The University of Idaho Murders: The April 9, 2025 Hearing

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[00:03:12] So, last week, on April 9th, 2025, to be exact, there was another hearing. That was Wednesday. There was another hearing in the Idaho murders case. This is, of course, the murders of four college students at the University of Idaho in Moscow, Idaho. Their names were Zana Kurnodal, Ethan Chapin, Madison Mogan, and Kaylee Gonsalves.

[00:03:38] And these four young people were brutally slaughtered with a knife in their home that they were living in. I believe Chapin was the only one who wasn't living there full time, but he was there with his girlfriend, Kurnodal. And it's just a very tragic, horrifying case. It's attracted a lot of attention and there's been a lot of speculation about it online ever since.

[00:03:58] Another student, a PhD student by the name of Brian Koberger, who is studying for his PhD program at Washington State University in nearby Pullman, Washington. He has been charged with the murders. He is facing trial and he's also facing the death penalty. So this is all happening. And there was a hearing. And I remember a couple of people actually reached out to us just saying, hey, you're going to want to see this hearing. So I finally got the chance to sit down and watch the whole thing. It's many hours.

[00:04:28] It's very interesting. At moments it was, you know, very gripping. And just basically it's what we're seeing this whole time, which is the state and the defense attorneys going back and forth on some issues as they want to do before trial. So let's talk about it. My name is Anya Kane. I'm a journalist. And I'm Kevin Greenlee. I'm an attorney. And this is The Murder Sheet.

[00:04:53] We're a true crime podcast focused on original reporting, interviews and deep dives into murder cases. We're The Murder Sheet. And this is The University of Idaho Murders, the April 9th, 2025 hearing.

[00:05:54] So. Again, you said this on a previous episode, but a lot of this is just the same issues coming up again and again, both sides getting to make their arguments. It's not necessarily a whole lot of novel information, but I still think it's interesting to discuss where we are with some of these arguments. So, yeah, those of us who've been following this case closely, we're not really going to be surprised by the issues that came up.

[00:06:17] And just a couple of names I think we should go over before we start off with here, because, you know, I don't want to just be calling these people the prosecutor, the deputy prosecutor. So, you know, I'm not going to go into some biography of everyone, but the Latok County prosecutor who's prosecuting this case is a man named Bill Thompson. And he's assisted by Jeff Nye and Ashley Jennings. The lead defense counsel is a public defender named Ann Taylor.

[00:06:43] And she is assisted by Alyssa Messoth. I'm sorry if I'm saying her name wrong. Please correct me if I am. I looked it up on the news and that's what they said. So I'm just copying them. And a number of an attorney who's specializing in DNA, Bicca Barlow, whose name that's a name I love. I think that's a fun name. I think it's really important to give all these people's names because they are all doing hard work on this case and they deserve to be recognized for that.

[00:07:14] And, of course, who's managing all this? Well, previously it was a judge named, ironically, Judge Judge, Judge John C. Judge, which is amazing. And sadly we lost him because there was a – they transferred the venue here. Change of venue. Change of venue. So we lost Judge Judge, but we gained the district judge of Ada County, which is District Judge Stephen Hipple.

[00:07:43] And he rather amusingly – he took over in September of 2024. He rather amusingly said he did not want this case, but he was going to do it. So I don't think we can blame him. You know, high-profile trials like this are very stressful for all those involved and it's not really what anybody wants to deal with. They're just kind of a huge headache. But, you know, from what I saw, he seemed very sharp and on the ball. In a few moments he was pretty funny.

[00:08:11] But he was somebody who was really kind of pressing both sides to kind of make sure that they were getting out what they needed to be getting out. Yeah, I think Judge Hippler – that's the name right? Hippler? I think he – Oh, Hippler. Sorry. I think I said Hipple. Yeah, easy. So many names. But I think he did – he really caught a lot of people's attention with the way he handled this very well. Absolutely.

[00:08:38] So a lot of this had to do with the both sides presenting motions in Limine and then the judge took a lot of things under advisement. So it's not like we got like permanent answers for a lot of this stuff, although I think most of the time we got a pretty good indication of how Judge Hippler was feeling. I guess to start off with, there was the defendant's motion in Limine regarding inflammatory evidence and use of the term murder and use of the terms psychopath or sociopath. These are several motions in Limine from the defense.

[00:09:08] And so one issue with the inflammatory defense claims was the state basically said, what does that mean? Like what is – What is inflammatory? What's inflammatory? What's exceptionally inflammatory? Like what do you want us to do? It's a quadruple knife homicide. Like it's not – it's not like a silly little art heist or something, you know. Like there's going to be stuff that upsets people.

[00:09:36] We're going to see dead bodies of young people who are slaughtered in their beds. Like what are we talking about here? So what Ann Taylor said was she cited Koberger's constitutional rights, rights of rules of evidence, relevant case law. And she basically said she wants to remove the ability of the state to, quote, try its case with an emotional appeal or an excessive use of emotional phrasing or an excessive use of repetitive photographs.

[00:10:04] Quote – she went on to say, quote, certainly we understand that there will be photographs that we may not like that come in testimony. And testimony that we may not like will come in. But what we're talking about is an excessive use of an emotional appeal. End quote. So, I mean, yeah, it's pretty vague what she's saying. And that's kind of – I mean the state kind of pointed that out just like, okay, we're not planning on doing that.

[00:10:34] One issue that the judge took up repeatedly was like, I'm not going to issue an order to tell people to follow the rules because like the rules are the rules. Like you don't need to come into a baseball game and tell the umpire, okay, well, make sure no one like picks up the ball and like runs away to the parking lot with it. It's like, yeah, that wasn't – Yeah, it also would be like if I woke up and said, Anya, I don't want you to steal any cereal today.

[00:11:03] At some point you'd probably find that to be offensive and a waste of everyone's time. Shouldn't even have to say that. Yeah, I shouldn't. So – I think it's also interesting the use of the word excessive there. They don't want these gruesome photographs to be used excessively. How do you define excessively?

[00:11:20] Well, I think one thing that I noticed a lot from the defense throughout this whole thing, and I think it's a kind of sign of the strength of their case or lack thereof, is that they often want to impose limitations on the state that are incredibly vague and kind of could get into some territory where they say something that sounds reasonable on the surface of like, yeah, don't just excessively use emotional appeal.

