Sorry--this will be long! In this latest batch of documents we see the Defense filed an affidavit from Sy Ray regarding these Timing Advance Records. It's signed 25 March, which is after the prosecution filed the certificate from AT&T--so they're going forward with this claim that the prosecution is hiding these records.
In the State's MIL RE: AT&T Timing Advance Records, the state asked the court to prohibit the defense from making references to the absence of Advance Timing Records for BK.
The State brings this motion based on defense counsels’ repeated references to the alleged existence of AT&T Timing Advance Records related to Defendant’s cell phone.
Any statements or inferences by defense counsel or their witnesses that there is additional evidence that could have been provided, or was not provided, is a mischaracterization of the evidence and should not be allowed.
The defense responds with their Objection to the State's MIL RE: AT&T Timing Advance Records. The defense says that while it's true that Timing Advance Records were not produced by AT&T Global Legal Demand Center until May 2023, the state is misleading the court by what it leaves out--Timing Advance Records
were available through a different legal compliance department in November and December of 2022. And the proof of that is in the discovery--there were Timing Advance Records for two of the victims and one person of interest for those time periods.
The state responded with their Reply to Objection to State's MIL RE: ATT&T Timing Advance Records.
Regarding AT&T, before June 2023, AT&T retained timing advance records for seven (7)days. These records were not routinely provided in response to legal demand prior to June 2023. After June 2023, AT&T started providing these records pursuant to legal demand and began retaining timing advance records for thirteen (13) months.
In this case, the homicides occurred on November 13, 2022. Bryan Kohberger was identified as a suspect December 19, 2022. Search warrants for his AT&T records were executed on December 23, 2022. At this point, timing advance records were not available for Bryan Kohberger’s phone to cover the relevant time period - November 13, 2022. Despite Defendant’s repeated assertions, the fact of the matter is that AT&T did not provide Timing Advance Records to law enforcement for Bryan Kohberger’s phone.
So the state says that while they were able to obtain these Timing Advance Records for two of the victims and one other individual, by the time BK was identified, it was past the 7 day retention period and they were not able to obtain his Timing Advance Records. They attached certification of this from AT&T.
AT&T did not provide Timing Advance Records for phone number 509-592-8458. Timing Advance Records were only available if requested within seven (7) days of the specified time frame. Timing Advance Records were not included in AT&T records responsive to the referenced Search Warrant because more than seven (7) days elapsed between November 13, 2022, and the date of the Search Warrant December 23, 2022.
The state asked the court again to issue an order prohibiting the defense from making reference to absence of Timing Advance Records for BK.
So now we come to the defense filing an Affidavit in Support of Defendant's Objection to the State's MIL RE: AT&T Timing Advance Records. Sy Ray says that he has first hand knowledge that the ATT&T GLDC is one way to obtain the records and first-hand knowledge that
there is another way to obtain them. He says that on December 23, 2022, the FBI sent a communication directly to ATT&T specifically detailing their request for BK's records and there is no reason to believe ATT&T would not respond to this request. He says in his expert opinion ATT&T Timing Advance data did exist for BK's phone in 2022 and points out investigators ability to obtain this data in 2022.
He doesn't address the 7 day time frame that existed in 2022
at all.
He also says,
"The current motion is a deliberate misrepresentation to the court to further conceal false statements used to obtain probable cause against the defendant and conceal exculpatory evidence from discovery." So is
this the exculpatory evidence the defense claims Sy Ray has? Timing Advance Records that he's never even seen (because the prosecution says they don't exist)?
He also says,
"In my nearly thirty years of working with and for prosecutors all over the United States, I have never witnessed such a deliberate attempt by prosecutors to mislead the court on evidence in such plain sight."
Again--he never mentions the 7 day thing, even though this was signed after the prosecution submitted their motion with the ATT&T certification. I think this is going to be addressed at the 9 April hearing so it should be interesting.
JMO
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