The University of Idaho Murders: Amazon, Autism, and More

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[00:02:13] Well, as you know, recently we've been pretty focused on the Delphi murder case involving, of course, Richard Allen getting charged and convicted with the murder of two girls in Delphi, Indiana. There are other cases going on. One that's obviously gotten a lot of attention is the murders that occurred at the University of Idaho. Can you remind us a little bit about that, Anya? Yes.

[00:02:38] This case involves the murders of four young University of Idaho students. And they were sort of brutally killed one evening. And since then, a man named Brian Koberger, who was a PhD student at a university nearby, but in Washington state, has been charged with the crime.

[00:03:03] And this is one of those cases where there's been a lot of pretrial activity as well as a lot of pretrial publicity. So we're seeing a lot of coverage, a lot of discussion, a lot of conspiracy theories, I'll just say. But yeah, it's it's some of that's been unfortunate, but it's certainly gotten a lot of.

[00:03:27] And as far as the victims go, their names were Kaylee Gonsalves, Madison Mogan, Xander Cronodal and Ethan Chapin. Cronodal and Chapin had been dating. There were also two surviving roommates in that house who were not killed that night. One of them actually came face to face with a mysterious man, an intruder. And we're going to be talking about that in a little bit. Yeah. Anyways, we're talking about university students. This is all happening in Moscow, Idaho.

[00:03:55] And Koberger himself is originally from Pennsylvania, but was at Washington State University, ironically studying criminology. So definitely an interesting case. And as I say, we've been so preoccupied with our rather extensive Delphi coverage. We have not been paying as much attention as we probably should have to this case. We're going to make an effort to do better in that regard because there's a lot of filings coming out.

[00:04:22] And kind of a first step, I took a look at some of the recent filings over the last couple of weeks. There's a lot of them. And I just pulled out a couple that I found interesting and we're going to talk about them. My name is Anya Kane. I'm a journalist. And I'm Kevin Greenlee. I'm an attorney. And this is The Murder Sheet. We're a true crime podcast focused on original reporting, interviews and deep dives into murder cases.

[00:04:51] We're The Murder Sheet. And this is the University of Idaho murders, Amazon, autism and more.

[00:05:43] Well, we're going to start today with some motions in Lemonade. There's been a bunch of these motions in Lemonade filed. We're just going to talk about a couple. Anya, can you remind us what motions in Lemonade are? Why are you asking the non-lawyer to describe this? So my understanding of motion in Lemonade in layman's terms is basically, hey, judge, can we throw this sort of subject or rule on this before trial so we can determine the outcome, you know, before trial?

[00:06:10] So like if I say, if I'm on trial for stealing cereal, as I often am, and my lawyer files a motion in Lemonade to not mention, I don't know, what would be like a good example? Not mention the fact that my favorite cereal is Frosted Flakes, which it's not. Or not mention like your bedroom is lined with posters of various cereal mascots. Right, right. Because that's something that maybe. That looks bad. That looks bad.

[00:06:39] Given all that's happened, it looks terrible. I don't want that in there. So, I mean, is that, I don't know. Can you explain it? You're the lawyer. This is why people are listening. So motions in Lemonade are basically where attorneys on either side in advance of a trial, to keep it simple, they are essentially asking the judge to make a ruling as to whether or not certain items can be allowed to be mentioned in the course of the trial.

[00:07:07] Whether or not those items should be forbidden from being mentioned in the course of the trial. So we're going to have some motions in Lemonade where the defense is going to say, we don't think this item should be mentioned and here's why. And we're also going to see some motions in Lemonade where the state is going to say where we think that this particular item should be mentioned and you should rule it now and here's why. Does that make sense? Makes sense to me.

[00:07:35] So, one of the motions in Lemonade that Kohlberger's team filed that I thought was interesting involved Amazon Clicks. Anya, what is Amazon? What's this Amazon I speak of? It's a massive company with a lot of different interests, but it's primarily known for its e-commerce platform on which you can buy just about anything. Yeah, I'm old enough. I remember when Amazon just sold books.

[00:08:00] But now, as I'm sure everybody listening knows, you can buy pretty much anything you want on Amazon. And so the state has some information concerning Mr. Kohlberger's purchase history on Amazon and also on his Amazon click activity, which I guess would probably be, I'm guessing, different things he's clicked on and would indicate that he's interested in particular items.

[00:08:28] So, like, not buying, it sounds like, but more like, you know, I'm going to click on this link, check it out. Maybe I haven't put it in my cart yet, but I'm looking at it. We are often asked about our favorite true crime podcasts. The Silver Linings Handbook with Jason Blair is one of our absolute favorites. Jason has become a personal friend of ours, and his show is a bright light in the true crime space. Our listeners probably even recognize his name because he's been on our program a number of times. We've been on his as well.

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[00:11:44] It's also nice to feel hydrated and refreshed. The thing is, though, I've always encouraged Kevin to drink more water, but he's always the guy that wants bottled water because he doesn't like the taste of tap water. Wow, so fancy. Turns out, though, Kevin's pickiness may be right for a change. Exactly. Just this once. Research by the Environmental Working Group finds that many homes in America can have harmful contaminants in their tap water. That's where AquaTrue comes in.

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[00:13:04] That's 20% off any AquaTrue water purifier when you go to AquaTrue.com and use promo code M-S-H-E-E-T. That's what the click activity sounds like. But this would also include his purchase history. So that raises the obvious question is what do we imagine that he's purchased or looked at on Amazon that his defense team doesn't want the jury to hear about?

[00:13:34] We know one item, and that is NBC News reported a couple of years back that Mr. Koberger purchased a K-bar knife on Amazon. A K-bar knife is suspected at least to have been used in the murders, and I believe a sheath for that knife with Mr. Koberger's DNA on it was found at the murder scene. Yes.

[00:13:58] So if they're able to have that and then show that he recently purchased a K-bar knife prior to the killings, pretty hard evidence to overcome in my mind there. And as I say, there may be other things he's clicked on or purchased that the defense worries might look bad. Well, you know, I'm just going to say this, and I'm maybe usually somewhat of a contrarian on sort of the whole Internet search history thing, probably because I'm in true crime and my Internet search history is probably nuts.