[00:11:45] But then that can be defined in so many ways that it just seems more of a tactic than anything else. For instance, at one point they're talking about he shouldn't be judged and have aggravating factors based on his autism spectrum disorder. Okay, everyone can say that's pretty reasonable. He shouldn't be – autism shouldn't be an aggravating factor. But then what does that mean?

[00:12:09] And what the judge said at one point is like, you know, if you're telling – like he said, let's use this hypothetical. Some people come forward talking about, you know, Brian Koberger treats women very poorly or whatnot and harasses them. And there's a history of that when we're in the penalty phase. You can argue that's – you know, the defense might argue, well, maybe here's how we link that obsessive behavior to a symptom of autism. But the state might be like, no, he's just a creep, you know.

[00:12:37] I mean like being autistic has nothing to do with treating other people poorly to that degree, you know. And so he's like there's going to be a factual divide there. They might argue one thing. You might argue something else. I'm not going to put my thumb on the scale there. That has to be – you know, that has to be left to people – for people to decide. So, yeah, that was something I noticed again. That was a theme with the defense. They'll kind of introduce something, try to get some very broad thing in and struggle to do so. Interesting.

[00:13:10] Yeah. Then Taylor did clarify that there's, you know, quote, this is not a motion to ask the state not to use the term murder. That's going to come out when the court reads to the jury the charging document that's going to come out in jury instructions. End quote. And then she went on to say, quote, this motion is about the state through its witnesses labeling Mr. Koberger. That invades the province of the jury. Mr. Koberger sits here today. He's innocent and it's up to the state to bring evidence and a jury to decide if that's different.

[00:13:38] The state, by using that kind of term as applies to Mr. Koberger, gets in the way of what the jury needs to decide. End quote. And what kind of term is that she's referring to? Calling him a murderer or that he committed murderer. Or. And what the judge said is, quote, I'm having trouble understanding how this would come up during the evidence phase of things.

[00:13:58] What the judge said, you know, is, quote, sounds like you're asking me to issue an order that says the state should not commit prosecutorial misconduct or the parties follow the rules of evidence. And that's when I wrote down. Oof. Yikes. Yeah. So, I mean, like it like just kind of basic stuff that should be followed anyway. Yeah. Ordinarily, you wouldn't be making comments that the defendant is a murderer until after the jury has found him to be a murderer. And you're in a penalty phase.

[00:14:27] You're in the evidence phase, which is also known as the trial. You're going to be saying, oh, here's the evidence of this or that. And you want the jury to draw their own conclusions. You don't take over the role of jury yourself. This was an interesting exchange. Do you want to. Actually, I'll just read. I'll play both parts here. You're that good of an actor. I'm a one woman show today. Okay. Um.

[00:14:57] The judge made a statement. So Taylor says you're on. Okay. Actually, why don't you be Judge Hitler here? Okay. See what I highlighted? Yeah. So, quote, your honor, I would like an order that the parties will follow the rules of evidence. I'm sure the state would like one, too. I'm not going to oppose that. I thought that was kind of funny. He kind of like interjects and will kind of like go back and forth with the attorneys and some of these things a lot. Um. And he said that in his, um.

[00:15:28] You know, in what he described, what she was asking for is kind of, quote, prescriptive orders that are so broad and vague in nature that they're essentially meaningless. So she she's. But, you know, one thing Taylor kept saying is, well, it's my time. I'm going to ask for it. You know, so. Um, I think you miss all the shots you don't take. Yeah, you got to do it. So, I mean, I get where she's coming from with that. But. And she's preserving a lot of issues for the potential. Well, I'll say this about it in Taylor.

[00:15:56] I thought for the most part, she was had a very good court presence. She was very calm. She was very put together. She was very kind of organized with her arguments. So I thought she did a good job. I think a lot of her arguments are kind of. Like. Ridiculous or maybe ridiculous is too harsh. They're just kind of like, OK, like. Seems more like a you guys problem. Seems more like you have a defendant who's in a lot of trouble than like anyone else is doing anything wrong. But I think you have to work with the hand you're dealt.

[00:16:26] And she's doing that. Yeah. She does not have an especially strong hand. I don't feel that I would be shocking anybody if I say that the state's case against Mr. Coburger appears to be quite strong. Yeah. So, you know, but she's. Again, I was impressed with what I saw for the most part. There were a couple of moments where there was one moment where I felt like it wasn't really her fault. But it was just like what she was what things that had come before kind of set her up for a bad moment. And we'll get into that.

[00:16:57] But she. She also wants them not to call Coburger a psychopath or a sociopath, which is interesting because my understanding and the mental health professionals who listen to this show will correct me if I'm wrong here. My understanding is that those are not considered valid mental health terms. Like if I call someone a psychopath, that's not me. I mean, well, first of all, I'm not a mental health professional, so I shouldn't be doing that. But that's really more of a colloquial term.

[00:17:24] That's a popular phrase in the cultural lexicon, but it doesn't really it's not a valid diagnosis anymore. That's my understanding. Right. There might be some new terms that have taken over to describe some of the symptoms that are related or what we think of when we think of a psychopath. But that doesn't mean that that's something that anyone should be calling anyone else in a court setting. And same with sociopath. So. And again, if I'm wrong, I apologize.

[00:17:54] But that was my understanding. And I. Oh, this is something interesting. And what the judge asked was, like, has he been tested and found to be that? Like, what are we talking about? And Taylor emphatically said, no, there's not been any testing. You're not missing anything. Just just a preventative measure. So, OK. Thanks for that. Staying hydrated is a key part of health.

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[00:19:42] That's A-Q-U-A-T-R-U dot com. And enter code MSHEAT at checkout. That's 20% off any AquaTrue water purifier. When you go to AquaTrue.com and use promo code MSHEAT. Bill Thompson, the prosecutor, if you watch any of these, he's the guy with the snow white beard glasses situation.

[00:20:10] And he basically says the defendant hasn't specified what inflammatory evidence he's concerned about. It's not really defined what is exceptionally inflammatory. Taylor ended up defining that as over-the-top. So, I mean, again, very big. What does over-the-top mean? Too much, man. And what Hitler said is, quote,

[00:20:33] So my concern with the motions is not the substance of them in the sense that I think it is appropriate to highlight those issues that everyone should be cognizant of in fashioning an order. It is fashioning an order that has any real meaning because of the breadth and lack of specificity of the motions. With respect to the use of the term psychopath or sociopath, I understand that there is no evidence that the defendant specifically has been tested and found to be with that diagnosis or personality disorder, if you will. And I understand the state is not intending to, at this point, seek to attach the label apps and evidence.

