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

[NextSprint]

Also, Defense Expert Witness' background states she is, " self taught, " which is fodder for all kinds of questions .

And as the old saying goes, " coward the murderer, is where he belongs, and there he will stay. "

Law enforcement has their killer. Great job.

MOO IMO

Self taught yet a consultant for the Australian federal government, the Washington attorney general, and NCMEC. Must be good.

 

[Jurisprudence]

What do you make of this in the D's reply to the state's objection to the first (July 25th) Motion to Dismiss? Filed 22nd August.

https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/082223-Reply-to-States-Objection-to-Defendants-Motion-to-Dismiss-Grand-Jury.pdf

"First, Mr. Kohberger disagrees. Yes,the cases Counsel cited are for trial juries. However,there is simply no credible argument to be made that the State may mislead a grand jury as to thestandard of proof and rely on the Indictment it procures. Additionally, it makes little sense that adefendant deprived of his right to counsel for a preliminary hearing will doom his eventualconviction, but a defendant given a grand jury told it may indict a “ham sandwich” has no recourse.See, Coleman v. Alabama, 399 U.S. 1 (1970). To deprive the accused of a fundamental right has natural consequences. Second, Mr. Kohberger will demonstrate in a separate motion the prejudice that resulted from the erroneous instruction in this matter"

I've taken the above out of its entire context as too long to post here.

This is the separate motion pending (ie "will demontrate") I'm referring to - Imoo it has nothing to do with D's new 23rd August Motion to dismiss.. When the July 25th MtD is heard on Sept 1st, how can the judge take into account this part of D's argument made at least partially on the basis of a motion that is yet to be filed? And if it is to be filed as support for MtD number 1 prior to Sept 1, say on August 28th just by way of e.g., how would the judge deal with the lack of time for the State to respond? Moo

All that follows MOO and my interpretation only on how I read their motion

They are saying that the standard of proof wasn’t the issue b4 the court in the Edmondson case and therefore, any discussion of that point in the court’s opinion was dicta which is not binding on the district court. The argument is that because it is dicta it is not precedent. And, because it is not precedent Judge Judge is not bound by the decision and may decide the issue on his own.

I have to say her argument is crafty now that I’ve read it in full since if it is true that the text is determined to be dicta only, the district court she is before right now does have the power to decide this issue the other way if it is so inclined to do so. But, she’s splitting hairs here imo and I don’t think it should be successful (but we don't know if it will be successful since the judge affords great deference to the defense).

Because of her filing however, the state now has to respond (again). Imo the state needs to argue that the discussion of standard of proof is in fact not dicta but rather it is ratio decedendi (it is the reasoning, underlying analysis, and the rationale for coming to the decision they came to) and therefore it is binding.

In other words, a discussion of the standard of proof, and the assessment that legal propositions do indeed hold probable cause to be the same standard of proof whether the defendant is charged by indictment or after presentment and a pc hearing, was necessary to their underlying analysis of his equal protection claims. What a waste of time, money, and judicial resources.

jmo

 

[Jurisprudence]

I don't think there's a chance that the Defense will be successful in getting the GJ Indictment dismissed. But, in the worst case scenario they can turn right around and impanel another GJ or go the route of Preliminary Hearing. They have plenty of time as they aren't bound by BK's right to a speedy trial anymore.

BK isn't going anywhere. I wonder how he is getting along in jail? He's separated from other inmates, but does he prefer that solitude? I think he does.

MOO

Imo she's also making this argument too - stating that the judge has the power to order it not be resubmitted but rather that he order a preliminary hearing.

When the Idaho Supreme Court decided Edmonson they adopted the position espoused by the United States Supreme Court in Gerstein.

Ironically, the defendant in Edmonson wanted a preliminary hearing too - and knowing (or believing) that challenging the standard of proof was not going to work, they fashioned their argument around the equal protection clause. This is the same thing Ann Taylor is doing in this case imo. Just like Edmondson was not truly about equal protection, AT's argument is not truly about constitutionality. She's ticked off she didn't get that prelim. She's mad. This is what her problem really is.

