The University of Idaho Murders: Makes and Model Homes

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[00:03:08] Content warning this episode contains discussion of brutal murder and violence. So today on the murder sheet, we're going to be once again discussing the University of Idaho murders, a quadruple homicide that claimed the lives of four young University of Idaho students in Moscow, Idaho. And their names are, of course, Xander Kernodel, Ethan Chapin, Kaylee Gonsalves, and Madison Mogan.

[00:03:33] A PhD student by the name of Brian Koberger, who was, again, studying at Washington State University in neighboring Washington State, not too far away from the University of Idaho. He is the person who is charged with their murders. He's accused of sneaking into their off-campus house and killing them all with a knife. So that's, you know, been a it's been a long pretrial phase in this case. Lots and lots of motions.

[00:04:03] It's very much like a fire hose of motions constantly. We're trying our best to keep up and talk about the ones that we feel are most relevant. But today we're going to be going over more of those. Let's see how many we can get through. Yeah. 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. We're The Murder Sheet.

[00:04:31] And this is the University of Idaho Murders, makes and model houses.

[00:05:21] So to talk about the first filing we're going to go over, I want to remind everybody that this case has several different sort of pieces of evidence that I think are pretty important. One of those things is the knife sheath found at the crime scene, which apparently contained evidence, DNA evidence from Brian Koberger. That's what the state is alleging. So that obviously puts him there.

[00:05:50] They're also going to be looking at phone activity or lack of phone activity. And one thing that kind of became important was the car. So this is from the state's response to defendant's motion in limine number 12 regarding the make and model of the suspect's vehicle.

[00:06:10] So what's being debated here legally seems to be essentially that the so what the defense is arguing is that there's no one video that shows like a continuous drive of the car from point A to point B. Point A being one of the videos that captured one of the cameras captured the car in a lot more detail than the others, seemingly.

[00:06:38] So that's the video where they looked at that and they said, oh, we can tell what this is. We can kind of figure out make and model and whatnot. So that's an important one. And what the defense is saying, well, there's no video that just kind of like following, you know, follows along that car to the residence to, you know, to King Road. And therefore, you know, that shouldn't be allowed in.

[00:07:04] So are they saying basically that just because you have let's say you have a crystal clear image of a car driving two blocks and then we don't have any footage of that car for the next three blocks. And then after that, we have maybe blurry footage of a car that is of a similar make and model driving by. They say, well, we can't assume that's the same car.

[00:07:29] Yeah. And this is something that so what the defense is saying is, quote, you know, or rather the suspect vehicle was, quote, not identified from surveillance footage in the area of one one two two King Road. That's what they're arguing. Now, what the state is saying is, quote, this is simply not true. End quote. So what they're doing is they're relying on Anthony Imel. He was with the Federal Bureau of Investigation.

[00:07:55] He's the person who they asked to he's a forensic he's a forensic examiner and he was asked to review all of the videos that they collected, all of the still images. And he the clearest view came from Ridge Road. That was where they kind of caught this vehicle.

[00:08:14] And what he found was that, quote, the question vehicle shares similar class characteristics with a fifth generation Hyundai Elantra between 2014 and 2016. Similar class characteristics include but are not limited to the overall body style, window configuration, front grill configuration, headlight shape, side trim, rear brake light configuration, rear license plate position and rear bumper position.

[00:08:41] Position of the rear bumper reflector in the shape of the fog lights assisted in narrowing the vehicle year span. End quote. So what the state wants is for Imel to be able to go to the jury and tell them his opinion that the suspect video from the King Road surveillance footage shares similar class characteristics with that of a fifth generation Hyundai Elantra. But again, the defense is saying, well, that wasn't, you know, that wasn't the best video.

[00:09:09] It was really like the other Ridge Road video that you were looking at. And I found this I found this following to be a little bit devastating on the part of the prosecution just because it really kind of takes you through timing wise with maps of the journey they're watching this this white vehicle, this Elantra take from one point to the other. So you feel it's damning for the defense. Yes, it's not. I mean, this is really not good for them.

[00:09:37] I mean, like when you I think when you kind of hear the defense saying, well, you know, like that's not the same one. Like, yeah, that's that's that's interesting. Kind of perks your ears up. But when you see at what like they include all the time stamps on some of these sightings on the different videos. And what they're essentially doing and they include a bunch of maps, what they're essentially doing is mapping the progress of this car, of this mysterious white car toward the murder scene.

[00:10:06] And I find that that's a. That's something that's going to be, I think, difficult for this defense team to overcome. And, you know, I mean, I think it's important to remember with with something like this, it's not. It's not. It's not going to be able to get up there and say, oh, that's Brian Koberger's car, because look, here's the license plate. But he doesn't need to do that. Like, that's not that doesn't matter.

[00:10:37] I mean, it. You don't need to be the you don't need a license plate in a situation like this when everything else also stacks up against him. Yeah. Now, let's totally rewrite this case. Let's say there's no DNA evidence. There's nothing else tying him to this. And this is all they have. And they can't say it's for sure his car. Then the state has a problem. But this combined with everything else, like every you have to look at the totality. You have to look at everything in conversation with everything else.

[00:11:07] So it makes a lot of sense to me that the defense would be trying to attack this and try to get some of it out. And, you know, it's important. It stacks. Is it the most important thing? I might argue the DNA is. But I guess when I read this one, I was just struck by some of the, you know, kind of just placing it closer and closer and closer. And you're just following this car. This this vehicle is making multiple passes by the King Road residence.

[00:11:36] It's like circling, very predatory. And the prosecution had some kind of funny statements in here. They called the defense's motion illogical. Quote, as argued above, the state should be able to introduce all captured video surveillance surrounding the crime scene preceding the homicides. State's experts should be able to opine based on his analysis and the surrounding circumstances that the surveillance is picking up the same suspect vehicle,

[00:12:01] which he identified as sharing the same characteristics as a 2014 to 2015 fifth generation Hyundai Elantra. His opinion would not be speculative, as argued, but instead based on logical educated inferences from review of the surveillance videos, including observed traffic flow, direction of travel and timestamps. End quote. One other thing to note is that this has come up in a lot of in this document a number of times, but it's really, really early in the morning. You know, it's like four in the morning.

[00:12:30] You're not seeing a lot of traffic out in Moscow, Idaho at this time. So, you know, the idea that two identical looking cars are just both happening to be driving around this area at the same time and somehow pull the old switcheroo and get confused for one another is pretty laughable. Maybe that wouldn't be laughable in a different situation with a different traffic flow where you're seeing a lot of cars. Then you might say, OK, well, I don't know.

[00:12:59] But in this situation, the hour and the lack of activity makes it more of a problem for Koberger. In addition to that, they included, once again, the statement of Brett Payne, Moscow Police Department corporal, who kind of describes his involvement in the case. They kind of include some FBI documentation.

[00:13:23] Speaking of this, you know, just the car trying to explain and also getting into how the white Elantra also was picked up on the WSU surveillance camera. And that became obviously very important in terms of, you know, how Koberger kind of came up on the radar here, too. So, yeah, this car stuff, I think is pretty bad for Koberger. It's really more kind of falls in line with what I think of as like it's certainly surveillance footage.