[00:21:04] So, end quote. So he's basically saying, like, don't use those. But, like, he orders the state not to use them. It's kind of like in a way of like, all right, let's just move on. This is one thing that Hitler said, though. So this is something to be paying attention to during court.

[00:21:21] Can you tell our audience what is an argument in a court context versus, like, when is the only time attorneys should be arguing anything in trial? Which may surprise people because we've all watched courtroom dramas and it seems like a whole lot of argument. But in reality, when should you be arguing typically in a trial?

[00:21:45] At the end of the trial, there's actually a whole phase of the trial, a whole stage of the trial that is called the closing argument. And that is basically by arguing something. We don't mean that you're, like, fighting. You're not getting into a big punching battle with somebody. But when you're arguing, you're making a case for what you think happened. Like, I'm arguing that this is true.

[00:22:11] And it's important to be able to do that because over the course of a trial, a jury hears a lot of facts which may seem random and some things get lost in the shuffle. And so it's important that the attorneys are able to pull all that together and say, oh, do you remember this? Do you remember this? Well, I argue that they mean that the defendant is either innocent or guilty.

[00:22:40] So basically what you're saying is you really can't expect to see people arguing necessarily prior to that. Right. Do some attorneys try to sneak past that? Oh, absolutely not. Attorneys can try. But yeah, typically it's supposed to be just at the end. But people will get a little sneaky. They may say something that's a little bit more argumentative, connecting the dots rather than just presenting the facts. Yes. Because what you're supposed to be like, this is how I think about it.

[00:23:09] I love Star Trek, the original series. So. Yes, you do. I do. So when you have some of the main characters, Mr. Spock is a very, very logical, unemotional person. He's half human, half Vulcan. They're an alien species from the planet Vulcan. And he's just like, he's very, very by the book, very factual.

[00:23:33] And then Dr. McCoy is like this insane man who's the ship's physician and he's always yelling and he's running around and he's doing all sorts of things. So you can be Dr. McCoy during your closing argument. But you really should be more tending toward Mr. Spock during your factual phase. Right. And not drawing any of those conclusions. And apropos of nothing, that's a great example. But I'm wondering. Is it? Or is it stupid? I'm wondering if we should at some point cover. Wasn't there an episode called Court Martial?

[00:24:02] It was like a trial drama on Star Trek. Oh, my gosh. Maybe we should cover that. But I digress. Here's how alien law works. So, you know, that but, you know, people can kind of get a little bit. They can go up to the line. So this is what Judge Hitler said. Quote, I will tell you that the one thing that will get my dander up quickly is either counsel is either counsel attempting to argue outside the one opportunity they have to argue in a case like this, which is closing.

[00:24:31] And I will shut you down faster than you can imagine if I see that. End quote. End quote. So he's saying don't make arguments outside of the context. And what he's saying here is that most of the defense's issues are solved by the fact that arguments are not allowed until closing. Yeah, that's a great point. He's totally appropriate and correct to warn attorneys. I'm going to shut that down because it is inappropriate.

[00:25:00] That's basically the attorney trying to make their case before closing. They're trying to influence the jury while still in the evidence phase. Yes. Not appropriate. So next up, we and here. So no argument, no arguing comments or questions or any statements. So what the next up was Ashley Jennings for the state. And she said, quote, this relates to the concerns of the defense may say something like the state's trying to kill Mr. Koberger or something of that nature.

[00:25:29] So they have their own concerns about the defense using an emotional appeal. So that's an emotional appeal. Like, oh, no, this is our poor defendant. They're trying to kill him. You know, kind of something unhinged. And and Taylor didn't seem to object to that. So it's like, you know, some of these things that might be a little bit. May fly in pretrial filings or whatever. It's just what once people people people kind of I think sometimes everything blurs together, understandably, because there's a lot.

[00:25:58] But it's just like there are tools that say police can use in investigations such as a polygraph or maybe a psychological profile of a possible killer. They wouldn't use those in court necessarily. Most of the time would not use those in court. And just like there's that, there's also, you know, there's things that are OK before the jury comes in versus what's OK in front of the jury. It's like the most specific and purified stuff is to be brought for the jury.

[00:26:27] Like they deserve the best of the best. The rest of us get all the slop pretrial. You got to really refine it for the jury. That's a good way of putting it. Like I'm just getting increasingly unhinged. I'm enjoying it. You love it when I lose it. I look the fool on on this show sometimes. But anyways, so, yeah, that's what she said is that there's been a history of mischaracterization and they just don't want to have that in front of the jury.

[00:26:56] And again, Taylor is like, OK, so the next attorney was Alyssa Massoth. And I'm sorry if I'm saying that wrong. This is when we're getting to 404B evidence. What? No, no, no, no. I've been yammering on. What is 404B evidence that you speak of? You must tell us. You must tell us what this is. Basically, it pertains to character evidence. A person is not on trial for being a bad person.

[00:27:24] That's not a criminal offense to be a bad person. A person is on trial for allegedly committing a specific offense. And so you can't bring up prior bad acts that person did unless it is somehow related to that offense. So if Anya is on trial for stealing cereal, I can't say, well, you know, in 1995. When I was one.

[00:27:53] Anya threw a temper tantrum that really upset a lot of people. Because maybe that's true, but it doesn't really reflect on whether or not she committed this specific offense. But it's entirely possible that people would say, well, Anya threw a temper tantrum. Would she? A person who throws a temper tantrum might be the kind of person who would steal cereal. So you don't want people to make that conclusion. Does that make sense? That does make sense. And so I think what this is coming up to in regards is the traffic stop.

[00:28:23] There was a traffic stop of Koberger. And this traffic stop apparently occurred on August 1st, 2022. And it occurred in Moscow. Or I believe it either occurred in Moscow or it involved him talking about Moscow in some capacity. And what the... Oh, no, I'm sorry. I'm jumping way ahead of myself. There's two parts of this. So the first one is actually Amazon.