[00:14:26] But, you know, I think a lot of he's a criminology student. If he's looking up a lot of crimes, if he's looking up a lot of books on crimes, you know, we could say, well, that might have been an interest because he's a criminology student and because a lot of people are interested in that sort of thing. So for me, a knife that fits with the evidence of the crime is certainly something that I can imagine the defense being extremely concerned about.

[00:14:49] But at the same time, I would be very curious to know what else they're concerned about, because sometimes I feel like some of these things are like not as not quite as strong as the state thinks they're going to be. Yeah, that's fair. And we really can't evaluate it because we don't have much more information. I was intrigued by a couple of arguments that the defense made in this filing.

[00:15:14] They made a big deal about Amazon using artificial intelligence to help customers find products and how Amazon uses this algorithm to steer people in certain directions. And so they say, well, just because something ended up being purchased, that doesn't mean he went to the site intended to buy that. Maybe he was just kind of guided there by Amazon taking his hand and leading him down a garden path. That seems a bit like a novel argument.

[00:15:44] As you said, novel being code in lawyer speak for stupid, but interesting. That is a novel and interesting argument. I mean, like I have a question. If we're talking just a hypothetical. If we're talking about some person who is accused of some kind of racist attack, some sort of suspected white supremacist who does a hate crime or what's suspected of being a hate crime.

[00:16:09] And we find, you know, he's bought a bunch of, you know, concerning texts on Amazon that would sort of indicate maybe some leanings in that direction. You know, like a lot of Hitler gear, a lot of Mein Kampf stuff. Is, you know, like, is that? Oh, well, Amazon was kind of they saw what he liked and they were recommending him a lot of this stuff. Does that take out somebody's freedom of choice? I mean, like. Yeah, that's where I'm at.

[00:16:36] I mean, if you look at my Amazon history and saw that I bought a book called Anya is Bad. And I said, well, Anya. But if you look, it was just suggested for me by the algorithm. It's not like I went to Amazon intending to buy the Anya is Bad book. I don't think you'd find that very comforting. Because the algorithm forced me to do it is just a stupid, stupid thing for them to be arguing about a, you know, a fully adult man. So I think that's dumb. And who cares why he bought it?

[00:17:06] The point is, is it involved in the crime? And if they found the sheath there with his DNA on it, I can understand them being very concerned about it. I just don't think that's. There may be other things on his purchase list that we don't know about. Well, again, like that's why I said I'd be sympathetic to them to a certain extent, not really with this argument, but just with the concept of it doesn't matter if he's looked up a bunch of creepy stuff or a bunch of. I mean, I guess we'd have to see what it was.

[00:17:32] But I can imagine that like if he's looking up like I'm going to buy a bunch of books on Ted Bundy. Everyone in true crime will freak out. Everyone in the media will freak out. But again, I would argue that you and I own a lot of books about all kinds of crimes. If you ever join our Patreon, you can see on our lives. A lot of a lot of crime books doesn't mean that we're violent people who are going to kill people. So I kind of I kind of think like depending on what it is, I might say, well, I don't really think that means he's a murderer. That's not really evidence against him.

[00:18:02] But I think I think, you know, some people may feel differently. So I don't know. They said in their filing a user's browsing and purchase history may not necessarily reflect deliberate intent, but could have been shaped by Amazon's algorithm. And I would agree with you. That's not really an argument I find especially compelling. They did make another argument that I found more interesting. But I'll tell it to you and get your reaction.

[00:18:32] Apparently, this Amazon account he used was a household account, which means that it was also used by other people in his family. So the argument is, well, maybe the algorithm was affected by what other people in the family were doing. And I guess presumably there would be the chance that, oh, if he purchased something suspect, perhaps it was actually purchased by another member of his family.

[00:18:59] Well, that would be easy to look at in terms of where it was delivered to, I would imagine. If they're on the same household, though. So if he got the knife in Pennsylvania where his family lived versus in Washington, then it could be up in the air. But that's, I mean, like, good try, I guess. I mean, I get why they'd go with that argument. It's certainly more logical than the first one. But I don't really, I mean, I think at that point, you know, we're trying to kind of get over this insurmountable knife.

[00:19:27] But at the same time, I think that's more logical and cogent. And I would say that if they're talking about we don't we literally don't know who bought this. Yeah, I would I would be interested to know, you know, what do things like, you know, are there are there IP addresses or is there an ability to hone in on, you know, who did what? Maybe not. I don't know. I don't know how it works, but. Yeah, you might be.

[00:19:53] If, for instance, we know that someone within a particular square mile of a city bought a knife, maybe that's not super relevant. But if you know it was purchased by someone in a household that included the person whose DNA was found with a crime scene, perhaps it becomes more relevant. But I'll tell you, to me, this seems more in the category of what would be considered impeachable evidence.

[00:20:17] So, in other words, if you get the expert on the stand who is presenting this information about Amazon, the defense attorneys can and should try to bring up some of these issues about household sharing and other things in the process of the cross-examination. Right. So, hey, I mean, you're not able to fully say that he did it because there was it was shared by all these different people in the family. And, you know, the expert may have to say, yeah, we you know, we can't exactly determine who did it.

[00:20:46] But his DNA was found on the same type of thing that was ordered. So do the math. That makes sense. And that is what you would expect and want a defense attorney to do. Sometimes I think people in crime and true crime who kind of talk about this, unfortunately, have like a have a problem with like thinking that just because something may be a fair point, it doesn't mean that evidence necessarily should be or is going to get thrown out or that it really is ultimately that big of a deal.

[00:21:15] It's more of like it's a reasonable point for attorneys to make. I think sometimes people kind of overstate. Some of these things. Yeah, it just it just goes to how much weight a jury, a juror should give to particular pieces of evidence. Like here's the reasons why we should really consider this. Here's the reasons why it might not be as strong as the other side thinks. It just all goes to weight and doesn't necessarily mean it has to be thrown out completely.

[00:21:45] Does that make sense? Yeah, it makes a lot of sense. Let's move on to the next motion to eliminate. Let's see. There's more you want to talk about with Amazon. No. The next motion in limine is bushy eyebrows. So as Anya mentioned, there was a person in the house. I believe there's two people in the house who survived the murders, one of whom initials DM actually saw the killer.