[00:13:53] But because they don't have a license plate number, it really kind of fits more into timeline things. But, you know, when you have a car being seen around the crime scene, doing all these passes and then showing up back at WSU and that's the type of car he has, then. I mean, what do you think? Am I overstating that? Do you have a different opinion? No. And obviously we've just been through the Richard Allen murder trial in Delphi, Indiana. We just saw timeline stuff was absolutely crucial there. So this is important stuff.

[00:14:22] You're absolutely correct. It's not as sexy as DNA. It's not as sexy as like a murder weapon, obviously. And when I say sexy, I mean like that's what the press wants. That's what the media thinks is a huge deal. Because most people in the mainstream media from experience are completely – they're extremely infected with CSI effect syndrome where it's like we need that in order to feel like this is a good case, which is, I think, completely illogical and not how our system works.

[00:14:51] But that's neither here nor there. This is not as eye-catching. This is not as, you know, grabbing. But when you look at it closely and you have it explained to you, it is – it's pretty devastating. I thought this was interesting. Quote, As the court is seen in the defendant's other filings, the defendant tends to label bad evidence for the defendant as irrelevant and asks this court to prohibit the state from introducing it. That is not the rule.

[00:15:16] Under Idaho Rule of Evidence 401, evidence is relevant if it has the tendency to make a fact more or less probable than it would be without the evidence. And the fact is of consequence in determining the action. The evidence is clearly relevant as the defendant owned a 2015 white Hyundai Elantra at the time of the homicides. End quote. They're noting accurately, in my opinion, that this defendant and his defense team tends to label everything as, you know, irrelevant or problematic. And let's be real, that's their jobs to do that.

[00:15:45] They have to – A thousand percent their jobs. If there's something that is bad for their client, it is their obligation to find any way they can to try to get that excluded from the trial. So that's what you'd expect. So when you see like a big vigorous fight on some piece of evidence where a defense team is attempting to get that removed, oftentimes that can be a tell. We can look at that behavior and say that must – they must consider that pretty important because if they didn't, they would not necessarily be wasting their time. It doesn't mean they have a good argument.

[00:16:15] Maybe they do. Maybe they don't. But it just – it shows what could be important. A couple of other things just from rereading the pain affidavit I just want to go over really quickly. You know, there's been a lot of kind of – What is the pain affidavit? It's a Brett Payne statement that was included and attached to this latest filing that I think we've read before, but I wanted to go over just because I read it again.

[00:16:39] And it's been a while, so some things that stuck out to me talked about how there were latent footprints kind of located in the home by police that were just outside the door of one of the roommate's bedrooms, DM. And that is consistent with her statement regarding the way the suspect walked. This is the person she saw with bushy eyebrows wearing a mask.

[00:17:04] So people have kind of questioned the roommate's credibility quite unfairly in my opinion, to be honest. But this is something that backs up what she's saying. You know, it's not like there's no evidence of what she's saying. We are seeing these footprints that kind of match that. And the other thing I just wanted to mention is I also referenced Koberger posting a Reddit survey about psychological traits and decision making.

[00:17:31] I think way back in the day I said something about that, like, why is he using Reddit for research? But I heard from some researchers and one who pointed out, like, that would be kind of approved of by WSU's standards before he did that. So I think I was unfaring in whatever I said about that. It was a long time ago, but I've been looking back through our emails about Idaho. And thank you for the researchers and the academics who pointed that out. And apologies for overstating that. Should I move on? Yes.

[00:18:00] So a lot of these filings are basically replies to what the other side said or reply to a reply to a reply. So it's like the same discussion is ongoing. And I'm not really sure how interesting you all would find it for us to go into super depth on some of these continuing conversations,

[00:18:22] which at least to a certain extent are just continuing arguments and making again points they've already made. If you want us to do more detail on that, we certainly can. But for now, I don't think we will. One of the big issues that they've been going back and forth on is the Amazon clicks and the Amazon purchases,

[00:18:44] because they have records that show that Mr. Kohlberger bought a knife with a sheath that was consistent to the sheath that was found at the murder scene with his DNA on it. They have records that prove he bought this on Amazon. And they also have some click history, which shows that he was looking for a replacement sheath after the murders. And again, the sheath that he there was a sheath left at the crime scene.

[00:19:15] So if that was his sheath, well, gosh, he'd have a reason to want to replace it. So those things are pretty damning. And understandably, as Anya just said, if something's damning, the defense doesn't want it in. And they've made a couple of arguments for that, which they've made again in another filing, which are basically twofold.

[00:19:38] One is these Amazon records and click history is not complete because more things than just a knife and a sheath were bought during these critical time periods. Let's look at everything that was purchased during that time period. So that's one of their points.

[00:19:58] That's the so-called rule of completeness, which states that you don't want to include just a portion of a statement or a record. You want to include it all if you're going to admit it into court. And there are some certain exceptions to that. And of course, the prosecution believes this is one of those exceptions. And we talked about this in more detail in an earlier episode. Is the goal to just kind of confuse the jury?

[00:20:23] Because I feel like if I were a jury member and it was like, and here he was looking at teddy bears and here he was looking at candy. And here he was looking at a replacement knife sheath that matches the one at the crime scene. And here he was looking at some more teddy bears. I don't think I would care about the teddy bears. I think I would care about the knife sheath. Yeah, I think I would too. I think it's basically they're just trying everything. And the other point they're making, which is a bit more interesting, is that the Amazon account he used was like a household account.

[00:20:53] So other people who were part of his household, presumably family members, were also using the account. And so, geez, maybe it was dad that was buying a knife sheath, I guess, would be the argument. Who's to say? Well, you need to look at whose credit card was used and where was it going to be delivered to. And yeah, whose account it would be on, even within a family context. Because I think we have a family Amazon account. And I think stuff that you're doing would appear differently from what I'm doing.

[00:21:23] Hopefully. Right? Yeah, I'm going to leave the hopefully alone there. But maybe we'll have a conversation afterward. I don't want you to get wrapped up in my serial heist. But that is kind of a nice segue to a discussion of another matter that there's going back and forth on.

[00:21:46] You remember that there was a filing from the defense saying, oh, you know, they're going to have family members of the victims in the courtroom. We don't want them wearing like shirts that have inflammatory messages on them. And by the way, we'd also like family members of Mr. Kohlberger to be in the courtroom. And so the state says, sure, you got nothing to worry about. The judge has full authority to make rules about what can and can't be worn in court.

[00:22:15] And by the way, when it comes to Mr. Kohlberger's family being in the courtroom, that may be a little bit more complicated, folks, because it's entirely possible that something Mr. Kohlberger's family members may be called as witnesses. Oof. What is separation of witnesses? Why don't you want witnesses in a courtroom before they testify? The real question is, why are you asking the non-lawyer on the program a legal question?

[00:22:39] But my understanding is that essentially you don't want witnesses to be able to watch what other witnesses say in their testimony so that they can try to get their story matched to that testimony. That's no, there's certainly no criticism intended to at the Kohlberger family. It's more of just that's what's behind the principle of it. The concern is that when you have witnesses watching other witnesses, they can tweak their story. They can make sure they're answering the question right.