[00:28:52] Amazon, like, shopping. So this is a... He bought a knife and a sheath on Amazon. Yes. Or a knife. What did he buy on Amazon? Well, actually, no, this is... There's so much with this. So actually, let me go all the way back. Actually, this is a term paper. He wrote at DeSales University a term paper that got into how to clean up a crime scene potentially. Right. Crime scene investigation techniques. And so the judge asked, well, how is a term paper a prior bad act?

[00:29:22] It's not a situation where we're showing him previously cleaning up a crime scene. He's just indicating that he knows how. So that doesn't even apply here. So what the defense's argument was just didn't really fly with him. And then this is what he said. Quote, 404B doesn't exclude evidence of planning knowledge or intent that's not anchored to a bad act. And so I don't see how 404 relates at all to the DeSales paper. And then they got into Amazon.

[00:29:48] So that's when we got into the situation with the purchases and whatnot. So what purchase in particular? I believe it was the replacement knife sheath. Right. That would have replaced the one that was lost at the crime scene by the killer. So this is... I just thought this was like... I love this judge. He just seemed so exasperated at points. But he seemed to be trying to be patient with people at the same time. This is what he said at one point. I'm just going to play it. It's not a bad act to purchase things on Amazon.

[00:30:19] Well, so yeah. That's kind of what's going on there. And you can hear it. He's just kind of like, what? Which is kind of how I felt watching this. It just didn't seem like what they were arguing fit the facts of the situation. And they also got into... I believe this is where we get into the... So 404 gets into this traffic stop. So this is from August 1st, 2022.

[00:30:49] And this is what the defense said makes it more prejudicial than probative. Quote, or rather, let's say bullet number one. The traffic stop proves presence in Moscow. Two, the traffic stop occurs at night. Three, it is a visual of the car that is not just the make and model of the alleged suspect vehicle. It's like we're seeing what he's actually driving. Four, it is Mr. Koberger makes a statement that he doesn't think state seatbelts provide much in the way of safety.

[00:31:21] Five, Mr. Koberger has a question about why the police need his phone number. And six, Koberger has a question about how the officer reacts when people lie to him about wearing a seatbelt. So what the defense is saying that this is prejudicial. And, you know, yeah. What do you say? I'm sorry.

[00:31:51] What the judge basically said is, quote, you don't get to tell the state how to try their case unless they're violating the rules of evidence. And she said, of course, I don't get to tell the state how to try their case. But I do get to tell the state what our position is regarding the evidence when we think that evidence is overly prejudicial and can be construed to do things that the state is otherwise. Massive. I don't like her delivery. I'm sorry. It's just maybe just a personal personality thing.

[00:32:14] I feel like she's about to flip out every time she talks. And it's just like, just chill out. You know what I mean? Like, I just don't think it's an effective delivery. And there's a lot of lecturing from her that I just I don't think she has a good courtroom presence. That's just my I mean, if I were a juror, I would not find that compelling. I would find her deeply annoying. Um, so this is. At one point.

[00:32:44] So she got heated during this exchange. At one point, Thompson comes forward and says, quote, I think after what we just heard, we can cut to the chase. The defendant doesn't seem to understand what the balancing test under rule 403 is. There's no question that the video with the evidence, the defendant's admission of his identity with his admission, blah, blah, blah. So basically they go into like, you know, this isn't prejudicial. He's just we're just proving that this is his car. This is his information. This is his address.

[00:33:12] Yes. And when we talk about rule 403, that's, you know, excluding relevant evidence if the probative value is outweighed by, you know, danger of unfair prejudice, confusing different issues, misleading the jury undue delay, like different other aspects would fall under that umbrella. So they're arguing 403 here. And, yeah, and basically what Thompson says is just because Koberger doesn't like it doesn't mean it should be thrown out.

[00:33:41] Um, the judge kind of came down in the middle here. How so? Well, he basically was like he sees the purpose of identifying Koberger, identifying the automobile, you know, and he said basically just because it's more powerful evidence to show the jury a video of this does not mean that it's prejudicial. It's just more powerful because what the what the defense said is, hey, just showed the DMV records. And he's like, just because that's not, you know, no.

[00:34:11] The one area. Um, where he is a little bit concerned is not Koberger, not giving his phone number or kind of being hesitant. And what he said is that, you know, what they can do there by, you know, mitigate that by redacting it. So you kind of cut that part out of the video. Why did he think that was more prejudicial?

[00:34:35] Um, he says he could change his mind once he reviews it closer, but he just felt that some of those interactions could be. A little bit iffy. That somebody might somebody might look at that and say, this guy is something to hide. Yeah. I guess the thing to remember is it's really important to protect the rights of the defendant. And sometimes if there's close calls, it just makes sense to give them to the defense. Yeah.

[00:35:05] You want to protect the case from an appeal. Yeah. And you want to protect the rights of the defendant. Yeah. And, uh, this is what the judge said. I think this is absolutely correct. Because I think sometimes the way defense attorneys talk about jurors, it's just like jurors are just, just fools. Like just these people can't tie their shoelaces. I think that's a lot about, I think that's actually how a lot of true crime creators talk about jurors. I think that's appalling and ridiculous. I think, uh, I'm not saying you can't get a bad jury. You absolutely can.

[00:35:33] But like, let's give people some credit here. This is what the judge said, quote, I think there's zero danger that the jury will conclude that because he didn't wear a seatbelt or sped that he therefore has a propensity to commit murder. I just can't imagine any reasonable person coming to such a conclusion. I think he makes a good point because the fact of the matter is there's an excellent chance that every single member of that jury at one time or another has broken a speed law or not worn their seatbelt.

[00:36:03] I know I've done both. Kevin. Um, but yeah, I mean, every, everyone, everyone has done something they shouldn't have in a car. I don't think that would make most people conclude that anyone's a murderer or even a bad person. It's just, you made a mistake. It was a bad idea. Whatever. Um, now we get into a part that I just, again, was like the delivery was just not there for me.

[00:36:27] This, uh, concerns the ability of Brian Koberger's family to come and be in the courtroom during the proceedings. Can you talk about the separation of witnesses as a concept? So there, there is, as you say, a concept called separation of witnesses. You don't want, you want people to testify honestly and accurately about their election, recollection of events.

[00:36:56] You don't want them to be like, if Anya and I are both going to testify about something. And if Anya is in the room, when I testify, it's possible she might change her testimony to be more in line with mine, either consciously or unconsciously. And that's not a good way to get to the truth. A better way to get to the truth would be to have Anya and I be separated.