[00:22:12] And as is mentioned in this particular filing, DM is the only person alive who is known to have seen the intruder. End quote. So obviously, her testimony is crucial. Now, when she saw him, you know, he was wearing like some sort of facial covering and, you know, and it was at night. So she and it was dark. So she didn't get a great look at him.

[00:22:39] But she does remember that he had bushy eyebrows. I'm going to quote from this document. Quote, she did not see the intruder well enough to describe him to a composite artist. That's true. She just saw him briefly in the dark. And again, I'm going to quote, although she has never identified Mr. Kohlberger testimony by DM from the witness stand describing bushy eyebrows while Mr.

[00:23:09] Kohlberger sits as the accused at trial would be as damning as her pointing to him and saying he is the man that did this. End quote. Because Mr. Kohlberger has very distinctive bushy eyebrows. He definitely does. And so the thinking is, if she says the killer had bushy eyebrows and the jury is looking at a man with bushy eyebrows, game over. Well, I mean.

[00:23:34] As somebody with crazy eyebrows myself, I don't know if it's game over because a lot of people can have pretty large eyebrows, I guess. I don't I mean, I get what they're saying, but OK. OK. And then it seems like they have a very overstated way of making their points. Everything seems very histrionic. I'm just saying, like, I don't care for that style personally. So it's it's just like.

[00:24:02] Like when when when you're legal filing makes me want to say, like, calm down, like that's I feel like that's a bad sign. But anyway, proceed. Well, I think as they acknowledge, he's the only person living known to have seen the intruder. I think that makes her testimony extremely valuable and worth hearing. It makes it more valuable, not less valuable.

[00:24:25] In the course of their filing, they talk about things like, you know, it was late. She was tired. She's she didn't know what color the eyebrows were. In the past, she's had some lucid dreaming. And to me, at least these things they bring up, again, go into the category of what I would consider to be impeachable. Let her testify. Let her describe what she remembers seeing.

[00:24:53] And then you can bring up some of these things on cross exam. What do you think? Yeah, it sounds very pay no attention to the eyebrows behind the curtain. You know, they're just, you know, it's it's very damaging for the defense. And I think. To have her talk and I mean, honestly, one thing it's like if they if they think she saw the killer, but they don't think it was their client. You know, what's the issue then?

[00:25:19] I would say also, you know, I just want to say this because, you know, you mentioned lucid dreaming. There's been discussion of drinking alcohol that night affecting her and whatnot. I agree. All this is impeachable. But I've seen so much kind of I thought unnecessary criticism and frankly, like skepticism toward the surviving roommates in this case. I just want to be very emphatic here. I'm begging people who fall into that camp. I understand it. You know, it's like, why didn't you call 911?

[00:25:47] I'm just begging everyone to remember that if you're listening to this, if you're like me, you are a true crime person. You are a person who maybe has been listening to or watching or consuming true crime for a long time. If you're like me, since you're a teenager. Right. Maybe even. Absolutely. Maybe even before that, maybe before I should have been, you know, reading the New York City tabloids. Right. And that influences the way that all of us interact with a story like this.

[00:26:11] And it influences the way that we would have probably reacted in a situation because we would be the people thinking, oh, call 911 now. We would be more reactive. Most likely. And so I think we all should extend a little bit of empathy. Not everyone is like that. Not everybody is walking around thinking, you know, not everybody. Like when I'm when I'm like driving down the highway and I see a bunch of mysterious plastic bags on the side, my mind goes to a dark place. I'm like, oh, what's that all about?

[00:26:40] You know, if I see someone acting suspiciously, I'm probably a little more paranoid than the general population. But that doesn't mean that everyone is like that. And I just think it's really important to emphasize and point that out, because just because somebody doesn't do what we would do doesn't mean that their behavior is suspicious or that they're lying or that they deserve to be doubted or harassed. OK. And when you throw in the fact that these are all very young people, these are college people. It's late at night. There's drinking.

[00:27:10] You know, when I throw those factors in and look at my own behavior in college, you know, I don't like people like it. I just don't think it's fair. The amount of just kind of this like I don't believe them because I would have never done that. And they're acting suspiciously. I mean, there's so many factors there that just make this more explainable to me that I just think we should try to keep that in mind when we're talking about this story. I don't know. I think that's very, very well said.

[00:27:39] And it's also, I think, worth remembering that it's not a situation where a witness has to have the equivalent of a high quality, professionally made photograph of the suspect or their witness testimony is completely worthless.

[00:27:58] Most people in a situation there when they're observing something like this, especially at night, you're not going to get a super clear look at the person or people in questions. They say she's never directly identified him as the killer or is the person she saw that night. I think that's to her credit. She's not saying things she didn't see. Yeah, because he's masked. Right. So she's not able to say it's definitely that guy. She can just tell you what she saw. That's definitely credible.

[00:28:26] And if it just boils down to she remembers one physical detail and that physical detail is consistent with the defendant, it doesn't really seem to be especially compelling argument that, oh, she shouldn't be allowed to do that because that would be really bad for us. Is that basically the argument? Like, what is their argument here? It would be bad for our team, so don't do that. It's basically they are suggesting that there are reasons why her testimony might not be super reliable because of darkness, because she was tired.

[00:28:56] Because she wasn't able to identify him. And if it's not reliable, then it's going to be prejudicial. Did they talk about her drinking that night or was there any discussion of alcohol? I'm just curious because that's that's something that's always kind of been the forefront of my mind with people in college. It's night. People might be partying. Does that come into this at all that they're mentioning? Are they not even saying that? It comes up. But I again. It's not clear. It's not clear what exactly was going on with that. But it's just, you know, I think you're right. It's impeachable.

[00:29:24] You can ask her, you know, about her evening. You can ask her what she was doing. You can ask her about her lucid dreams. You can do all that and then let the jury decide. But yeah. She is the only person living known to have seen the killer. I think that the jury should be able to hear from her and the defense should be able to cross-examine her and make whatever they think their points are. Yeah. That's my inclination.

[00:29:50] I can understand why they want this in the Amazon stuff out, though, because, I mean, it obviously is pretty hurtful to them on, you know, in their case. Yes, it is. So I also want to talk about a couple of motions in limine that came from the state. And one is about text messages and the other one is about a 911 call. And the issues here.