[00:23:08] So the idea behind separation of witnesses is to prevent that from happening and having everyone go in cold. And so the thinking would be that Mr. Kohlberger's family members are going to be potential witnesses. They shouldn't be allowed in the courtroom until after they testify. That raises the obvious question, what might they be testifying about? We don't know. We have no idea.

[00:23:31] But one obvious thing they could testify about was, was it dear old dad who bought the knife sheath or was it Mr. Kohlberger? Things like that are possible. I'm sure there's a lot of other things they could potentially testify to that we don't even know about. Yeah. Yeah. I mean, and it kind of really depends on the situation where separation of witnesses isn't always necessarily required.

[00:23:54] I know in the case of Richard Allen that we went to, at one point there was all kind of hue and cry about Richard Allen's wife, Kathy Allen, potentially testifying. She was in there every day. There wasn't, there didn't seem to be much concern about that or that, you know, because she would have been testifying potentially about like a very specific thing about his Internet search history. So, you know, I think that's a situation where it can depend.

[00:24:22] But in this case, it sounds like the state is basically saying, well, we don't know about that one. So that might block the Kohlberger's from being mayor until they've testified. After they've testified, is it true? Like if they've testified and they're released from their subpoena, they can go and take their seats in the gallery or whatnot. But prior to that, if they're going to be recalled or whatnot and they're not released from their subpoena, it's like, no, you have to stay out. Yeah.

[00:24:48] Because it's not unusual in a trial or court proceeding for a person to testify more than once. And so if you've testified, but somebody thinks, oh, I might want to hear more from that person later, I'm going to keep them under the subpoena. That means you're still, if separation of witnesses was in effect, you still would not be able to come back and just hang out in the courtroom. Jeez. Well, I mean, that's rough for them.

[00:25:12] I mean, that's just as human beings, if their son's on trial, I mean, that's pretty rough if they can't be there for him. But that is how the process works. Another issue that has been ongoing is the defense does not want one of the surviving members of that household where the four people were murdered.

[00:25:38] They do not want that person to come in and describe the killer because she saw the killer that night. And she describes him that he was basically masked and his face was covered, but she saw his eyes. She saw his eyebrows. They were bushy. And they don't want her to be able to come in and say that. And you might ask why. And they let me read here.

[00:26:04] Quote, in this case, if the witness is allowed to say that she saw bushy eyebrows, it would not be different than her pointing to Mr. Kohlberger and saying that is him. End quote. So they're acknowledging that her description. Of who she saw matches Mr. Kohlberger. Don't describe our client, please. That's inconvenient. That's bad for our case. No offense, but what are they? What are they asking?

[00:26:33] I mean, like, this is ridiculous. I mean, that's a stupid thing. I'm sorry. They got to try. But I mean, that's weak. And it's so overt because it's like, oh, don't they want to catch the real killer? You know, maybe it's a different guy with bushy eyebrows in the same car who also left his somehow managed to get Brian Kohlberger's knife sheath and DNA in there. Sure.

[00:26:58] And the defense is suggesting that some of the conversations that this witness had with police around identification were suggestive. In other words, they steered her towards saying certain things that ended up being bad for Mr. Kohlberger. And they give an example of this. And I'll be curious as to what your response to this is, Anya.

[00:27:24] Quote, in the second interview on November 13, 2022, the witness was interviewed at the police department by Detective Mowry, who inquired about facial features and asked the witness if she knew what color the intruder's eyebrows were. Detective Mowry is the person who mentioned eyebrows, not the witness. End quote. Are you kidding me? That seems a bit weak, doesn't it? That's weak. That's really weak. And this was well before, you know, Mr.

[00:27:54] Kohlberger was even on the radar. If Kohlberger had come up on day two of this investigation and, you know, they were like, well, is it a kind of guy with bushy eyebrows or something? Kind of a thin white guy? You know, then maybe you could say, well, they had Kohlberger in mind and they were trying to push her there. They didn't know who Kohlberger was at this point. Didn't know anything about his eyebrows, even if he had eyebrows. He had no ability to do it. So I just I don't even understand this argument. And like, oh, well, he brought up eyebrows. So?

[00:28:27] But if you listen to her description, you know, he's masked. And basically the only part of the killer she saw was his eyes and eyebrows. So I think you would want to ask about those. Now, this doesn't make any difference, legally speaking, because it's their job to just really try to get as much thrown out as possible. They got to try it. What matters is what the jury thinks. What matters is not what the public thinks. And I don't I don't get the sense that this defense team is operating with the idea of what should you know, what the public thinks.

[00:28:55] I don't think they're really necessarily trying to do that from what the filings I've read, which is good. That's their job. Their job should be to try to like, how do we make this case in as good a shape for our client as possible before we get to the jury? So we can present the jury the best version of this case for him. So they're doing the right thing. But just from like a complete layperson's perspective and just like from just like watching this unfold. I mean, isn't that such a tell? Like, don't mention those eyebrows. Oh, I'm sorry.

[00:29:23] I thought this was supposed to be someone else who was doing this, not your guy. They're also the defense is also upset that the prosecution entered into evidence. That picture we've all seen of Mr. Kohlberger the day after the murders, they're suggesting it might be prejudicial. I think it's pretty clear that the reason that picture was introduced is the witness saw the killer a few hours before that picture was taken.

[00:29:51] So she was describing the killer's eyebrows a few moments before that picture, a few hours before that picture was taken. So it seems very relevant to look at the picture of him as he was that day. If someone saw me and was describing me as they saw me when I was in college, they would be describing like a full head of hair and stuff. So a picture of me today wouldn't really be that relevant. You'd want a picture of me as I appeared then.

[00:30:20] Right. It doesn't hurt the prosecution and it certainly doesn't help the defense that the selfie is incredibly creepy. Very bad vibes from that picture. But, you know, I mean, that's not really the state's problem. And I don't know how this defense could say, well, this makes him look really weird and creepy. And because that's just completely subjective on my part, too. I mean, what do you what are they saying is prejudicial? Is that just it looks kind of weird or it's kind of ominous?

[00:30:51] I'll quote, quote, to make matters even more prejudicial. The state wants to admit into evidence a picture of Mr. Kohlberger as if the witness identified him in the photo, end quote. So I guess they're trying to create the impression that she. Your honor, it's not fair that they're describing my client. I mean, yeah, I mean, they got to try. And also, yeah, it's a creepy picture. I think the jury might, you know, people on that might be like, yeesh, what the heck's going on here?

[00:31:17] But I mean, I it's sort of like a lot of this stuff is just it's bad for him. That doesn't make it something that should be thrown out. The other point they bring up is that her first descriptions of this person to reporting it. About eight hours passed before the crime was reported and before she did her first police interview in which she gave her description.

[00:31:44] And so maybe, oh, they say maybe it's possible at that time she was talking to other people. And then, of course, later she saw media reports. Isn't it possible that maybe this kind of affected her memory? I would tend to think that that's the sort of thing that could probably be covered on a cross. But they're asking for it to be thrown out. Yeah, they want her to testify but not be allowed to mention bushy eyebrows. Yeah. And how also how she's the witness.