[00:37:22] I come and I give my best recollection and then Anya comes and gives her best recollection without having just heard my version. You want people to have their own independent recollections and not tailor it to fit what they've just heard in court. Now, in some instances, if people don't really have any, if they're not going to be called as a witness or alternatively, they're going to be called as a witness, but they're going to speak to something very, very limited. What I'm thinking about here is specifically Delphi.

[00:37:49] In that situation, we had members of Richard Allen's family, the defendant's family, in the courtroom the whole time. Had they been called, it would have been, you know, some of them were not called. Others were. The ones who were testified about a very narrow topic. And so I think in that case, there was probably a stipulation where it was like, well, we don't, you know, the state doesn't care if they're in there. You know, it's, they're not, it's not like, oh, we need to get our story straight. It's just about like their own experience. And again, very narrow.

[00:38:19] So in some instances, people stipulate and it's not a big deal. Here, it's becoming more of a big deal. So Masseth is complaining that the state put client's family members on the witness list, but they hadn't subpoenaed yet. And they had not interviewed them yet. And quote, they know that Mr. Koberger's family does not have any interest in helping him, in helping them. That was kind of an awkward misspeak. Misspeak.

[00:38:41] And he also talks about, quote, she also talks about, quote, they also know from watching all of Mr. Koberger's video visits how much his family loves him and supports him. And that he's absolutely dependent on them, having been in isolation for almost two and a half years. And by the time we get to trial, it'll be almost three years. End quote. This is the kind of over the top knot. Like, why does the state care that his family loves him? I'm sorry. Like, this is about getting to the facts. This isn't some like, you know, cuddle fest about making Brian Koberger feel better. However, that's my take.

[00:39:09] Maybe that sounds harsh, but I couldn't I don't give a I don't I don't care about his family relations. And, you know, if they don't want to help the state get to the truth, then that says something about them, I think. And this is where things come down to what the judge ended up saying is, well, Ashley Jennings, the state, can't you just call Brian Koberger's family members early on? And Jennings is like, that's going to mess up our whole narrative.

[00:39:37] Like, we have a whole way of doing this that we're trying to you want to tell a story in the case of Delphi. Nicholas McClelland and his team, they told a very chronological story that took you from start to finish. And it ended up, in my opinion, being very effective. So what Jennings is saying, we have something like that. We want to tell it in a certain way and that's going to throw us out of order. And what the judge said is, quote, this is like gumbo. You're going to put all the pieces that go into that into the pot. At the end of the day, the jury is going to decide whether it's a good soup or not from the state's perspective.

[00:40:08] What a what a wild thing to say. Well, that just sounded like something out of like a bad, like courtroom drama. I loved it. And, you know, he's just able to call him early on. And what Jennings said is, quote, I do take issue with the defendant being able to direct how the state presents its case to a jury. End quote. I thought this was ridiculous. I mean, what do you think? I think I think it's ridiculous that they're having to rearrange things so he can have like a security blanket in the courtroom during this whole thing.

[00:40:37] And what the what the you know, what the what the defense is saying is, well, the family needs to be seated behind him or people will think, you know, come to the wrong conclusion. Well, I mean, once they're done testifying, they'll be seated behind him. So I think the jury can kind of fill it in. I don't think the jury is going to walk away thinking, wow, they really hated him for the first half of trial and then suddenly change their minds. They're probably going to be like, well, they testified and then showed up. I mean, I just I just think this is ridiculous. I don't know. Oh, but this is this is where it gets worse.

[00:41:07] What what Amassith asked. The judge to do was, quote, there's also, judge, a level of humanity that I hope you can take to serious heart for his family who are absolutely devastated and dealing with things like headlines that they're going to be called to testify against their son with these types of communications that are happening. And she urged him to find that humanity, I guess, implying that he's inhumane if he doesn't make the other decision. And like I just I wrote some choice things down that I'm not going to repeat.

[00:41:37] I mean, you know, you know who who's also devastated? I don't know, like the families of the four victims who had their kids slaughtered in the middle of the night. So, you know, a lot of devastation to go around. And the level of entitlement here did not endear me to this argument. I'm just being honest. I know that's an emotional reflection, but I don't get it. I don't get why the stage should have to mess their stuff up just to accommodate this guy. What do you think? Do you have a different opinion? I don't think my opinion is quite as harsh as yours. You didn't listen to this thing. No, I didn't.

[00:42:07] I was in the minds. No, I'm just kidding. No, I also recognize that my level of irritation with the delivery here may be affecting some of my thinking. I think it's a complicated question. You want to balance everybody's interests. And also, I'm not even sure how effective the concept of separation of witness is in an age where all these proceedings are going to be shown on television and reported strenuously.

[00:42:35] You know, in the old days, even now in most cases, if you're not in the courtroom, you don't know what happened in the courtroom. But now you can just go online or pick up a newspaper and see all of this stuff. It feels to me like something could be worked out. Hmm. Yeah. I just think the emphasis on, like, you know, I mean, yeah. I think you're right.

[00:43:02] I think a lot of this is kind of a relic of a different age. So. Let's go back to I think what the judge hinted at, just something for people who are noting this, is that it seems like a lot of the stuff with the family could be relating to the fact that there was a family Amazon account. So, you know, who bought the knife sheath? Who did, you know, who did some of those purchases?

[00:43:32] Who bought the knife? Things like that. Yeah, that could be an absolutely crucial issue. But. I don't know if another member of the family is prepared to say that they bought the sheath. I mean, if that's the case, then that's just totally ludicrous. But, you know, it was done under his name on the Amazon account is what I learned from this. It's not like it was ambiguous there. And presumably it was shipped to his address. Right.

[00:44:02] So this is going back to Ann Taylor, lead defense counsel. She says doesn't want autism spectrum disorder to be used as an aggravating factor. What's an aggravating factor versus a mitigating factor? We talk about this constantly. We talk about this constantly. If a person has been convicted of an offense, there's usually a range of possible punishments they can be given. It's usually not just, oh, if you did this, you get five years.

[00:44:31] It's usually, say, seven to 12 years. And so how the judge decides which sentence to hand down is based upon his evaluation of so-called aggravating factors and mitigating factors. Mitigating factors are things like, oh, this may not be as bad as most crimes of this nature. Or maybe this person showed a lot of remorse. And aggravating factors would be things that make it worse.