[00:30:17] We'll get into the substance of the 911 call and the substance of the text messages. But let's first address the legal argument. And the thing to remember is that a 911 call and the text messages are essentially what is known as hearsay. Do you know the definition of hearsay? Why don't you tell us? Okay. I mean, like, I think I do, but I don't want to bungle it on our podcast because that would be somewhat embarrassing.

[00:30:46] So hearsay is something that a person says outside of court that someone in the course of a trial wants to use in order to prove something. More particularly, they're trying to prove the truth of whatever is being said in the statement that was made outside of court.

[00:31:11] And the thing is, in our system of jurisprudence, we have come to the conclusion that the best way to ascertain truth or falsity is to get people to come in, come take the oath and make statements under penalty of perjury. That means if you're sworn to tell the truth, the whole truth and nothing but the truth and you lie, you get in trouble.

[00:31:39] And when you are not in court and you have not been sworn and you say something, then there's really no penalty because obviously no one's supposed to lie. But if you're not in court and you say something that's not true, you don't really get into trouble usually. And so we should accord less weight to those statements. So that'd be like if I went in court and testified, Kevin told me that he feels he bought too many books.

[00:32:06] Like that would be hearsay because I'm just saying what you said to me. Yes, generally speaking, that would be hearsay if that was if you were saying that in court to try to indicate that what you said was true. OK, I don't know why I'd be using that. But OK, but give us an example of hearsay because I think this is a little bit confusing.

[00:32:29] So if someone goes into court and says, oh, I was talking to a friend of Anya's and that friend of Anya's says that Anya told her that she really wanted to steal a bunch of cereal. Who snitched? That's what I'd be saying. But also I'm assuming my attorneys would be saying that's hearsay. OK, that's hearsay because whoever was repeating those things was saying it outside of court. And so it's not sworn testimony. OK.

[00:32:58] And therefore, this little penalty, aside from losing my trust and friendship, to be saying stuff like that. And, you know, sometimes attorneys will try to do workarounds and say, well, I want this person to come in and testify about what the friend of Anya said that Anya told them. But not not to say whether or not the statement that Anya has quoted is saying is true, just to establish that Anya has many friends.

[00:33:26] So you can say you can move to have things admitted for reasons other than whether or not the statement being admitted is true or false. Am I just confusing everyone? I mean, I don't think so, but I want to drill down on this a little bit more. My question for you would be is is hearsay allowed typically or how does this typically work when we're talking about hearsay in a criminal court? Hearsay is not allowed.

[00:33:52] There are exceptions, one of which is I'm offering this testimony that is hearsay, but I'm offering it for reasons other than whether or not the statement being offered is true or false. So there are exceptions where it's OK. Most of the time it's not OK. Yes. But you can carve out some specific instances where it's allowed. And would that usually be ruled on ahead of time?

[00:34:15] That's what the state is asking here because they want a 911 call and text messages to be admitted into the trial. And obviously, when you're making a 911 call or when you're sending a text message to someone, you haven't previously taken an oath to tell the truth, the whole truth and nothing but the truth. And also, you're not usually in a courtroom. So that is pretty much the definition of hearsay.

[00:34:41] And so if you want that stuff to be admitted, you have to find one of the exceptions and say, oh, this fits into that exception. And so the state here is suggesting that the 911 call and the text messages fall under one of two different exceptions. One of them is the so-called excited utterance. What? OK. What's that?

[00:35:09] The excited utterance exemption. This sounds weird. You're such a child. Oh, my God. You're turning red. No one can see this, but he is. Well, this goes back to, well, why don't we want unsworn statements in court? And one reason is perhaps someone outside of court has taken a lot of time to think calmly and try to contrive a fake story. Ah, gone girl it.

[00:35:39] Or maybe somebody else stole some cereal and says, hmm, maybe I can say I heard from a friend of Anya's that she did it. And so an exception would be, oh, this person, this was an excited utterance. They were talking about an event that was somehow emotionally disruptive and they have not yet had time to process that event to think about it to make up a story.

[00:36:04] So, like, a clerk texts their mom, oh, my gosh, I think a woman I've seen on court TV before just came in the store and ran outside with a bunch of boxes of cereal while screaming nonsense. Yes. Like, I don't know what I just saw that was very upsetting. So in that case, it's like, why would they lie? And also they're saying this right after it supposedly happened. So it's not like, OK, all right. So that's the excited utterance example.

[00:36:33] Another example of an exemption would be like a present sense impression. This means if the statement is applying to something that the person is currently going through or witnessing.

[00:36:49] So if you, like, see a car accident and as it's happening, you're, like, talking into a phone or something like that or you memorialize some in some fashion your recollection of what you've seen, then you're describing what you've just seen. You haven't had time to make up a lie. That makes sense. So that would be like a 911 call potentially would fit into that. Or excited utterance. OK.

[00:37:14] So because in these text messages, they're upset and they're also discussing something that is currently going on. So I frankly think that these are likely to fall under one or both of those exemptions. It certainly seems that way. I mean, based on the definitions that you described, it certainly seems like these would.

[00:37:36] And I would imagine issues with that would be stuff where the attorneys could impeach those doing the texts. Right. And impeach them. Well, you said this later in a police statement, but you said this in the 911 call. Right. I mean, would that be, you know, they could still have their shot at that. But, you know, you'd imagine they'd be admitted. Yeah. So hopefully, have I been clear? I think so.

[00:38:04] I mean, I, you know, I don't have a legal mind like you do. So I just want to always ask you, like, what? Because I feel like that would, you know, help explain things to people. But I think I understand. And it's interesting. So, you know, so that is right now it's not the defense filing to keep these out. It's the state filing to put them in. Yes.

[00:38:26] So the state is filing to get the 911 call and the text messages included because technically both would be considered hearsay normally. Mm-hmm. Do you want to discuss some of the text messages? Yeah, the content. Let's talk about the actual content of the messages. Do you want to read them here? Most of them are to or from DM to BF or vice versa. These are the names of some of the two survivors in the house. Do you want to read them? Yes.

[00:38:56] And what time was this? This was from 422 a.m. to 424 a.m. Okay. So do you want me to read all of them? Why don't you read all of them? So DM to BF. No one is answering. DM to BF. I'm really confused RN right now. DM to Gonsalves. Kaylee. DM to Gonsalves. What's going on? BF to DM. Yeah, dude. WTF. BF to DM. Xana was wearing all black. DM to BF.