[00:32:10] What are some experts coming in on TV and saying, well, I don't know, maybe bushy eyebrow people tend to be the people who do these massacres. I mean, where would she have gotten that from? I don't even understand that. And I yeah, I mean, I don't know. I think. Yeah. Like they got to try everything, I guess.

[00:32:32] Another filing that came out recently was they the defense alleges that the prosecution has not been as diligent as they should be in getting discovery materials to them. And so because of this, they believe the death penalty should be taken off the table. They say there has been a ton, a ton of discovery in this case.

[00:32:56] And anytime we get new discovery, it creates new things for us to have to research and respond to. And so because of all this, it's just it's just not right for the death penalty to be on the table. And at one point they say that the state seems to have suggested that one way to solve this problem would be just to continue the trial. But they which means to delay the trial.

[00:33:26] And they say that wouldn't be fair to Mr. Kohlberger. What do you think? I mean, I don't know. I think it would be a huge win, a huge coup for this defense team if they managed to get the death penalty off the table or if, you know, in the sentencing phase, he did not get the death penalty. And that that's how I'm almost measuring their success at this point. Yeah, they're very concerned about the death penalty. They're doing a lot on that. And I think they're doing a lot of work on it.

[00:33:53] I mean, so they're they're working hard and we'll see what happens. So another filing that's come up on you, I'm sure you will remember this. The defense said, hey, judge, I'm obviously wildly paraphrasing. Yo, judge, what's up? Yo, judge. We don't think the state should be allowed to use any inflammatory evidence. What is that? Oh, yeah.

[00:34:23] The state said, wait a minute. What does that even mean? You're not even defining it. Like, what's up, man? We don't want to upset these jurors. This quadruple. Like, it's so it's almost insulting. You know, four kids got slaughtered in their beds. Oh, but like, let's not let's not get this make this inflammatory. It's not some it's it's not like he just pulled some hijinks or did some art heist or something.

[00:34:50] I mean, like four people lost their lives brutally in the middle of the night. It's going to be inflammatory. Well, let's see. So now the defense is responding to the latest volley from the prosecution. And they say, like, what do you mean inflammatory? And they're saying, in essence, well, we don't know what the state is going to do. We just want to we just want to make sure it's not inflammatory.

[00:35:16] That's like me telling Anya before she goes out on a drive. Now, Anya, I don't want you to run into any buildings. I don't want you to speed. I want you to obey all relevant traffic laws. Anya would probably get upset and say, you don't need to tell me that because I'm going to obey the rules of the road. Not even if you don't tell me this. And so I imagine that's how the state will likely respond to this. But I think it was interesting.

[00:35:43] In other words, they're saying, you don't need to tell us not to be inflammatory. We're not going to break any rules. But they do give a couple of examples of what they consider inflammatory. So in one, there was a person who was he ran over somebody, ran over, killed his wife with his car. And so when the person's. Well, let me correct myself.

[00:36:13] A person's wife was run over and killed. And so when that person who lost his wife was on the stand, the prosecutor asked lots of questions using the phrase run over your wife. And it was held that that was inflammatory because it was playing on the emotions of the jury. To just really hammer it in that this person's wife was run over and killed. Okay.

[00:36:43] I mean, is that just also describing what happened? You can certainly make that argument. I could understand if it was a gruesomely crushed under the wheels of the speeding car. I mean, that, you know, that seems a little excessive. But if she was run over, she was run over. I don't know. I'm not aware. So that is what one of the examples they give. And so I guess the argument on their side would be we want to preserve a good record for the appellate attorneys.

[00:37:12] And so if anything does cross the line and becomes inflammatory during the trial, we can point to this motion and say, see, we tried. We tried to make it not inflammatory and they didn't listen to us. And now we should get a new trial. Yes. Yeah. That makes sense. So doing their jobs as usual. Yes. So the next item I want to talk about is a back and forth about evidence being used for demonstrative purposes. Oh, no. Oh, no.

[00:37:41] Why do you say oh, no? It's always all sorts of antics with this. So the state wants to introduce some sort of a model of the house where the victims died. Oh, my gosh. Okay. And they want witnesses when they're testifying to be able to refer to this model. And the argument would be this can help the jury understand things.

[00:38:11] And apparently the defense is concerned that the model would not be built perfectly to scale. And they're also concerned that the model doesn't include things like furniture. And so if you're not including furniture, maybe you're not giving an accurate idea of what the house is like.

[00:38:34] And if it's not built perfectly to scale, maybe you're giving an inaccurate idea about things like sightlines. And the prosecution's contention is we can have somebody come in and testify that it's basically accurate and you can refer to it.

[00:38:55] And we rely upon it and they point to some – the fact that it's – you know, a person can like draw a floor plan of a house. And that can be used as evidence even if the floor plan is not 1,000 percent accurate. So what do you think about this demonstrative evidence business? Well, I think let them use a little model house. I have just a stupid question about it.

[00:39:22] So are we talking about like a – it's like a little house, like a little model house that people – like with no roof that people can kind of point. I was in this room and that room. That's what I would assume. Okay. Like not a big old thing. That would be weird. I don't know how they would even do that. So, yeah. I mean, I guess if they have someone testifying under oath that it's accurate and it's, you know, it's built to scale or it's built to whatever thing they were supposed to do.

[00:39:51] I mean, I think the defense can certainly point out things like, hey, there's no furniture. That kind of throws us off here on under cross. The state says, quote, the state recognizes that we'll need to establish a foundation. The 3D model fairly depicts or represents the floor plan. And that the use of the model will be helpful to witnesses in explaining their testimony and to the jury in understanding the evidence. I think it's reasonable. I don't know. I think they should do that. It probably would be helpful for the jury to see it.

[00:40:20] I always have a hard time picturing things unless I have some kind of visual model. I mean, not always, but certainly with things that are like spatial, like I walked from this room to that room. It's hard to picture that and, you know, not bring your own biases or you're almost picturing your house or something. So I think, you know, that can be good. But I think the defense should also be allowed to say, hey, you know, there would have been like a bed here and a desk here. And this isn't really that accurate. Yeah, I'm the same way. It's hard for me to visualize things unless I'm there.

[00:40:51] In the Delphi case, I don't think I really understood some of the elements of that case until after we visited Delphi and went out on the bridge or underneath the bridge. Yeah, we didn't go out on it. We went underneath. But yeah. I think it's fair for the defense to raise the points. Also, if it's like super inaccurate, then that would be a huge problem. So ensuring that it's as accurate as possible is important.

[00:41:16] So the next thing is a back and forth on self-authentication. So the state wanted to introduce like a long list of evidence saying that this.

[00:41:36] In essence, the rule is if you have evidence that is like a record that is routinely kept by a business in the course of doing business, you don't have to go through the same authentication process. I'm really, really simplifying things there.

[00:41:54] So there was a, they had a long list of things like from businesses and the like that they felt fell into this category and they wanted to just simply admit it. And the state made their case or whether they provided something to the defense and the defense said no.

