned over and witnesses testify in the Moscow student homicides case. But the public is not privy to where the legal orders were issued and what evidence they’ve unearthed — at least not yet. So far, at least one witness and one of Kohberger’s former employers have been served with subpoenas, according to court and public records obtained by the Idaho Statesman. The court-issued legal demand compels the recipient to follow the order or risk contempt of court, which can entail jail and fines....

Under Idaho law, however, attorneys can request a subpoena without identifying the recipient and have it signed by a clerk. Like a blank check, the attorney must add the recipient’s name before it is served, per Idaho code. “There’s no explanation when you are getting subpoenas issued,” Elcox said. “There’s nobody looking over your shoulder, a checks and balances: ‘What and who and why?’ You say, ‘I need these subpoenas issued, please and thank you,’ and you’re on your way.”...

Magistrate Judge Megan Marshall of the 2nd Judicial District Court in Latah County is presiding over the Kohberger case. She partially denied a Statesman records request for all subpoena-related filings from either the Latah County Prosecutor’s Office or Kohberger’s defense, citing those subpoenas issued in closed-door proceedings, and out-of-state witness filings, like the one the defense obtained for the surviving roommate....

Through the discovery process, the prosecution’s subpoena records should otherwise be available to the defense. “They don’t get to play hide the ball with the defense,” Elcox said. “So the defense is getting the information anyway, and it’s more of a way to strategically keep it out of the public eye, at least for the time being.”


Read more at: https://www.idahostatesman.com/news/local/crime/article275077711.html#storylink=cpy

 

[Nova]

This doesn't sound logical to me. Do you have a source/link so I can read more on this as it relates to the PH? Discoverable items are discoverable. The prosecution can't hold back items while awaiting information about the defense's strategy to make a determination of what is and isn't exculpatory at this point in the process. If you have information to the contrary, please provide a source as this contradicts my understanding of the process....

<modsnip> If the prosecution doesn't determine what, if anything, is exculpatory, the DA would have to turn over ALL evidence so that the defense could make that determination. This would put the prosecution at a ridiculous disadvantage.

...I disagree that the DA is supposed to consider defense strategy in determining evidence that's discoverable (with the exception of certain things that aren't discoverable unless used at trial, though that does not apply to the things listed in the motion to compel). I haven't seen any language in the law (much of which has been posted in this thread) that suggests the state gets to determine this with regard to items listed in the motion to compel. IMO, it's nonsensical because the DA doesn't know what the defense's investigator supposedly found and at this point, doesn't even know what strategy the defense is using....

<modsnip> There are only so many "affirmative defenses" possible. The prosecution can recognize evidence of self-defense, insanity, etc.

...This forum is for opinions. IMO, there is no reason the turning over of notes should take this long. I never claimed to know how long it takes. If I did, I would get rid of the IMO and supply a link instead.

All above MOO....

And my point is that neither you nor I have any way of forming an actual opinion, since we have no way of measuring how long it takes to collect evidence and put it in a form suitable for discovery to the opposition. We're just making idle claims at this point.

And what, in the end, does it matter? Whether the prosecution staff is slow or fast tells us nothing about the alleged guilt of BK.

 

[Nova]

Consider the defense strategy in the case of Mollie Tibbetts’ murder: “the Real Murderers” kidnapped our client and forced him to drive them to where they grabbed Mollie and killed her. That’s why he knew where her body was.”

Is any DA really supposed to imagine that defense strategy?

Well, as jepop has shown us, the DA in the present case has ASKED for the defense's strategy, so that is one solution.

I don't think the DA has to guess at every possible defense claim. There are certain "affirmative defenses" that are allowed by law, and, absent an explanation from defense counsel, the DA knows what those defenses might be (self-defense and insanity are the best known).

ETA: I am still not a lawyer. I'm sure that much is obvious to all.