[00:39:24] I'm freaking out RN right now. DM to BF. No, it's like ski mask almost. BF to DM. S-T-F-U. That's shut the F up. BF to DM. Actually. DM to BF. Like he had some... I think that's supposed to be something. Like he had something over his forehead and little ND mouth. DM to BF. I'm not kidding.

[00:39:54] I am so freaked out. BF to DM. So am I. DM to BF. My phone is going to die. F. BF to DM. Come to my room. BF to DM. Run. BF to DM. Down here. So that's obviously describing a disturbing event where she has seen something or seen someone that leaves her very frightened and uneasy.

[00:40:24] Yes. So they are seeing... One of them sees a guy wearing a ski mask-like outfit and they're trying to figure out what's going on and they're not able to get in touch with their friend, Kaylee Gonsalves. So, you know, this is where people are saying, well, why wouldn't they just call 911 right there? And my feeling is if this is a house where there's a high traffic, where there's parties or events,

[00:40:52] college, you know, you might have a gentleman caller over or whatnot that can happen. And there can be people in the residence who are not necessarily like being signed in or introduced to everyone before that happens. So to me, if... Right. Like if Kevin and I are in our house and there's suddenly a person in a ski mask there... Oh, God. That's so scary. There's no reason for that to be happening.

[00:41:20] You know, but if you have a house with roommates, multiple roommates, some of whom may be single, they might be, you know, seeing a new guy or whatnot, someone might be over, for whatever reason, there would... I don't think there would necessarily be the rush to call 911 at that moment. Because all you could be doing is creating a big ruckus in the middle of the night and freaking out your friends for no reason, which probably would have been, you know, the most likely thing to have happened in their minds.

[00:41:50] I don't... They don't... I mean, they sound freaked out and it's a creepy, freaky experience. But, you know, it doesn't sound like they heard anything to the point where it was like, you know, all of our friends have been murdered here. So I guess to me, it just, you know, would a lot of people have called 911 at that point? Perhaps. But is hindsight 2020 and ultimately harassing witnesses for not doing the behavior that you think they should have done helpful? No.

[00:42:19] So I don't know. What are your thoughts on this? Do you have a different opinion? No, I agree with you. They didn't do anything wrong. And as I say, on the legal front, I'm going to quote from the document, quote, all of the above declarations are present sense impressions and excited utterances. This is supported by DM's grand jury testimony, which indicates she just witnessed a startling event, i.e. heard noises in residence and saw an unknown male in the residence.

[00:42:45] The declarations indicate both BF and DM are trying to make sense of the startling event contemporaneously or immediately following the startling event, end quote. So there hasn't been any time to make up any fake story. I think this is real. I think it's an accurate reflection of these two young people being very frightened and not knowing what to do. And I'm not going to second guess them in that situation.

[00:43:15] They are victims and they went through something horrible. Yeah, ultimately, that is what's most important to remember. And we're talking about very young people who, again, went through something absolutely horrific and they very well could have been killed, too, in the process of all this. It's really I mean, they're survivors of this thing. So I really don't want to when people when people get hypercritical like this, it's just like, what do you want from people? Like, oh, I'm so sorry everyone's not as perfect as you are.

[00:43:41] You know, like, I mean, let's all look back at what we were doing at that age or, you know, situations where we didn't react perfectly to a scary situation and determine that we're absolutely perfect. And then let's cast stones at these girls. I just I think it's appalling some of the stuff I see, you know, and I get, you know, to a certain extent when people are more measured and they're saying, well, I don't get why they didn't do this. Yeah, I mean, yeah, but at the same time, if there's guys over sometimes the thing that

[00:44:09] would come to my mind if you were in a house where a lot of people were over and people were in and out would be like somebody was entertaining a somewhat creepy dude, you know, don't want to necessarily make a huge deal of that. Freak out on my roommates. Have the cops burst in at 4 a.m. Right. Like, that's not that's not really the goal here. So that would be a situation where they'd be freaked out. And then if everything had been normal the next day, maybe they would have laughed about it or like, who's that guy in the ski mask? Oh, that was just the guy I had over, you know, like it wouldn't have been a big deal.

[00:44:38] But unfortunately, this was the one time where something really awful did happen. So, yeah. Let's talk about the 9-1-1 call. The legal arguments for including it are very similar to the legal arguments for including the text messages. So that they made this 9-1-1 call to a dispatcher and they described what they were perceiving. And I'm going to quote from this filing quote.

[00:45:07] Their statements relate to Cunodal being passed out and not waking up. The declarations were made immediately after H.J. discovered Cunodal's body. Some declarations made would also be considered excited utterances. These statements include, quote, oh, and they saw some man in their house last night. Yeah. As well as the heaving, breathing, and crying that can be heard throughout the call.

[00:45:32] The declarants were responding to a startling occasion, the discovery of an unresponsive roommate. The statement regarding a person being in the home is in direct response to why Cunodal might be passed out. End quote. That is so sad. I feel sad. My heart goes out to these kids. I mean, that's just horrifying. Yeah. The description of the heaving, breathing, and the crying. Oh, gosh. Yeah. That's really upsetting.

[00:45:59] And, yeah, I mean, so there were, so H.J. is another friend comes over and is the one to discover this, it sounds like? Yeah. Well, yeah, I mean, that makes sense as far as what you explained about the excited utterance and the various exceptions to hearsay that seems to make sense.

[00:46:25] The previous judge on this case, Judge Judge, ruled that the 911 call would be allowed in, and he even said that the emotion that was evident in the voices of the young people was relevant because that would help explain why there was such a huge response that it wasn't just like an ambulance. It was like law enforcement. Everybody was just rushing over.

[00:46:54] They realized immediately that something was seriously wrong, and they all headed out to the house on King Road. Yeah. Right. So, yeah, law enforcement was sent out, and it wasn't just emergency vehicles. Yeah, that makes sense. I mean, that sounds like it was a responsible thing to do. So. So, the last filing I wanted to discuss pertains to autism.

[00:47:19] And I'm not going to go into a lot of detail here, but someone that I am very close to has autism. So, it's a condition I'm very, very familiar with. And so, this argument touched home with me.