[00:42:14] Before you even get to say whether or not it meets that exception where it is self-authenticating because it's a business record, you first have to show that it's relevant. And we don't even know if these things are relevant. And so this filing actually includes like a list of these items and there are 60 items on this list. And we're obviously not going to go through most of them. Well, I'm going to mention really a couple.

[00:42:45] A number of these things refer to things that involve like surveillance footage that picks up a vehicle or a person. Or in some cases, there are receipts that shows like, oh, one of the victims in the case was here at this time on the day of the murders because they bought this item that they got to receive for from this business.

[00:43:08] And so this help establishes a timeline and it also goes to show that the witnesses that the prosecution is going to put on the stand will therefore be deemed reliable because what they say comports with this evidence. You're making a face. Okay. No, I'm just trying to concentrate. Yeah. Am I making sense? Yeah, that makes sense. Okay. I always worry that I'm not making sense. No, you made sense. I'm just trying to.

[00:43:37] I'm. It's part of the process. Yes. Makes sense. So a couple of the things on the list I did want to highlight. One of the things they wanted to admit were, quote, quote, de-sale students' records regarding Brian Kohlberger. These documents are maintained by a private university. The state would seek admission of this document pursuant to Idaho Rules of Evidence 8036 and 902.11.

[00:44:07] The state has attached the relevant evidence, which would be introduced to show defendants knowledge of crime scenes, end quote. And this is actually a 12-page document that is attached to this filing. It is called to the top crime scene scenario final.

[00:44:26] And just by reading it, it appears to be Kohlberger's answer to what I'm guessing is like an essay test in a class about crime scenes. And he seems to be discussing what he would do if he was hypothetically an investigator responding to a murder scene that was near a trailer park. Interesting. It was pretty detailed.

[00:44:55] And so, yeah. Wow. Another item on this list is a bit more interesting. Quote, Dick's sporting goods records of sale for Brian Kohlberger. These documents are maintained by a business. Pardon me. The state would seek admission of the documents pursuant to Idaho Rule of Evidence 8036.

[00:45:21] The relevance of this information is that Brian Kohlberger purchased a black balaclava from Dick's Sporting Goods on January 10, 2022. This mask is the same type of mask described by the witness that she witnessed worn by a male in the residence on November 13, 2022. End quote. So that is very interesting because now we have Brian Kohlberger.

[00:45:48] He has the same sort of knife and sheath that the killer had. And he also now we know he bought the same sort of mask that the killer wore on that night. What do you make of that? That's bad for Kohlberger. That's really bad for Kohlberger. Any of these things, you know, in isolation wouldn't be a big deal. Like we talked about with the car or, you know, with some of, I don't know.

[00:46:18] For me, him purchasing that item and then having it be linked to the crime. It's just, you know, this is a case where so many things stack on top of each other. His defense team has a real uphill battle right now. Yeah. If they can manage to get some of this knocked out somehow, which I think is very unlikely because I don't really think they have very good arguments, then they will be in a better position. But it's a lot. They have a lot to get through.

[00:46:45] It seems like there's indications that they're not getting, I mean, that things are not going well with their communication with their client. That also is hindering them. So I really feel like they have their work cut out for them here. But it is really difficult to explain away all of this. I know there are some people who try to and they act like this is yet another, you know, conspiracy and everyone's conspiring to frame Kohlberger. But those people are stupid and we don't need to pay attention to them. I think when you look at this, it's bad.

[00:47:17] All right. So that was the back and forth about these records and whether or not they can be self-authenticated because they are records kept by a business. And that is an exception to the hearsay rule. And we have been talking a lot about exceptions to the hearsay rule, haven't we, Anya? Yes. Especially as applies to. You hear us say it a lot.

[00:47:45] Texts set back and forth between some of the surviving members of the household that evening. And also the 911 call made the day after the murders. The state wants all that stuff to be admitted and the defense does not. And they're still going back and forth about it, folks. Some people say they're still arguing about it to this day.

[00:48:10] The state's argument is that these are exceptions to hearsay because they are excited utterances and present sense impressions. And the defense is trying to make the counter argument. And we've talked about that in detail in earlier episodes, have we not? Yes, we have. Extensively. Now, I have been talking a lot and my throat is getting dry. And I think you are going to take this next section all about Cy Ray.

[00:48:35] So Cy Ray is the defense's, for lack of a better term, I think, phone expert. He is a former law enforcement officer who runs something called Trax. It's a software. It's been used by other law enforcement agencies.

[00:48:51] And he, from what I can tell, it's like basically trying to pinpoint or show that Koberger's phone wasn't in Moscow, Idaho on November 13th, 2022. When the murders happened. So putting him in a different position. Or at least putting his phone in a different position. So this guy has come up before. We've talked about him on the show.

[00:49:22] There's been a lot of back and forth about the quality of this witness. In other legal cases, he was essentially barred from testifying because a judge did not find him to be a credible expert. In other situations, there's been kind of calls for other cases he was involved in to be looked at from that perspective.

[00:49:48] He typically testifies for the prosecution and law enforcement. So there's been even some cries for people to, like, look into that matter for appeals. Of, like, essentially using a bad expert to put people in prison. And, I mean, personally, I'll just be honest. I, this guy seems, just some of that stuff has some red flags to it. But, um, I, I, it, it, that concerns me. It also concerns me.

[00:50:16] I mean, I think he, he's been, uh, he's definitely been leaning into some of this notoriety going on low rent, disreputable YouTube channels. Not speaking about the case directly in fairness to him, so that's good. But, you know, it, I don't know. There's some red flags there in my opinion, but that's just my opinion.

[00:50:39] I would say that I'd be really curious on hearing from other experts about, you know, people who really understand phones and pinpointing locations of phones. Um, but I know that one of the, the judge that basically threw out his stuff kind of said that he was almost, like, exaggerating things and, uh, not, he's not, he does not have an engineering background and basically he's overstating his technology. So, that's where we are.

[00:51:08] Now, he is in, in, in one of these filings. Uh, there's an affidavit from him. It has, uh, it's very fiery. Um, I'll kind of just be talking about several filings that came out regarding him. And one of them is a state's response, uh, to some of this. But one thing he talked about was, um, AT&T call detail records.

[00:51:35] And what Ray was doing was reviewing, uh, FBI Special Agent Nick, Nick Balance's interpretations regarding these call detail records. He says they're vague and contradictory. And he's also saying the FBI Special Agent's methodologies are not clear. So, he can't really analyze them because he doesn't have his methodology. And that's not part of the field standard because he should disclose his methodology.

[00:52:05] And, um, you know, and this is really important because Special Agent Balance's opinions. Quote, quote, And he also says,

[00:52:34] Oh, and also, these opinions and interpretations were not supported by evidence. And, um, yeah. So, he also says that Balance omitted work that is exculpatory to Kilburger. You know, I, I just, I don't really know how much weight to put on this coming from this expert witness, to be honest. You know, there's a, I'm not, I'm not even saying that Mr. Ray falls into this category.

[00:53:02] I just think it's important to remember that there is a class of expert witness that is just hired guns. And they will say what they want. They will say what they are paid to say. And maybe it's within, maybe they won't go, you know, beyond the realm of reality. But they're going to be mostly kind of framing things in a way that's positive for the side that is paying them. And, like, that sounds really brutal. Again, I'm not saying Say, Say Ray is, is one of those.