[00:45:00] That maybe the person committed the offense in an unusually heinous way. Therefore, he deserves a stronger sentence than average. So you look at the aggravators, which would make the sentence be worse. And you look at the mitigators that would make the sentence less. And you use that as part of your internal formula to come up with the appropriate sentence. Right. That makes sense.

[00:45:24] And in this case, what she's talking about is there were apparently a lot of interviews done with people that Koberger was in classes with at Washington State University. And Taylor said that they had unkind things to say about him. Awful comments, mean comments, you know. And that basically looking through the lens of autism, you know, that might explain why their comments were so negative about him. So that's what she's claiming. So, I mean, without knowing exactly what they were complaining about.

[00:45:54] Like, if people are saying, yeah, he refuses to make any eye contact with me. And, like, you know, like, I don't know. Like, that has a hyper fixation on some interest. Then maybe there's a point there. I don't know. But if it's just like he's kind of an unpleasant person. I think we're getting into the realm of, like, they might say that's because of autism. And then other people might just think he kind of is not a great guy. Right. So, like, where's the line?

[00:46:21] And so and that's where the judge basically said, like, if, you know, if if you're saying it's because of autism, then the state's saying it's because he's a bad person. When we're talking about the sentencing phase, like. At a certain point, there's going to be like different schools of thought. Then Bika Barlow came in. Barlow is the DNA focused lawyer who's working on the case, does a lot of work with DNA. So she acknowledged one of the things she wanted to talk about was the testimony of Dr.

[00:46:49] Middleman at motions moot because he's not being used because of all this. So this is all this stuff with the back and forth about investigative genetic genealogy. She acknowledged here for all the conspiracy theorists out there. She acknowledged that the only thing that sent police to Koberger was investigative genetic genealogy. So there's always been this like, oh, well, were the police looking at him earlier? It must have been something. No, no. I mean, she just she spelled it out here. I.G. G. Led them to Koberger. And.

[00:47:21] You know, what she's concerned about is there's been some stipulation, I believe, or at least some preliminary talk about like, well, we can just say instead of I.G.G., we got there was a tip that led to Koberger. And what she says is, like, what if the jury gets curious and asks about that? I don't know if Idaho is one of those states that allows jury questions. What was said here implied that it might be. But I don't know for sure.

[00:47:45] And what what she's what the judge said was like, it may be that you might have come up with some instructions to the jury, basically saying, you know, we're not going to tell you what the tip is and you don't need to consider it. End quote. And he invited her to figure that out with opposing counsel, what that would say. So that seems pretty reasonable. And then Thompson got up there and said, I was curious what the defense meant in their reply when they said that the testimony about the tip should not falsely suggest other evidence. And I still have no idea what that means.

[00:48:12] But we are happy to engage in discussion about a jury instruction like the court outlined. And then he went on to say, basically, we've come in complete full circle. We told you at the beginning we're not going to be bringing up I.G. We're just going to be. Vaguely referring to a tip. And now here we are. And this has taken up a lot of the court's time. And it's been a waste of time. He didn't say waste of time, but that was reading in between the lines. And, yeah, also, he wanted it on the record.

[00:48:39] Hey, you know, motion limine 11 accused us of a bunch of egregiously unethical things. And I want to put on the record that we did nothing wrong and that's not true. And they said, basically, Detective Payne, one of the lead investigators, is going to testify that they got a tip. And that's what led them to Koberger. After thousands of tips that they were unable to substantiate, they got one that led them to a guy whose DNA was a match to that found on the knife sheath at the crime scene.

[00:49:11] Now we're getting to third party defense. What does that remind you of? Obviously Delphi. That's the idea of a defendant saying, it wasn't me that did this. It was some other guy or some other dude did this. That's a technical term, dude. Yeah, it's called the Soddy defense. Some other dude did it. I love that.

[00:49:32] And so the question is, what kind of evidence do you need before you can go into court and say, John Doe did this, not me? Well, why can't I just go on a dartboard with a bunch of random people's faces on it, throw a dart, hit one of them and just accuse them? What's the problem with that? There's a lot of problems with that. For one thing, what about the rights of John Doe?

[00:49:55] John Doe should not have to be publicly accused of complicity in a murder in a trial unless there's actually some evidence suggesting that he might be involved in the murder. Imagine that. And in addition to that, it's a waste of the court's time if you're just going through the phone book and picking names at random and saying this was the guy that actually did it. But isn't it kind of mean not to let the defendant just do whatever they want?

[00:50:24] This is a little treat. No. You have to protect everybody's rights, including the rights of the people that they would point their fingers at. OK. OK. So what the state said was that their concern is that, quote, they don't want this happening. Quote, the defense focusing on specific individuals without meeting a threshold.

[00:50:45] Showing of connecting that that individual to the homicides and our concerns actually are reinforced by the defense response to our motion. When we're looking at pages two and three at the bottom of the page, the defendant says this case is full of alternative perpetrators. And there are so are there are many alternative perpetrators that suggest to us the defendant is going. And this is what his commentary is. That suggests to us that the defense is going to shotgun any variety of people's names.

[00:51:13] And we think they can't do that without making the threshold connection first. So that's basically what I said. You can't go in and accuse someone of committing this crime unless you can make some sort of threshold connection. Here is some evidence or here is something that suggests this person actually did it instead of my client. It can't just be random.

[00:51:37] He's he cited state versus Meister and he also rules of evidence for one, four or two and four or three. And massive agreed with Meister. She said that that we are not she said we are not throwing spaghetti at the wall. We're not shotgunning anything. We're going to we're still in the process of investigating. There's been lots of briefings, lots of discovery. And they're going to they think she said that they're going to do their, you know, prove it. So that's where we are.

[00:52:05] Back to Barlow, we're going back to the DNA. So this is around touch DNA. And statistics. So and just DNA in general. So there was a fingernail DNA evidence in under one of the victims fingernails, which frankly. To me, isn't super compelling because you can get that any number of ways. Right. Yes.

[00:52:30] If there's like bloody tissue under somebody's fingernails, maybe they scratch somebody. If it's just like. Some minor accumulation there that could be any of number things, especially for people with longer fingernails, I think. But, you know, what what the defense did was they retained a DNA firm, cyber genetics, and they use a different statistical tool than the Idaho State Police Lab.