[00:47:39] They tried to make the argument that Kohlberger has autism and that because of that, the death penalty should not be on the table. And I wanted to read some quotes for you from an organization called Autism Ontario. They say, quote, Autism should not be used as a legal defense to evade responsibility for criminal actions.

[00:48:06] Autism is a neurodevelopmental condition primarily characterized by social impairments and differences in the ability to understand the emotions and perspectives of others. Autism is not synonymous with violence or a lack of moral compass, and it should not be equated with mental health issues.

[00:48:29] Regrettably, we often witness the oversimplification of autistic individuals, which results in unwarranted stereotyping. They go on to say, quote,

[00:48:51] And again, just to be clear, I'm quoting from Autism Ontario there, and they weren't talking about this case because this is something that's been done in other cases where people, it feels like they're trying to demonize people with autism, and that's something that really bothers me. And it doesn't feel like that does anything but make people scared of people with autism.

[00:49:16] Yeah, I think autism spectrum disorder has absolutely been conflated in the public's mind with violence. And the research does not bear that out. And, in fact, people with autism can be victims of violence, and stereotyping in that way doesn't help people with autism. I mean, as it stands, autism can be disabling.

[00:49:44] Autism, I think, should receive support from society and from government for people who have special needs with that. I mean, but as far as being something where it's like an excuse for murder or something that's being dragged into like a high-profile murder case, I mean, when you have people who, you know, may have some of the developmental challenges or even intellectual disability paired with autism,

[00:50:11] you can get situations where there can be, you know, kind of a bit of a meltdown or even some violence there. But that absolutely could not be further from somebody going in and purposely murdering four people. You know, like, it's like these people don't even understand. Like, it makes me angry. Like, how dare you?

[00:50:34] I have someone close to me with autism, and to see people try to demonize people with autism or suggest things like this, it's upsetting to me. I just want to acknowledge that that is the lens I'm seeing this through. It's like, yeah, let's, you know, let's take a group of people who are already stereotyped and regarded as bad or to be avoided, and let's just dump more of that on them because that's helpful.

[00:51:04] I have a question, though, and this is, I hate, you know, I want to be fair. Are they, in their filing, what exactly are they saying? Are they saying just that people who have autism shouldn't be executed or, like, what? Well, the argument is that he shouldn't face the death penalty because of this, and I'll read you some of this. Okay, because I'm just curious what exactly they're asking for.

[00:51:29] Quote, along with difficulty recognizing the emotions of others, and I'm reading from the defense filing. Quote, along with difficulty recognizing the emotions of others, people with autism spectrum disorder often struggle to recognize and regulate their own emotions. This can manifest as diminished capacity to control impulses. Dr. Orr observed Mr. Kohlberger's impulsive tendencies throughout her evaluation, which were also reported by his family.

[00:51:56] Additionally, a need to engage in repetitive behaviors or interests is one of the diagnostic domains of ASD. For many people with ASD, this manifests in compulsive behavior that cannot easily be controlled by rational thinking. End quote. Oh, my God. That's really bad. It sounds like they're trying to conflate, just as Autism Ontario said, they're trying to conflate autism with mental illness.

[00:52:21] And if Mr. Kohlberger committed these acts, if he committed these murders as the result of compulsive behavior that he cannot easily control, that sounds more like mental illness than autism spectrum disorder. Well, it's I mean, I'm all for to be perfectly honest. This is my opinion. So I'm stating that I'm all for some leniency in sentencing as far as people who are suffering from a diagnosed mental illness who may have trouble.

[00:52:54] Differentiating between right and wrong when they're committing a crime. Right. I mean, that's. Yeah, that's I think that's appropriate. But I do I do find this the way this is kind of framed is offensive to me because there is that kind of there's there's like a, you know. There's there seems to be some assumptions here about autism spectrum disorder. That's just like, I don't know, completely off the wall.

[00:53:22] And and and I think unfortunately worsens stereotypes about it. And I mean, God God knows that's already a huge problem. It's not, you know. Yeah. This it just adds to that. And it's just like, come on, you know. But, you know, I I don't know. And it seems kind of weird, though, that they're. I mean, maybe it's not like, is it normal for them to be kind of having these conversations about like and if he's convicted.

[00:53:52] Hey, he shouldn't get the word, you know. Well, you know, if he if he didn't do it, he's being framed, all this stuff. But, you know, like, let's be honest, if he gets convicted, he couldn't control himself. Yeah, we're all adults. Autistic, you know, like, I mean, is that is that like is that weird? No. Yeah, I figured it's not weird. It seems like typical, but it's just funny. But it is a bit infuriating. Yeah, we don't we don't need to be burdening autistic people with more of, you know, the kind of stupid stereotypes.

[00:54:20] And it's it's really. It's not it's not associated with violence and and certainly not certainly not murdering people like straight up sneaking into people's houses and murdering people is not something, you know. There's other issues going on there if if an autistic person is doing that. OK, yeah. You know, if a person with autism is doing that, I don't think it's because of the autism because.

[00:54:45] Is the vast, vast majority of people with autism are not doing anything like that. Yes. And they're just trying to mind their own business and live their lives. So leave them alone. And they try to conflate it with a compulsive behavior that they can't control. That sounds like a mental health issue. They also talk about people who have intellectual disabilities are not executed.

[00:55:08] And so the same sort of thinking should apply to people with autism, because if you squint, some similar things are there. But. I don't buy that because many people with autism do not have many, if not most. I would say most. Most people with autism do not have any intellectual disabilities. And Mr. Koberger was capable of living on his own and having some success as a college student. He was a he was a Ph.D. student.

[00:55:37] I mean, now, just because you're doing well and sort of fulfilling some of those life goals does not mean that someone does not struggle with aspects of ASD. It's not it's not like, oh, everything's perfect and he doesn't need any help. I mean, like you can still say maybe they're they're issues and they, you know, someone needs support. So I'm not downplaying that. But, you know, I think I mean, there are there is a percentage. I don't know what it is.

[00:56:05] It may be minority or majority or whatnot. But there may be a percentage of people with autism spectrum disorder who do have some kind of intellectual disability. But it's certainly not everyone. And. If if they're saying that, if they're arguing that here, they should make it clear that that's part of his diagnosis. Yes. If you want to say that Mr. Kohlberger has compulsions he cannot control, make a mental health argument. If you want to say that Mr.