[00:53:31] But if he is, then I put a lot less weight on this. It seems to be what he's saying is the Special Agent's work around AT&T call detail records. It doesn't have the appropriate methodology. I don't have that. And while he's also throwing in things like, oh, the omitted work is exculpatory. You know, it seems to be kind of like boiling down to like kind of a something kind of smaller than something revelatory.

[00:54:01] I don't know. What do you think? I agree with you. That's certainly where things seem to be going. Now, maybe we'll be surprised. That's happened many times. Maybe this will come out and be the biggest thing in the world. But I think people in true crime get way too. And I saw this in the Karen Reed case. People would be kind of touting, you know, defense experts as like these kind of impartial sages who, you know, were just doing things from the goodness of their own heart.

[00:54:29] And in that case, it turned out like the defense that like was paying them off and not disclosing that even to the court. And it's like we got to be skeptical. I think if we're going to be skeptical of state witnesses, which we should be, I think we should be frankly skeptical of everyone. But we should look at things from the lens of like, OK, you know, what's the relationship here and kind of go from there.

[00:54:53] And the fact that unfortunately, this guy has all this stuff in his background where it's being questioned in court makes me concerned. So maybe maybe he was unfairly treated by that court. I don't know. But I I'm I'm coming from a place of, you know, some some skepticism here. So there's another aspect of this AT&T stuff. Where it goes into timing advance records and this I'm just I'm not a phone person.

[00:55:22] I don't understand any of this. So I'm just going to read what they have here in this defense filing quote that refers to data that is used by providers to estimate the location of a mobile device. The collection of this data is necessary for a cellular network to work properly. Carriers do not. Oh, I'm sorry. I'm getting ahead of myself because this is the state replying. I want to get into what Cy Ray had to say first. Then we if we do the reply first, then what are we talking about? So there you go. But I guess it doesn't hurt to explain what this is.

[00:55:51] So it talks about the used by providers to estimate the location of a mobile device and carriers don't retain this indefinitely. This is where Cy Ray gets into some aspects where it seems like he is actually accusing the state of malfeasance. So shades of Delphi, maybe some Delphi trauma flashbacks for all of you who followed along with that whole situation. But but let's go into it. So he he's.

[00:56:21] He talks about how in his you know, when we're talking about AT&T timing advance, he talks about how he in August of 2021, the FBI asked him to help analyze AT&T timing advance report. And he says, quote, it was the first time I was made aware of this type of data from AT&T. Upon request, it could provide the date, time, location. And so basically he's working on this with the FBI. And.

[00:56:51] I guess he's he's he's saying that, like, that that was a thing as early as 2021. And then he talks about how. There's a specific kind of group within. AT&T, the global legal demand center. He says he's worked with them for 15 years. And he says he knows that that's not the only way law enforcement can get called detail records from AT&T. So that's one way.

[00:57:20] That's not the only way. And one of the other ways they can get it. Is a guy named Boyd Jackson, who is the program director at AT&T. He does he does he does like stuff outside of the GLDC process. So. So that's what that's that's the that's the setup. That's the that's the Cyrae setup. And then we get into he talks about how. Essentially.

[00:57:50] The quote, the first official release of AT&T timing advance data was not provided to law enforcement. Until June 15th, 2023 by GLDC. End quote. Quote. He's he's saying basically there's a chain of custody issue here. Right. He's saying that some of the timing advance records had a certificate of authenticity for April of 2024. From director of GLDC, Stephen Gordon.

[00:58:18] But then he says, I talked to Gordon because I know Gordon. Gordon says Gordon and the AT&T lawyer said that he wouldn't really be the person to know or sign off on that stuff. So what gives what he's implying? What he seems to be saying here is that. AT&T timing advance data should have been gotten by law enforcement in 2022.

[00:58:47] But they but they didn't give it over. So they must have it and they must be hiding it. And kind of specifically accuses one of the prosecutors of malfeasance here, prosecutor Ashley Jennings. So, yeah. He goes, you know, in my nearly 30 years of working with and for prosecutors all over the United States,

[00:59:14] I've never witnessed such deliberate attempt by prosecutors to mislead the court on evidence. Such a plain sight. Anyone making such claims would have had would have to believe the court is incapable of reviewing physical evidence in possession of the state and defense. It rises to the level beyond simple miscommunication or oversight and is clear and intentional misrepresentation in hopes to conceal a much larger issue. So, I don't know. This is what he's saying. This is what the state says in reply. This ought to be good.

[00:59:44] You say, hey, you know. Quote, regarding AT&T, before June 2023, AT&T retained timing advance records for seven 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 13 months. In this case, the homicides occurred on November 13, 2022.

[01:00:11] Brian Koberger 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 Brian Koberger's phone to cover the relevant time period. November 13, 2022. Despite defendants' repeated assertions, the fact of the matter is that AT&T did not provide timing advance records to law enforcement for Brian Koberger's phone.

[01:00:39] State is attaching affidavits from AT&T, verifying that the state did not receive timing advance records for Brian Koberger's phone. So they're saying we don't have what he's saying we're having. And that's it. That's it. So I'm sure there'll be some sort of fiery response that we're talking about next week.

[01:00:58] I'm, maybe it's because I'm burned from Delphi, but I'm always skeptical of when people's go-to is to accuse others of being part of some plot or kind of using the fiery over-the-top language. I know that's compelling, it's compelling for some people, but it's not compelling to me at all. In fact, it makes me, it raises my hackles.

[01:01:19] So my hackles are raised with this and I, I'm skeptical that, you know, I'm skeptical that this is meaningful at all, frankly. Well, let's move on. We're getting through this a lot quicker than I thought. We're doing it. We're doing it. We're getting caught up in Idaho. Yeah, so just a couple more and then we're going to call it an episode. And both of these pertain to autism.

[01:01:48] And one of these, when we discussed it earlier, one of these findings when we discussed it earlier, it was one of the rare occasions on this program when Ms. Kane and I disagreed. Yeah, we're usually a hive mind. So it'll be interesting to see if the state's reply changes one of our minds or not. And this disagreement, do you recall what it was about, Anya?

[01:02:14] It was about whether or not experts should be allowed to come in and essentially say, hey, the defendant has a diagnosis of autism spectrum disorder. So you might see him not making eye contact or stimming or something like that. So, yeah, in other words, hey, jury members, don't judge him because of this. He has autism. You shouldn't even consider it.

[01:02:41] And so that was the proposal by the defense. And you thought that was reasonable and I did not. And the state says, in essence, that it's not reasonable. Why would we have an expert come in and talk about something that is not an element of the crime?

[01:03:05] Because how Mr. Kohlberger behaves in front of the jury in no way illuminates whether or not he is guilty of the elements of the crime. It is just completely irrelevant. And the judge can make clear in jury instructions that it is irrelevant. So they're arguing that it is inappropriate.

[01:03:34] They're saying there's no case law on this. Why would you do this? Does that? I understand what they're saying. And I certainly think that, you know, legally speaking, they may be even correct. But we live in a world populated by humans and jurors are no exception to that. They're humans as well.

