Next up, starting around 5:25:30, AT is up:
AT--"Your Honor, we're requesting the court deny the state's motion and allow us to cross-examine their expert Nicholas Ballance with regard to Timing Advance Records (TARs)."
Judge--"What evidence do you have that TARs existed, that the state cold have acquired for Mr. Kohberger?"
AT--"Well, Your Honor, specifically--"
Judge--"I read your affidavit of Mr. Ray and he seems to entirely ignore the 7 day issue. And doesn't address it."
AT--"Your Honor, his affidavit I think starts before to explain to the court some of the history about where the TARs come from. When Mr. Kohberger was identified, I'm going to jump ahead and tell you why I think I should get to ask Nick Ballance about these records. When Mr. Kohberger came to the attention of the state and they began doing search warrants for Mr. Kohberger's records on December 23rd, there were two separate search warrants for Mr. Kohberger's AT&T records and they requested TARs. And one of the pages that we gave you was the carrier request that said give us 7 days worth of TARs. There were 7 days back, at least 7 days back at that time. Those have never been produced to us. What I've learned in working with Mr. Ray is that obtaining TARs now goes through a different process than it went before. FBI agents had a way, a means, to get these TARs before they were generally available to all of law enforcement. Generally available now comes through the GLDC program and that happened in 2023."
Judge--"But he's not indicated he has any evidence that at least for the time of the murder that those would still be in existence."
AT--"We've never heard from Nick Ballance, who is FBI, and who has the back door--"
Judge--"You heard from AT&T."
AT--"You've heard from AT&T that GLDC did not produce those, these records in 2022. You've absolutely heard that from AT&T. What you haven't heard is the other way that--"
Judge--"What's the other way? I haven't heard that either. I've heard a general description and I've heard in the affidavit that he received some once and they said oh no, don't use those. I don't know if those were acquired within the 7 days. He doesn't address the 7 days. And that's a glaring, particularly given the inflammatory language in that accusations in that affidavit, it's a glaring omission.
AT--"...Your Honor, we don't even have the 7 days worth, which is what the carrier request says."
Judge--"The 7 days that he's back home?"
AT--"...Maybe."
Judge--"I'll ask the state about those, if they received those. I'm not sure their search warrants covered that time frame but--"
AT--"Your Honor, I would say that it did. And I would say their first search warrant was just a 48 hour period, it asked for TARs, but then the second warrant--"
Judge--"But you would agree there's no evidence that AT&T provided those or those were still available by the time the, Mr. Kohberger was identified."
AT--"...Your Honor, I--"
Judge--"As an officer of the court."
AT--"As an officer of the court I would like to ask Nick Ballance that and here's why. [Judge starts shaking his head] Here's why. The things that I've learned is that the 7 days is on paper. Sometimes they go back further than other days."
Judge--"What's the evidence of that, counsel?"
AT--"One evidence has been in the practice that I've learned from people that worked--"
Judge--"You're, you're giving me that testimony now?"
AT--"I'm not giving you testimony, I'm answering the court's question."
Judge--"Okay. But you've made some serious accusations against the state of hiding evidence. And yet you've provided no factual basis. Zero. That that evidence existed. For them to be able to obtain it. In December."
AT--"Your Honor, in April of, I'm sorry, it was probably by the July date that I got it, of 2024. I got records from 2022. And some other time in 2024, I think it was May, I got 3800 people's TARs."
Judge--"That would be because they were asked within the 7 days of the date they sought it. It was the tower dump from the night of the murder, asked within the 7 days."
AT--"...I understand that."
Judge--"Okay. So where's the evidence that Mr. Kohberger's TARs from AT&T were available to anybody in December? Without a prior request that they save those?"
AT--"Well, I don't know if they made a prior request that they save those."
Judge--"Well, they wouldn't, because they didn't know who he was."
AT--"You're correct, they didn't know who he was until I think about December 19th."
Judge--"Right."
AT--"Their warrant for his full scope of records, the second AT&T warrant, asked for all of the records. I haven't seen any of them. That's, even if they were just the 7 days back. I haven't seen any of them."
Judge--"What you're talking about now is a discovery issue of the 7 days that don't sound like they're particularly relevant to the murder. That's a discovery issue you can take up with the court through a motion to compel, which you have not filed. It's not an evidentiary issue in which you can lay down Mr. Ray's conspiracy theory without any evidence. At trial.
AT--"Your Honor, we have litigated this issue quite extensively throughout the course of the case. The TARs, once I understood how timing advance works, became very important. We've heard different things now than I've heard at different times in the past about this, particularly about the 7 days. That's newer information to me now. But the carrier request forms tell me I should at least have that. I want the court to know that we have had motions to compel on this very issue. We have had different bits of information--"
Judge--"But the 7 days that are after December or in December?"
AT--"No, Your Honor. Because the 7 days is something that's newer and has been brought to my attention recently--"
Judge--"--motion to compel related to TARs for November 13th."
AT--"Our discovery requests were for all of Mr. Kohberger's TARs. Our motions to compel covered all of them too. I have this carrier request now that says 7 days and I have the affidavit now that says 7 days. Those are not things that I always knew when we were litigating this issue."
Judge--"Okay."
AT--"Those are new bits of information. To me, it is a little bit problematic that there's been things that have changed and there might be records out there. Given what you have now with the affidavit with 7 days, if you imagine you didn't know that and you--"
Judge--"I understand your confusion and concern previously. What I don't understand is now. In light of the evidence, I don't understand Mr. Ray's accusations without addressing the 7 days, that he had that information when he submitted his affidavit."
AT--"He's available to testify if the court wishes for him to."
Judge--"It's his obligation and your obligation to establish that evidence of, that the state has this. And you haven't done that. His affidavit is quite extensive and he seem to ignore that issue."
AT--"Your Honor, I believe that issue is touched on with his knowledge that these kinds of records existed a long time before."
Judge--"He said that in a very general way, about that without reference to the 7 days and he supposedly received them from some FBI expert to look at for his company, and then was told not to use them. So I don't know, maybe the FBI got them in a way that they weren't supposed to at that time for all I know. He didn't name names, he didn't identify, he didn't put it into any context. The state had indicated and they provided AT&T's sworn testimony that they only keep them for 7 days. And yet he makes the accusations that he did in his affidavit without addressing that 7 day issue at all. And so I guess my point is, if you want to cross-examine the witnesses about why didn't they rely on the AT&T timing information you gotta show some factual foundation that that was available to them. By the time Mr. Kohberger was on their radar. As it relates to November 13. And I'm not seeing that is the problem.
AT--"My first question to special agent Ballance who would be the person who would've gotten these through a different channel for the FBI, would've been, did you get them? Because we heard different things along the case. Asking him the question is what I really wanted to be able to do. And that's why I oppose this motion and prepared it as I did."
Judge--"Tell you what, I'll let you ask that question outside the presence of the jury."
AT--"Thank you."
Judge--"At the time of trial."
AT--"That will satisfy me. Thank you."