[00:56:34] Kohlberger has intellectual disabilities, make that argument. This autism thing. Yeah. I want to read a part of this which. Upset me and made me very, very sad. And again, I'm acknowledging my bias. I'm I'm someone who loves someone with autism. So I'm quoting here. Well, defendants with autism spectrum disorder, ASD, are less able to meaningfully assist their counsel.

[00:57:04] The key diagnostic criteria for ASD, social deficits and repetitive behaviors and interests, significantly hamper an autistic defendant's ability to meaningfully assist counsel, particularly in the unique context of capital defense. The first and most critical step in adequate capital representation is establishing rapport with a client.

[00:57:27] Establishing a relationship of trust with the client is essential both to overcome the client's natural resistance to disclosing the often personal and painful facts necessary to present an effective penalty phase defense. And to assure that the client will listen to counsel's advice on important matters, such as whether to testify in the advisability of a plea.

[00:57:48] The social and communications deficits associated with ASD pose a major barrier to developing the necessary rapport between counsel and client for effective capital representation. For example, people often convey warmth through nonverbal cues such as posture, facial expression and tone, which clients with ASD would not be able to recognize or interpret, end quote. So it's basically saying, if you know a person with autism, you can't build rapport with them. You can't have a relationship with them.

[00:58:18] So, yeah. What? And that's offensive to me because even if a person has autism, you can still love them. You can still build a meaningful relationship with them, whether you're a family member, whether you're their attorney, whether you're their coworker. So that made me sad and it made me angry. That ticks me off too.

[00:58:38] It made me sad to someone who loves a person with autism to know that people in the world will see her like this is a freak that you can't build rapport with. That makes me want to cry, honestly. It made me very, very sad. It's like just because they're – yeah. I mean you have to be aware of the differences, but you can work around that and there's ways to communicate. It's just – yeah.

[00:59:07] It's like maybe you just stink at your jobs. Maybe you're just not as charming as you think you are. You know, I don't even understand that. And just because this was something I was interested in, I looked up, you know, the thing about intellectual disabilities is that there are different definitions of what that encompasses.

[00:59:28] So there is debate and it kind of depends on what the study of the rate of intellectual disabilities pairing with autism. So I'm seeing numbers all over the place. That's why I don't really want to cite anything. It seems like some are kind of on the higher side, some are on the lower side.

[00:59:45] But one thing that is interesting is that from what I looked around, there is a rise or a perceived rise in children being diagnosed with autism who do not have identified intellectual disabilities. And the reason for that is pretty obvious to me.

[01:00:03] It's because in the past, the more extreme cases would get diagnosed and people who maybe were – did not suffer from the intellectual disability side from that would fly under the radar and not be diagnosed. Even though they would still be autistic, it would just be kind of more invisible.

[01:00:22] So now that we're more aware of this and more people are getting diagnosed, it sort of makes sense that the rate of people who aren't intellectually disabled would go up in that population. So, I mean, again, they should make the case for him being in that group and having the intellectual disability or having some kind of specific aspect to his autism that would be a problem or something to consider here.

[01:00:52] Instead of just, frankly speaking somewhat callously and carelessly about a whole group of people. A whole group of people. Let's also hear some of the things they say about their client in particular. Quote, Mr. Kohlberger displays extremely rigid thinking, perseverates on specific topics, processes information on a piecemeal basis, struggles to plan ahead, and demonstrates little insight into his own behaviors and emotions.

[01:01:20] In quote, also later. Due to his ASD, Mr. Kohlberger simply cannot comport himself in a manner that aligns with societal expectations of normalcy. In quote. Quote, due to the deficits associated with ASD, a defendant like Mr. Kohlberger is just as likely as someone with intellectual disability to make a poor witness. Mr. Kohlberger's speech is awkward, both in his content and delivery.

[01:01:49] As Dr. Orr observed, his tone and cadence are abnormal, his interactions lack fluidity, and his language is often over-inclusive, disorganized, highly repetitive, and oddly formal. He is highly distracted by sounds or activities occurring around him, and he frequently looks from side to side to monitor his periphery. Excuse me. As a result of his high distractibility, he often needs questions or instructions repeated. In quote.

[01:02:18] What do you make of all of that? That sounds like they don't really. Sounds like they don't like the guy. I know, I know. They don't really like their client. I mean, no. I mean, in fairness, I think there would be reasons for defense attorneys to sometimes throw, be perceived as throwing their client under the bus. That's one thing that comes to mind that we've had conversations with defense attorneys about on the show and, I think, behind the scenes is just the very act of going for, you know, a competency hearing is possibly alienating between a defense attorney and their client.

[01:02:48] If a client's saying, I'm not crazy, I'm fine, but the defense attorney is like, you can't even help with your defense now, man. And, you know, being the one to say he needs a competency hearing could, you know, could be perceived as saying something negative about your client. And sometimes that's necessary. Sometimes that's the job. This seems, yeah. I mean, I, yeah, it seems like there's been some stuff on the scenes. I don't know. One more quote. Quote. Excuse me.

[01:03:13] It is well recognized by courts and scholars alike that evidence of ASD, like intellectual disability in youth, is a two-edged sword that increases the likelihood the defendant will be seen as dangerous and as a result sentenced to death. End quote. If people with ASD are seen as dangerous, it is because of nonsense like this. That's true. And they're perpetuating an inaccurate and unfair stereotype.

[01:03:40] Do you think that what they talk about with him not being able to be on the stand is fair, is disabling enough to be something that is considered because he can't maybe, it's not advisable for him to speak in his own defense? I mean, let's be blunt. It's not advisable for 99.9% of people to speak in their own defense. Usually it is a stupid mistake for a defendant to testify for himself. It's almost always a terrible idea. Yes.

[01:04:08] And so if we say, oh, if you don't testify against yourself, that's an unfair thing. And I mean, that's nonsense. You've been dealing with discussions of autism that must be like, frankly, infuriating to you for many years. So how does it feel to see that bleeding into our work in true crime now? It makes me sick. It makes me really disgusted and profoundly sad. I'm sorry, babe. Yeah, it's unfortunate.