[00:52:57] And cyber genetics generated a statistic which they felt was strongly exclusionary of Koberger's DNA under the fingernails. So, hey, that's not Koberger's. And what the state's expert is doing is they're not going to testify that it excludes Koberger. But there's a reason for that. The reason, according to Jeff Nye, is, quote, the states. Well, I'll go into what he said later.

[00:53:24] But basically what they're saying is, like, they have a specific way of analyzing this that they can't fully exclude something unless it reaches a certain threshold. This doesn't quite reach that. But what he's saying is we're not going to say the DNA might be Koberger's.

[00:53:40] But we're saying, quote, the state's theory here is that one would not expect the perpetrator's DNA to be under her fingernails given the eyewitness account of what the perpetrator was wearing, the complete lack of any defensive wounds on this particular victim and the toxicology report. So what do you take from that? What do you mean? Well, what I take for that is that this victim didn't fight back. Yes.

[00:54:04] And that they're going to be testifying or there's going to be testimony saying maybe toxicology indicates that she was extremely intoxicated. She doesn't have any defensive wounds. Therefore, there's no like she wouldn't have scratched this guy. She would have been basically. Incapacitated while he attacked her. And so much of him was also covered. Yeah. Yes. And then there was talk about the use of the term touch DNA. Arlo does not want touch DNA to be used.

[00:54:33] She says the touch DNA implies that I, you know, that Koberger touched something and then left it at the crime scene. She even used an example using Nye. She said Nye was just at this podium. I put my hands on the podium. Maybe I have some of his DNA on my hands. Maybe I go back and touch my phone and then suddenly it's there. That doesn't mean Nye touched my phone. So if you say touch DNA, that implies something that it shouldn't.

[00:54:56] But what the judge pointed out was that Barlow's own expert uses the term touch DNA numerous times. What Nye said, I said basically like our expert can acknowledge the limitations of touch DNA. But like we don't want a situation where our expert or some other expert accidentally says touch DNA and then suddenly we're in a mistrial. Like it's a it's a standard term.

[00:55:25] So I think the judge said we're just going to do some jury instructions around clarifying what this means. That makes sense. And Taylor next wanted the suspect vehicle. Number one, she wants the police. So there's video all around Moscow capturing this vehicle. It seems to be the same vehicle heading toward the King Road residence where the victims were killed. And what she wants is like, don't say that's the same car, definitely.

[00:55:54] And they're like, well, Ashley Jennings is like the expert is going to testify that's the same class characteristics to the type of car that he has. Again, this is just kind of like overly broad kind of stuff we were talking about. Next, we're back to bushy eyebrows. Thank goodness.

[00:56:14] This is the eyewitness saw bushy eyebrows on the killer and the defense says, well, gosh, our guy, Mr. Kohlberger, he has bushy eyebrows. So we don't want you to mention the bushy eyebrow part of the description. Is that basically it? Yeah. Yeah. Massoth said that the testimony between.

[00:56:38] Well, she talked about the science of memory and the Manson Biggers test and whatnot and said that the lighting was unclear because the lighting on the stairs was not lit. The kitchen may have been on. The kitchen lights may have been on. The twinkle lights in the living room may have been on. She said that the witness only saw the person for a second, maybe three feet or further away from her. The witness said that they were probably very drunk. She went on to list all the drinking she did that day.

[00:57:08] She said in terms of accuracy, the witness was certain that the person was white, not insanely tall, did not mention eyebrows at first, only later in response response. And said she was in a state of frozen shock, a dream state, fuzzy and cloudy. She said that there's too much possibility for confabulation where the witness filled in the gaps and, you know, post event exposure from the media. What Jennings said. And my initial thinking was like, well, why would the eyebrows come up?

[00:57:37] Because he's wearing a full face mask. And that's probably one of the only things you can see in addition to his eyes. So, like, what's the, you know, like, okay. Like, so what Jennings said is that Manson Biggers is about law enforcement identification. That doesn't apply here. They didn't know who Koberger was until IGG. She's talking about the bushy eyebrows just in the context of, like, hey, that's what the guy had. There's no, like, trying to get to Koberger. Does that make sense? That makes sense.

[00:58:04] And this is also something that was covered in a bunch of their filings over the last few weeks. Mm-hmm. And I told you a lot of this was repetitive. And I'll say I'll be repetitive, too. It seems to me a lot of those issues you raised about the value of the testimony about the bushy eyebrows, it seems like those are perfectly valid issues to raise in cross-examination. Yeah, that's what the judge basically said. It doesn't, they don't seem to me to be reasons to exclude it.

[00:58:32] They seem to me, though, to be reasons that should be presented to the jury so the jury can have that and then use it to weigh whether or not they place much value on the testimony. And Jennings said that in three of the four interviews this witness did, she mentioned the eyebrows. And that was the only part of the face she could really see clearly in addition to the eyes. Then Taylor went into, so the judge took it under advisement, but, I mean, I'm imagining that that comes in.

[00:59:00] Then we're getting back to the startling event. Can you talk about what that means in the context of hearsay? So hearsay is statements outside of court that aren't sworn. Usually in court, we only want people to come in and say things that they are willing to take an oath. This is true.

[00:59:22] Because when they do that, they take the risk of having to face a penalty for perjury if they lie. And it's just in our normal course of life when we say things to each other, we're not under oath. And so those things are considered hearsay, not as much weight placed on them. And the vast majority of time, hearsay is not allowed in court. There's all sorts of exceptions, though.

[00:59:50] And so excited utterances and things of that nature, this all goes to the, I'm guessing, the 911 calls and the text messages, which technically these are communications that are not sworn, not given under oath. They were given outside of court. So technically that's hearsay. But they want to include them and they're saying, the state wants to include them and they're saying, these are excited utterances.

[01:00:17] They were given in the heat of a moment. And so they should be allowed in. And the thinking for the so-called excited utterance or relating something immediately is a person doesn't have time to really cook up a lie, for lack of a better term. If something shocking just happened and they're telling you about it immediately, the odds are they're giving you an accurate account. Yeah. And that's what the state is contending.

[01:00:45] What the defense is contending is, well, you know, DM, one of the witnesses saw this guy in the middle of the early morning and then she didn't do anything about it. And then they were all messaging each other. And then later on, they kind of came in and it was clear that they needed to call 911. And so it's not really an excited utterance.