 

[jepop]

[RSSBMFF]

If I recall, after seeing the condition of the storage unit, LE didn't even bother searching it. Either it's very small or so clearly unused, that they didn't want to spend time looking into it. That being said, I'm interested in just how unused it appeared that they didn't bother. It seems that photos of it being of little use should have been taken.

RSBMM: After getting the warrant, via phone, they searched the unit.

It's a big doc but the info is in below.

https://int.nyt.com/data/documenttools/kohberger-search-records-from-wsu/6e5a6ce24a286a06/full.pdf

ETA: snip of OP post and bolding.

ETA: Re bolded last sentence, not sure if you are suggesting that photos were not taken? If so, I'm not sure we know either way, but I would assume a competent search team would do so. But that is MOO.

 

[Helechawagirl]

What importance would that be?

Might account for why some victims didn’t fight back. Might account for the delay in calling 911.

 

[U.N. Known]

RSBMM: After getting the warrant, via phone, they searched the unit.

It's a big doc but the info is in below.

https://int.nyt.com/data/documenttools/kohberger-search-records-from-wsu/6e5a6ce24a286a06/full.pdf

ETA: snip of OP post and bolding.

ETA: Re bolded last sentence, not sure if you are suggesting that photos were not taken? If so, I'm not sure we know either way, but I would assume a competent search team would do so. But that is MOO.

Thanks for the link. There are so many documents, articles, etc. at times, I cannot recall which document houses which information.

RE statement in bold. No, I am not suggesting that they were not taken, just making a statement. I probably should have added an IMO, though.

 

[Deleted member 39678]

Might account for why some victims didn’t fight back. Might account for the delay in calling 911.

Interesting. Now I'm trying to figure out how that would help either the State's case or the defense.

 

[roche.analisa]

Thanks for the link. There are so many documents, articles, etc. at times, I cannot recall which document houses which information.

RE statement in bold. No, I am not suggesting that they were not taken, just making a statement. I probably should have added an IMO, though.

Making sure you know about the media thread. It's linked on the first page of each discussion.

 

[10ofRods]

Does anyone recall if the tox screens came back on the victims yet?

All records in this case are under the gag order. All of the autopsy material was redacted from the PCA. So I would assume the tox screens are part of the record at this point in time.

We have to presume tests were done, but they are under seal (and probably irrelevant for the public to know unless the defense decides to make it an issue, which they may try to do).

IMO.

 

[10ofRods]

Well, as jepop has shown us, the DA in the present case has ASKED for the defense's strategy, so that is one solution.

I don't think the DA has to guess at every possible defense claim. There are certain "affirmative defenses" that are allowed by law, and, absent an explanation from defense counsel, the DA knows what those defenses might be (self-defense and insanity are the best known).

ETA: I am still not a lawyer. I'm sure that much is obvious to all.

I do think Idaho is a state where it is required, pre-trial, for the defense to state its affirmative defenses, so you are correct.

But even in states without that requirement, it's still embedded in legal procedure that the defense has to establish its defense pathways (that's one of the main points of a PH, after all). They can change their strategies all the way up until trial (and in some cases, during trial). In some states (and I think Idaho is one of them), no new evidence can be introduced beyond a certain pre-trial point (14 days, 30 days, whatever the statute says). The only way to make an exception is to bring a separate motion to the court and have a really good reason for new evidence.

Not a lawyer either, but 20 years of being a paralegal and 25 years of working in forensics and as a legal consultant (my consulting is usually part of "work product," although I have had to write affidavits as well).

I would assume that this defense has not yet settled on its strategy (isn't going to be easy). Getting *any* evidence thrown out at this point in time might be a goal. But at some point, in most jurisdictions, yes, the defense has to settle on a strategy (many states do not permit a general SODDI defense - I believe Idaho is also one of those). If one gives it some thought, it's pretty obvious how that would throw a monkey wrench into discovery matters.

IMO.