Thing is though that the Idaho Supreme Court in Edmonson called out the defense for this stating:

In essence, cloaked under an equal protection challenge, we are asked to place a limit on prosecutorial discretion. This, the Oregon Supreme Court has done, but in this context we cannot do.

Same thing is happening here. If I were to take that and modify it for this case it would state:

In essence, cloaked under a constitutional challenge, we are asked to throw out an indictment founded upon sufficient evidence that a crime was committed and that it was this defendant who committed it because the prosecution wants the right to cross examine the evidence before trial. And, we are being asked to import a standard of proof reserved for conviction beyond a reasonable doubt in order to assist the defense in its efforts to get there and achieve this goal. This … we cannot do.

jmo

 

[Jurisprudence]

What is incredulous to me is that GV said in her signed CV document with the Defense that she 'knew of instances where LE/FBI used loopholes to access restricted data'. It was said on some form of SM that she retracted part(s) of her testimony.

I said the day she testified that I'd hate to be making such bold accusations against LE. It was absolutely no surprise to me that she was visited by investigators (LE or FBI) regarding her testimony. I'm glad the Prosecutor got that on the record, it'll work in their favor when they dispute the Defense's position on IGG. Along with the other real "Expert" witnesses who will show IGG is a tool, it doesn't supply them with a guilty party.

MOO

[BBM] Agree. Almost like perpetrating a fraud on the court. I think JJ is going to give them some of this regardless (the split the baby thing) just to remove the issue from appeal, even though it is moot imo and was not (but will now if he rules in favor) going to be introduced at trial.

jmo

 

[Jurisprudence]

I'm going to go out on a limb and say I think it will include the car year change that we discussed at length, probably some things that might sound a bit promising only when presented out of context, and others that we may find ridiculous. I'm not expecting anything with any real substance.

I agree. It will at least include this, and also the DNA of 3 "unknown males" I predict.

Their whole theory of the case seems to be that LE molded BK to fit the evidence as opposed to the evidence leading them to BK. I don't think this will work either.

ETA: For example, I am trying to see when they first announced the Elantra and if it was before the profile was made. I think it was. We know from the pca that WSU linked to car with "one plate" to BK on November 29th. The genealogy wasn't done yet, was it? If not, that's a fail out of the gate I'd think.

jmo

 

[Jurisprudence]

I don't think he'll hear the second motion to dismiss (filed 23rd August) on Sept 1. I think the Sept 1 hearing is for the original 25th July Motion to Dismiss only. The new motion is a new motion - the state is entitled to read, digest and make a response before it is heard Moo. Can't see how state can produce the lengthy brief required to respond to new motion by Aug 30th. Jmo

I would have said they might - just because they want this show on the road. But, now as you pointed out last night, she's filed another response to their answer to her first motion to dismiss. And, now that has to be addressed.

The unnecessary man hours being burned here are in the neighborhood of crazy town.

jmo

 

[Jurisprudence]

Question:

I am was trying to remember how early in the case did LE mention the knife sheath??

Does anyone have a date or approximate one?

I think it was the pca wasn't it? This was one of the main reasons IIRC that the Pappa post was so alarming in hindsight because it stated, prior to this being public information, that he probably forgot the sheath or went back for it or something.

jmo

Idaho murders suspect Bryan Kohberger's DNA 'found on knife sheath'

Kohberger, 28, is accused of murdering Maddie Mogen, Kaylee Goncalves, Xana Kernodle and Ethan Chapin on November 13 in the quiet, college town of Moscow, Idaho.

www.dailymail.co.uk

 

[ArianeEmory]

Even more, they will probably want to take a second look at anything she has touched (I am not sure if she has provided services to the FBI or not) because she is attempting to introduce a lot of doubt about something she does as a career. In the future, she's going to have a very rough time in court for any prosecution because these words will be used and abused by defense to paint her work as dubious and untrustworthy. "But can you prove you didn't use these backdoor methods? You seem to know a lot about them; it seems like it would be to your benefit to do so and then backstop it with other routes after the fact. Why should we take any denial at face value?" I hope she was getting ready to move on from this field because she single-handedly sunk her own career.