[01:03:54] And if you're giving somebody more information about why somebody may be behaving in a way that they might otherwise find very disconcerting, I think giving them more information just from a rational perspective shouldn't be a problem. Now, do I think it's relevant? No. Do I understand why if they started allowing this, there could be a lot of problems and just kind of like kind of, you know, shady diagnoses at the last minute to kind of excuse someone's behavior?

[01:04:23] Potentially, you could see that. I could see that happening or people claiming one thing or, you know, whatnot. But at the same time, I think, you know, I think what it goes to is more of just there's a lot of stigma or a lot of, you know, people find some behaviors that are associated with neurodivergence, neuroatypical people off-putting, to be blunt, especially if there's no context.

[01:04:52] So if someone's doing something and you're the jury and you're watching them, you might be interpreting that as like that is a sign of guilt. This guy is like totally, you know, not looking at anyone in the eye. He's like overwhelmed by the guilt of what he did. And they may – the person may just be autistic and that's not what – they're just overwhelmed and that's, you know, they don't like eye contact. So I don't know. That's kind of what I would think having the expert would be for. It wouldn't be really excusing anything.

[01:05:21] It would be more of just providing context so the jury is not judging. I mean, I think if the judge just says, hey, don't judge anyone for what they're doing or, you know, like that – I don't think that goes as far as having someone say this person is autistic. That's why you're seeing – that's why you're going to see this. Maybe a compromise could be the judge says, hey, by the way, this guy's autistic so don't judge him. I don't know. But I mean, I get why the state wouldn't want it. I mean, that's a reasonable argument.

[01:05:50] I just think on some level, you know, maybe it's better if we kind of, you know, acknowledge that people are different and, you know, kind of provide some guardrails for that not to be an issue. You don't want a guy getting convicted because he, you know, was doing something that people found weird. You want him to get convicted based on the evidence. Right. So our difference remains.

[01:06:18] And the other part of that motion, as you may or may not recall, is the defense suggested that Mr. Kohlberger also had things like OCD, which maybe caused him to have some odd behaviors, washing his hand a lot or doing things that might make people think that he is unusual or somehow guilty of a crime.

[01:06:40] And the state in response says, yeah, we understand that if we get up there and tried to argue that for some reason that Brian Kohlberger is guilty because he washes his hands a lot, that he's like, that's somehow indicative of guilt. Well, then sure, obviously, the defense would have the right to come up and rebuttal and talk about his OCD or some alternative mental health related issues to why he behaved that way. It didn't mean he was guilty.

[01:07:10] And the final part of this filing, the defense argued that Mr. Kohlberger has a developmental coordination disorder that made him physically unable to commit the crime. And the state basically suggests, well, that was an old diagnosis. And so it doesn't really apply anymore. Yeah. Yeah. Well, yeah.

[01:07:35] And also, I don't really think you have to be some sort of world class athlete to murder four intoxicated people lying in their beds. Yeah. I mean, it's a short time span. 13 minutes is pretty quick, but it doesn't really seem like there was much of a fight here. And yeah. Oh, I guess there is one more thing in this particular filing.

[01:08:02] Uh, the defense said, well, there was rules about mental health conditions and when they can be brought in, but autism isn't a mental health condition. There's a physical component because of, uh, differences in a person's, uh, brain. And, uh, I'll read what the state had to say in response to that quote now appears that the defendant wants to offer evidence that his OCD and ASD are actually physical conditions as opposed to mental conditions.

[01:08:30] This is new and the state is attempting to understand how this would be relevant or admissible. The state would note that not having this knowledge before the state's motion in limine was not drafted to address it. End quote. Okay. Okay. We're good. Let's hear him out. So one more filing we wanted to discuss, and this goes back to the death penalty issue and also back to autism.

[01:08:56] You may or may not recall that the defense team argues that Mr. Kohlberger should not be subject to the death penalty because of his autism. Yes. They say that would be, uh, the communities evolved, uh, uh, beyond such things. It'd be a shock to the conscience. It'd be a shock to the conscience.

[01:09:24] And one of the cases that both sides, when they're discussing this issue, whether or not it is, uh, legally permissible to execute a person with autism is, uh, Atkins v. Virginia. This was a case where it said you can't execute a person with an intellectual disability.

[01:09:45] And Mr. Kohlberger clearly does not have an intellectual disability because he's able to go to college and be in some advanced programs.

[01:09:54] So the defense is trying to argue that, well, that doesn't mean much because even if you have an average intelligence, your, uh, for lack of a better word, your disability, which is created by autism would be such that it still limits you in ways similar to an intellectual deficit.

[01:10:19] And I thought this was interesting because they brought up a case I was not familiar with, and I'm going to read you how they describe it. Quote, in United States versus Husseth, the court dispelled the misconception among lay people that high functioning or mild autism terms used by researchers to denote individuals with average intelligence and communication skills does not result in severe impairments.

[01:10:48] The court specifically rejected the contention that the defendant's autism spectrum disorder is mild because he has a high IQ that attended college and could drive a car. Husseth had a full-scale IQ of 123, but despite his high IQ, the court stated, Husseth is severely impaired and in many areas functions at the level of an eight-year-old.

[01:11:11] The court considered evidence that demonstrated that the defendant struggled with daily living skills and socialization despite his high intelligence. Intelligence is not a hedge against severe impairment of adaptive functional ability, the court stated. So that got me interested. What's, what's this Husseth case? So I went and I looked it up and the Husseth case involves, uh, it's a child sexual abuse materials case.

[01:11:42] And this, this man who, uh, has autism was convicted of possessing amounts of child sexual abuse materials. And the way his autism entered the picture was, uh, his autism makes it difficult for him to understand and interpret facial expressions. And so that led to him.

[01:12:09] In addition to that, I should say, uh, his autism also made it difficult for him to have empathy. And so his lack of empathy and his lack of ability to read facial expressions meant that when he looked at the pictures of the children being sexually abused, he was unable to tell that they weren't enjoying it. Are you kidding me right now? Are you kidding me? I'm not.

[01:12:36] This is, uh, what it says in, in the court opinion in the Husseth case. Okay. Well, I'm okay. But what I'm, I'm suggesting here is in order for Mr. Kohlberger's attorneys to be able to use this case successfully for their purposes, wouldn't you have to argue that Mr. Kohlberger's autism meant that he didn't understand that murder was wrong? So it doesn't really seem to fit.

[01:13:06] It doesn't fit at all. But also, are you kidding me? Like, good Lord. Some of these arguments just make me feel like dirty, like listening to, like, the people try to reason away some of this stuff. I know that's their jobs, but yikes. And also, yeah, I mean, you'd have to basically say, well, he, you know, his autism prompted him to think that perhaps people would like being stabbed to death while they sleep, you know?

[01:13:35] So good luck with that one. Yeah, it doesn't seem like you can take the rationale that they use in the Husseth case and apply it in the Kohlberger case. Yeah. So let's get back to the Atkins case. Quote, Atkins stated three reasons why, in that case, capital punishment was inappropriate. Lesser culpability does not merit death. The death penalty does not act as a deterrent for the intellectually disabled.