 

[Sister Golden Hair]

I'd be very curious to see the link about Idaho's "affirmative defense" requirements re timing prior to trial, but regardless of that,

IMO it's important to understand what an "affirmative defense" is...

An affirmative defense is, "yes, I did it, but...", and states have different ones depending on the law; an affirmative defense is not the same as "Not Guilty". (Affirming = yes; defense = here's my reason).

In other words, an affirmative defense is a type of excuse or justification of the allegations, and would allow BK to admit, but ...

In BK's case, unless there are circumstances yet to reveal (and that very well could be the case), it seems an affirmative defense is unlikely.

"Not Guilty" seems the more likely tack here imo, and the defense will not have to share their legal strategy on how they plan to get to "Not Guilty". "Not Guilty" will just be chipping away at BARD one way or another (experts, exculpatory evidence, the generic "LE zeroed in too early", etc.)

Neither AT nor the prosecution are required to share their legal strategy. I.C.R. 16. Discovery and Inspection | Supreme Court

I wasn't going to post until the PH starts, but I thought it was important to share the definition of Affirmative Defenses so that it was handy for reference.

I don't mean to nitpick about legal definitions, but esp in this case, the "Affirmative Defense" is way gone from "Not Guilty", and it seems important to understand the difference, so sharing with those who may not know.

affirmative defense

www.law.cornell.edu

This explains it pretty well in terms of theory: 5.1 Criminal Defenses – Criminal Law

affirmative defense​

An affirmative defense is a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts. The party raising the affirmative defense has the burden of proof on establishing that it applies. Raising an affirmative defense does not prevent a party from also raising other defenses.
Self-defense, entrapment, insanity, necessity, and respondeat superior are some examples of affirmative defenses....
There is some dispute as to whether certain defenses are actually affirmative defenses, or just standard defenses. For example, in Florida self-defense is an affirmative defense but in Ohio, it is not.

edited for formatting and clarification.

 

[Sister Golden Hair]

Also, re the PH, during that hearing, the Prosecution must meet probable cause based on every material element. Those elements are neatly listed here:

Criminal Jury Instructions | Supreme Court

isc.idaho.gov

b) Probable Cause Finding. If the magistrate finds that a public offense has been committed and that there is probable or sufficient cause to believe that the defendant committed the offense, the magistrate must immediately require the defendant to answer in the district court. The finding of probable cause must be based on substantial evidence on every material element of the offense charged. ...

Nothing in this rule prevents the admission of evidence under any recognized exception to the hearsay rule of evidence (Here are the exceptions: I.R.E. 803. Hearsay Exceptions; Availability of Declarant Immaterial. | Supreme Court).

The defendant is entitled to cross-examine witnesses produced against the defendant at the hearing and may introduce evidence in the defendant's own behalf. ...

Here are the elements clipped from the jury instructions (cheat sheet, as I learned to call them) below, and I find it interesting to take those and apply them to the evidence we know exists to see what the prosecution will use - kind of an interesting challenge since the defense can cross on what is provided, it seems the prosecution will want to present strategically imo.

ICJI 704A FIRST DEGREE MURDER – MALICE AFORETHOUGHT (and easy way to keep the elements in mind)
In order for the defendant to be guilty of First Degree Murder with malice aforethought, the state must prove each of the following:

1. On or about [date]

2. in the state of Idaho

3. the defendant [name] engaged in conduct which caused the death of [name of decedent],

4. the defendant acted without justification or excuse, (my own note: so no affirmative defense)

5. with malice aforethought, and

6. [the murder was perpetrated by means of poison];

[or]
[the murder was perpetrated by lying in wait];

[or] THIS ONE:
[the murder was a willful, deliberate, and premeditated killing. Premeditation means to consider beforehand whether to kill or not to kill, and then to decide to kill. There does not have to be any appreciable period of time during which the decision to kill was considered, as long as it was reflected upon before the decision was made. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not premeditation];