[01:04:36] And this is something I feel like we should all keep in mind when we're talking about true crime in general. One thing that drives me nuts is when, and I get it. Like, we all have our own experiences and we all have what we perceive as normal. And I am certainly guilty of that. Everyone's guilty of that. We're all human. I'm not trying to lecture or make anyone feel bad. But when we all talk about, like, you know, the kind of body language stuff that kind of pervades true crime of, like, he won't meet this guy's eyes. That means he's lying. You know, I.

[01:05:05] I. When when a police detective is interviewing someone and they're acting shifty and the police detective picks up on that and goes in a certain direction, I don't have a problem with that. I have a problem with people putting on YouTube, you know, or tick tock or whatever clips of somebody at trial not making eye contact or looking to the side or looking down and saying, you know, oh, wow, they must be hiding something. Or here's what they said at the press conference. But then they looked away. That stuff is not helpful.

[01:05:32] And it's frankly it's frankly offensive because there are people like people with with autism or other, you know, situations where they're going to be neurodivergent. They're going to be neuro atypical in the way that they do things might be a little bit different for most people. So if most people might not have a problem with eye contact, that can be really uncomfortable to somebody with autism and and basically putting all our eggs in the hole. He looked away. That means something basket means that we're basically just being discriminatory towards people who are different.

[01:06:02] And that's that's not cool. And I think that kind of body language stuff doesn't really serve much of a purpose in in the space. Well said. Yep. Well, thank you. And thanks for looking through these. Thank to all of you for listening. We're going to try to do a better job of keeping up with these filings. Yeah. We kind of dove back in with the most recent ones.

[01:06:25] But now that a lot of Delphi has wrapped up and we have more free time, this is going to be something that we're going to be pursuing a lot more of. So stay tuned. Thanks so much for listening to The Murder Sheet. If you have a tip concerning one of the cases we cover, please email us at murdersheet at gmail dot com. If you have actionable information about an unsolved crime, please report it to the appropriate authorities.

[01:06:55] If you're interested in joining our Patreon, that's available at www.patreon.com slash murdersheet. If you want to tip us a bit of money for records requests, you can do so at www.buymeacoffee.com slash murdersheet. We very much appreciate any support.

[01:07:18] Special thanks to Kevin Tyler Greenlee, who composed the music for The Murder Sheet, and who you can find on the web at kevintg.com. If you're looking to talk with other listeners about a case we've covered, you can join the Murder Sheet discussion group on Facebook. We mostly focus our time on research and reporting, so we're not on social media much. We do try to check our email account, but we ask for patience as we often receive a lot of messages.

[01:07:48] Thanks again for listening. So, Ania, before we let people go, I wanted to talk again about the Silver Linings Handbook. And more specifically, I want to talk about Jason Blair, because certainly there have been times when something happens and we don't know what to do. We're just out here rubbing two sticks together, and we need to turn to somebody for advice. I'm sure everybody's had that experience.

[01:08:14] We need to turn to somebody for advice, and one of the people we turn to most often is Jason Blair. And he's always been there for us. He's always willing to give you time. He's always willing to give you great advice. And so now what's wonderful is that everybody within The Sound of My Voice has access to his insights and his compassion and his advice, because you can find all of that on his podcast.

[01:08:41] Yeah, this podcast is a bit like being able to sort of sit down and sort of hear some interesting insights. I always feel inspired by it. He's had on some really incredible guests recently, and they've had just such heartbreaking, real conversations with people like Jim Schmidt, who his daughter Gabby Petito was murdered. Jim just came across just as such a real and empathetic and wonderful human being.

[01:09:06] He was even given – one of Jason's friends kind of told him recently about some abuse she had suffered. Jim was giving advice. I mean, it was really incredible. I'm thinking of Kimberly Loring. Her sister went missing in Montana. It's another case involving a Native woman. So raising awareness about that, talking to the woman who lost her father, who was a Los Angeles Police Department detective. He was murdered so he couldn't testify at a robbery trial.

[01:09:32] Just like awful stuff, but ultimately really focusing on the compassion and allowing people the space to tell their stories. I think Jason shines as an interviewer because he has that natural empathy and curiosity too. Whenever I'm thinking of a question like, oh, I hope they get into this, he's asking it two seconds later. So it's a really enjoyable listening experience. And I feel like whenever we listen to it, you and I end up discussing some deep stuff like religion or what kind of positivity we want to share with the world.

[01:10:02] So I think if you're looking for that and you're looking to have those kind of thought-provoking conversations in your life, this is the show for you. 100%. So I would just say that if you're interested, subscribe to the Silver Linings Handbook wherever you listen to podcasts. Can we talk a little bit before we go about Quintz, a great new sponsor for us? I think in one of the ads that we've already done for them, we talked about the compliments I'm getting on my jacket.

[01:10:29] I know you're a very modest woman, but can we talk about the compliments you're getting on the Quintz products you wear? Yeah, I've got two of their Mongolian cashmere sweaters. They're a brand that just does this sort of luxurious products, but without the crazy costs really well. They give you Italian leather handbags. They do like European linen sheets. You have a really cool suede jacket. And I really like the way I look in my sweaters.

[01:10:57] I like the way you look in your bomber jacket. It looks super cool. You've gotten a lot of compliments when you go out wearing these sweaters. I think I have, yeah. And deservedly so. Also, I'm one of those people, my skin is very sensitive. I'm kind of sensitive. So when it comes to wearing sweaters, sometimes something's too scratchy. It really bothers me. These are so soft. They're just very delicate and soft. Wearing them is lovely because they're super comfortable.

[01:11:24] You're not, you're not, it's not one of those things where you're like, you buy it and it looks great, but it doesn't feel that great. They look great. They feel great. But yeah, I really love them. And you got, you know, your cool jacket. I mean, that's a little bit of a, you're the guy who like wears the same thing all the time. So this was a bit of a gamble for you, a bit of a risk. You got something a bit different. I do wash my clothes. I know you wash your clothes, but I mean, you're filthy. You just made me sound awful. So no, I wash my clothes.

[01:11:50] But you don't really, you don't really experiment with fashion that much is what I'm saying. So this is a little bit out of the norm for you, but I think you really like it and it looks good. Thank you. Great products, incredible prices. Absolutely. Quince.com. There you go. So you can go to quince.com slash msheet. And right now they're offering 365 day returns plus free shipping on your order. So it's quince.com slash msheet.

[01:12:14] That's Q-U-I-N-C-E dot com slash M-S-H-E-E-T.