JMO

“I didn’t do it, but if I did this is how I would have done it …”

 

[Jurisprudence]

[snipped by me] Imo she's also making this argument too - stating that the judge has the power to order it not be resubmitted but rather that he order a preliminary hearing. jmo

ETA: Imo, as stated way upthread (maybe even in a prior thread at this point) this defense argument exposes the pandora's box that she would open *if* the court were to rule that the standard of proof to bind a defendant over for trial (not convict), is "beyond a reasonable doubt".

Because then, if I'm an Idaho defense attorney, I am making a motion for a new trial for every single client whose conviction started out via Indictment.

If this is the standard for BK but was not the standard for all of my clients, then you really would have an equal protection argument ripe for judicial intervention I think, if this makes sense. I'd be demanding they try every defendant over using the "new" standard of proof. It would be a disaster presently, and moving forward.

jmo

 

[foreverlennon]

Agree. It’s an eerie look and I think he is enjoying the attention.

Absolutely enjoying the attention.

 

[Diddian]

As @jepop says, the PCA, which was on January 5th.

However, I was looking through a very early timeline post, and LE mentioned that the weapon was probably some kind of knife, as early as the Nov 15 2022 press conf:

ID - 4 University of Idaho Students Died in Apparent Homicide, Moscow, 13 Nov 2022 ****Media Thread**** NO DISCUSSION

***UPDATED NOV 16, NEW INFO IN RED*** VICTIMS: EC = Ethan Chapin [IG / FB], a 20-year-old from Conway, Washington [1]; freshman, member of Sigma Chi fraternity majoring in recreation, sport and tourism management in the College of Education, Health and Human Sciences. [7]; school indicates...

www.websleuths.com

And I don't have a link for this, but: at some point about 4 months ago maybe, I read all the discussion threads from this case (for the first time). People were speculating early on that a sheath must have been left behind, I think because at some relatively early point LE also mentioned the type of knife ("Ka-Bar")--the idea being, how do they know what type of knife if they don't have the weapon? They know because they found a sheath for that type of knife.

Hope this all make sense.

According to this Jan 5 post, someone here was speculating as early as Nov 13, 2022 about a knife sheath possibly being left behind. This Jan 5 post has a link to that earlier post.

ID - 4 Univ of Idaho Students Murdered - Bryan Kohberger Arrested - Moscow # 52

wow. Just read exhibit A (PC Affidavit). So it wasn't ancestry site or anything which led to the DNA match with BK for the evidence found at crime scene. BTW how stupid was he to leave the knife's sheath on the bed next to his victims?? Even if he wore gloves while committing the murders how...

www.websleuths.com

 

[NextSprint]

Imo she's also making this argument too - stating that the judge has the power to order it not be resubmitted but rather that he order a preliminary hearing.

When the Idaho Supreme Court decided Edmonson they adopted the position espoused by the United States Supreme Court in Gerstein.

Ironically, the defendant in Edmonson wanted a preliminary hearing too - and knowing (or believing) that challenging the standard of proof was not going to work, they fashioned their argument around the equal protection clause. This is the same thing Ann Taylor is doing in this case imo. Just like Edmondson was not truly about equal protection, AT's argument is not truly about constitutionality. She's ticked off she didn't get that prelim. She's mad. This is what her problem really is.

Thing is though that the Idaho Supreme Court in Edmonson called out the defense for this stating:

In essence, cloaked under an equal protection challenge, we are asked to place a limit on prosecutorial discretion. This, the Oregon Supreme Court has done, but in this context we cannot do.

Same thing is happening here. If I were to take that and modify it for this case it would state:

In essence, cloaked under a constitutional challenge, we are asked to throw out an indictment founded upon sufficient evidence that a crime was committed and that it was this defendant who committed it because the prosecution wants the right to cross examine the evidence before trial. And, we are being asked to import a standard of proof reserved for conviction beyond a reasonable doubt in order to assist the defense in its efforts to get there and achieve this goal. This … we cannot do.

jmo

Edmonson is fascinating! Have to admit I'm not an Idaho lawyer, but I am a lawyer. I found it a great read, particularly one of the dissenting judges, Justice Bistline.