[01:14:01] And impairments of the intellectually disabled can jeopardize the fairness of their proceedings, end quote. So in other words, Atkins said those are the reasons why we shouldn't execute people who are intellectually disabled. And the defense contends that those factors apply in Mr. Kohlberger's case as well. In terms of lesser culpability, quote, Mr. Kohlberger has at all times asserted his innocence. Should he be convicted of this crime?

[01:14:29] His neurological physical disorder may very well be the reason the jury misjudges him. The public sentiment of prejudice against him and prejudgment of guilt resulted in a change of venue. Media coverage continues to be negative with an overall narrative claiming his guilt. The reality is that he is, in fact, in a category of persons who are less culpable.

[01:14:54] It is widely recognized that autism does affect culpability, moral reasoning, and the ability to foresee consequences of social interaction and processes. What do you make of that argument? What, like social interactions like murdering somebody? I mean, I don't know. They got to make – they got to – I mean, I understand why they're making the argument. I don't find it particularly compelling, but that's just me. Maybe a judge will feel differently.

[01:15:24] The second prong is death penalty as a deterrent. Quote, it is well known that the death penalty is no deterrent at all. That is the reason that many states have eliminated it. It is not a deterrent for anyone, end quote. Well, my understanding is that that is borne out by studies and research is that it is not a deterrent. So I don't think they're wrong with that one. I mean, yeah, I mean, like a lot of heinous crimes get committed by people who are not really exactly thinking about, you know,

[01:15:54] oh, man, if there's – you know, what are the consequences to this action? I mean, people are typically killing others or not really – they're either deciding it's worth the gamble or they're not thinking about that at all. So I mean, just common sense would tell you it's not really that much of a deterrent. No one's sitting around. The people who are going to, like, knock over a gas station and brutally execute the clerk are not the people who are thinking. But, like, what would this mean? Would I end up on death row? And how would that affect my life? It's just, you know, I mean, right?

[01:16:24] The third prong is the impairment of the intellectually disabled. Quote, Mr. Kohlberger does have a diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses. As explained in the expert reports, he has poor working memory, engages in repetitive behaviors, and poor impulse control. His neurological divergence is supported in neuroimaging.

[01:16:51] Mr. Kohlberger's ASD makes a fair and just trial a challenge. The state argues news coverage is not informative on this topic. The state benefits from the biased news media. Public sentiment is that Mr. Kohlberger's physical presentation makes him look guilty through no fault of his own. His flat affect, intense gaze, awkward body posture, clothing still in the courtroom, inability to react and process what is happening in the courtroom,

[01:17:18] and inability to show emotion could cause enough juror bias to convict him. End quote. So, what do you think? Well, I think the knife sheath and all the evidence against him is probably their, should be their number one concern. Like, do I really think that the jury is going to say, well, no, all of that was kind of iffy for us, but, you know, he looked really weird during the trial, so we're going to go with that. No, I don't.

[01:17:44] I mean, like, this is all kind of just a sideshow, frankly. I understand why they're making it a sideshow, but I don't, I mean, they're overstating things as they are wont to do. Yeah, I'd argue that Atkins pretty clearly only applies to intellectually disabled people. Yeah, and also, I mean, I don't know. Maybe if they, maybe if it becomes public, some of these reports they're talking about that kind of goes into where he struggles more than others or whatnot,

[01:18:14] maybe I would reserve the right, you know, change my mind if I saw those. But, yeah, he's not intellectually disabled. The man is in a PhD program. I mean, you know, I think all of this is a sideshow. So one question that came to my mind was, if things are as bad as they say with Mr. Koberger

[01:18:42] and his ability to understand things and help them out, then why on earth aren't they arguing that he's not competent to stand trial? And the truth is, they say, well, we're thinking about it. Anya, can you read that last paragraph? Oh, my gosh. Here we go. This is a wild thing to put in a document. So, quote, competence is constantly being assessed.

[01:19:10] And the reason Dr. Ryan's report refers to the issue is because his ASD impacts his ability to assist counsel and understand the proceedings he faces. He has an inability to assist with mitigation evidence and understand the magnitude of his case. By way of example, when he was arrested in his home with a full SWAT team, doors broken, and parents zip-tied, he made small talk with the detective in the back of the car during the ride to the police station. He asked the officer about his education and suggested that they get coffee at a later date.

[01:19:38] He did not perceive the profoundly serious nature of the moment and exhibited no perception of what was happening. While competency has not been raised in this case at this time, Koberger's team and assisting experts are constantly analyzing this issue. End quote. So, what do you think? If he really doesn't seem to understand the gravity of the situation, if he is really unable to assist his counsel, maybe competency should be on the table. Then why haven't they raised it?

[01:20:07] They say they're thinking about it. Put up or shut up. I mean, that's what I have. I mean, like, truly put up or shut up. If this is such an issue, you know, go for that. But you don't get... I feel like they're trying to have their key can eat in, too. You know, it's like this... Oh, well, you know, we're really worried about it, so it's a really big deal for the death penalty, but we're not going to do anything about it when it comes to the actual trial. I mean, again, they're trying to game it so it's the most beneficial for him.

[01:20:35] And certainly competency, we've heard from other defense attorneys who've come on the show and talked about it. That can raise issues that can kind of hurt your relationship with a client if you're suddenly saying, I don't know if you're competent to stand trial. That's not an easy conversation to have, necessarily, or an easy thing to do, so I'm not downplaying that. But, yeah, it's put up or shut up. And you could look at that and say he has no idea what's going on, or you could look at that and you could see someone getting some amusement

[01:21:04] from the situation, frankly. You know? If you don't take it that seriously. Or someone who's just awkward and uncomfortable and trying to hide it. They're putting one lens and one read on the situation. It's like, oh, he's such a bumbling guy. He doesn't know what's going on. He's incompetent, possibly. Or you could look at it... I mean, you could look at it in any number of ways. Is it an unusual reaction? Yes.

[01:21:32] Does that mean it's specifically tied to some of these issues? No. Because, I mean, I don't know. You could read it a couple of different ways. But I'd be curious about what they mean by inability to assist with mitigation evidence. Yeah. It's all very interesting. And vague. Yeah. And I would be curious to see what they end up doing with competence. I don't envy this defense team.

[01:22:01] I think they have their work cut out for them. I think they have an uphill battle. I mean, they're in a tough place. But that doesn't necessarily mean that you can kind of change the law on the fly to make it apply to Koberger in this situation. It just doesn't really sound like it does. But, you know.

[01:22:25] And frankly, I still feel like at times some of their discussion of autism spectrum disorder has been, you know, has been one way. But, I mean, some people feel it's fair. Some people feel it's fair to point out some of those issues or how they can be disabling. Some people feel like they're being too over the top about it. But I think we see where they're going with this where it seems to be mostly an attempt to get him away from the death penalty. Right. Which makes sense.

[01:22:55] That would be the kind of number one issue in a death penalty case. I think we're caught up. All right. Well, I'm sure we'll be caught up until the next 50 filings hit on Monday. Yeah. But thanks, everyone, for listening. We really appreciate it. 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.

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