I don't feel like AT is being driven by being "ticked off" - it appears, even in the dissenting voices on the Idaho Supreme Court in Edmonson, that there is:

1. Real lack of knowledge between presentment vs indictment among prosecutors;
2. Very different natural courses that must/can occur depending on whether the Grand Jury's output is indeed a presentment or indictment;
3. Concern among some Idaho judges that Idaho Grand Jury procedures, in practice are inadequate.

I'll just add two quotes from Justice Bistline, dissenting on the Edmonson decision here:

"Indeed, current indictment procedures create what can only be characterized as a prosecutor's Eden: he decides what evidence will be heard, how it is to be presented, and then advises the grand jury on its admissibility and legal significance. In sharp contrast are information procedures in which the defendant is entitled to an adversarial, judicial hearing that yields numerous protections, including a far more meaningful probable cause determination."

"Unless I am much mistaken, the jury returned presentments, although the prosecutor called his proposed bills indictments. Under the law, if such are presentments, the statutes require the district court to order the accused to be arrested and taken before a magistrate for a preliminary examination — perhaps to be held to answer for jury trial."

As we are not party to the Grand Jury transcript, we cannot know what errors may or may not have been committed, which are the basis of AT's direction in her challenge.

There could be genuine issues there, and - as Justice Bistline in Edmonson, and apparently other senior jurists in other places - suggest, those issues may be substantial and worth mounting a challenge on.

 

[NextSprint]

I would have said they might - just because they want this show on the road. But, now as you pointed out last night, she's filed another response to their answer to her first motion to dismiss. And, now that has to be addressed.

The unnecessary man hours being burned here are in the neighborhood of crazy town.

jmo

I rather like to think that criminal procedures that could lead to someone's incarceration or death shouldn't be measured in man hours or dollars...

 

[foreverlennon]

While I do agree with that, and think he does have a mask hiding his true nature most of the time, I do think there are moments where his true emotions leak through.

When he entered court, and smirked at AT, I think his arrogance and confidence in his own superiority leaked through. I think he really feels like he has this all under control.

Exactly what I was thinking . The “mask” slipped ever so slightly.

 

[Chloegirl]

“I didn’t do it, but if I did this is how I would have done it …”

Wouldn't you call that an OJ?

 

[Chloegirl]

Ridiculous, really. So the Defense wrote the thing for her and she signed without reading it? The information in it was irrelevant anyway, IMO. It would now seem that the main purpose of that was to get it into the public's mind that "sometimes LE and others make mistakes in investigations, esp in DNA handling." Pfft.

Looks to have backfired (good for that "expert" for attempting to polish her reputation a little after tarnishing it - she came clean, IOW).

If I were the Judge, I'd be annoyed.

IMO.

Precisely!

 

[Chloegirl]

The video is really difficult in parts to understand, but, from what I can hear, after Vargas submitted her Declaration in Support of the Motion to Compel, and after she gave her sworn testimony in court about the contents of that declaration, she reneged on some of the testimony (we don't know what) in electronic communications with fellow genetic genealogists. The prosecution said she also admitted that some of what was in the declaration she inadvertently agreed to and/or signed without fully reading it. So there's a possibility this could fall under false statements/perjury, but not knowing what she's retracting that's just speculation.

What's kind of interesting to me is that the two things she's saying don't really add up. If she signed the declaration but hadn't really read it or didn't know all she was signing (which is possible if the defense prepared the declaration but still not a defense to submitting false statements), that doesn't really mesh with her then proceeding to testify to those things in court. Unless the false statements were about one thing and the retracted testimony another.

Oy!

 

[iamshadow21]

Wouldn't you call that an OJ?

Whatever it is, it's very much an 'own goal'. She nerfed herself.

MOO

 

[Chloegirl]

Whatever it is, it's very much an 'own goal'. She nerfed herself.

MOO

HAHAHAHAHAHAHA! I needed that so thank you.

 

[Jurisprudence]

I rather like to think that criminal procedures that could lead to someone's incarceration or death shouldn't be measured in man hours or dollars...

Okay