[01:01:06] And the judge kind of actually tended to have some concerns about the 911 call because what he was focusing on a little bit was like at one point, one of the one of the kids who was at the scene was talking about, well, they had a man in their house the night before and he had some issues with that. So he kind of he grilled Jennings about that quite a bit and was kind of like, you know, he seems to disagree with the state.

[01:01:31] And he's not really he said he basically wasn't really hearing anything other than the completion doctrine as far as including all of it. So why would that or utterance where someone said they had a man in their house the night before as all these kids are sort of excitedly talking? Why would that be potentially a problem as far as you know? Would that just be like that person heard that from one of the roommates and then is saying that like in a 911 call? That would be the argument. Yeah.

[01:01:59] And Jennings basically was like, don't exclude the whole call. Just let's redact problematic areas. And so what the what the judge said is basically I'm going to listen to its statement by statement. He says he thinks most of it will come in, but maybe redacted. Then we talked about talking about phone records from DM. Um, the state, you know, submits that they're allowable, uh, you know. And, uh, Taylor says there's a lot more to the texts.

[01:02:26] Um, and the judge said, you know, basically like 19 and 20 year olds might do check social media instead of calling each other. Like that's not necessarily like that doesn't really necessarily mean anything. Um, yeah. So they're kind of going back and forth on that, like whether things are admissible. Next, Thompson wants to build a dollhouse. What do we mean by that? I got your attention there, didn't I?

[01:02:56] They want to build a not to scale construction of a 3D, a 3D model of the King Road house. Just for the help of witnesses, just so witnesses, investigators, officers, roommates can point to like, I was here. This is where their room was. I was looking down this hallway. And he said that he asked the FBI to just wait until they got the judges okay to do this. But the FBI just started building it anyway. He laughed sort of ruefully at this.

[01:03:24] So he said it's 35 by 48 by 52. And Taylor's like, let's throw the dollhouse out because, uh, you know, we wanted information of this when they were building it and we didn't get it until 2025. And the judge was like, well, didn't you have the ability to like do your own thing or like measure it yourself? And they're like, well, we can't test on how they're doing it because they're not telling us how we're doing it.

[01:03:49] And he, he's just like, you know, like, it's just a demonstrative thing. It's not like, it's not that deep basically. Um, yeah. Then they went into alibi response. Of course, Brian Koberger, I don't really feel like he, his alibi is from phone expert Cy Ray where it's like, I think what, what was indicated here was that Cy Ray can say that.

[01:04:18] And Koberger's phone before it was turned out off was south and west of Pullman before the homicides, but like well before the homicides. So like, that's not really anything, frankly. Um, yeah. And basically what, what, uh, the judge said was like, if they get another alibi witness, the defense has to disclose that. You know, he, the judge basically summed it up as the state doesn't want to get someone coming in at the last minute saying, oh, he was at my house at 406. You know? Yeah, that makes sense.

[01:04:47] Um, the Jennings came in and asked, uh, the judge to stop the defense from saying that the, the state got the timing advance records, um, that back in 2022 and November 13th. They had seven days to get timing advance records for Koberger's phone. Of course, they didn't know who Koberger was at this time, so they did not get those. They only knew about him in December. At that point, the timing advance records were no longer available from AT&T. We are going to go into a lot of depth about this topic in particular very soon.

[01:05:16] So get ready for some, some of that. Um. Spoiler warning. This is where Taylor, I think, really got, like, tripped up. And again, it wasn't really her performance. It was actually the performance of one of her experts, namely Mr. Ray.

[01:05:36] So, Cy Ray filed, I think, several affidavits, basically accusing the state of hiding evidence and engaging in really egregious misconduct. What he was saying was, essentially, well, back in the day, one of my bros at the FBI got timing advance records in, like, a weird way. And so that could have happened here, and I bet they're hiding stuff because that's what they do.

[01:06:02] I'm summarizing it in kind of a silly way, but, like, there was, like, this kind of, like, Jennings, and he shouted out Jennings specifically. And law enforcement are hiding something. And so, um, Taylor says the things that, because, because what, what, uh, what the judge said is, what is your evidence of any of this happening? And Taylor says, the things that I've learned is that the seven days is on paper. Sometimes they go back further than other days. The judge says, actually, do you want to go back and forth?

[01:06:31] You could, I can be Anne Taylor and you can be the judge. So you'd be here. The things that I've learned is that the seven days is on paper. Sometimes they go back further than other days. What's the evidence of that, counsel? The evidence has been in the practice that I've learned from people. You're giving me that testimony now. I'm not giving you testimony. I'm asking, I'm answering the court's question.

[01:06:52] But you've made some serious accusations against the state of hiding evidence, and yet you provided no factual basis, zero, that the evidence existed for them to be able to obtain it in December. And then we're going to skip ahead a bit, and I'm back to Taylor and Kevin will be the judge. Well, I don't know if they made a prior request that they save those. But they wouldn't because they didn't know who he was. You're correct. They didn't know who he was until I think about December 19th.

[01:07:18] That's a discovery issue you can take up with the courts for a motion to compel, which you have not filed. It's not an evidentiary issue in which you can lay down Mr. Ray's conspiracy theory without any evidence at trial. What do you think about that? The judge called Ray's thing a conspiracy theory, which it is. That's completely accurate. You know, when people – this is like – this is what drives me crazy.

[01:07:42] The next time somebody comes up to me and says, oh, yeah, the police are hiding something because that's what they do. I'm going to literally just like, I don't know, roll my eyes or something because it's like give me – Pretty extreme measures. I was going to say something else, but it's like I don't care what your imagination says. Give me some evidence that something – some improprieties happened here because absolutely there have been cases of bad acts happening. Absolutely.

[01:08:12] There's been Brady violations. These are things that happen in reality just like murder happens in reality. But unless you have some specific proof of the bad action, shut up. Like don't talk to me about this. Like I don't want to hear about it. That's how I feel about it and that's seemingly how the judge feels about it. Show me the evidence that something bad happened. Don't just be alluding to like everyone does it. You know, give me something concrete because otherwise I don't want to hear it and otherwise I take you less seriously in your arguments.

[01:08:44] And you and I get that a lot. People just come up, oh, well, I bet they did this because, you know, this is my understanding. I don't care about your worldview about law enforcement. Like give me some specific evidence about a specific person doing some wrongdoing and then we can have a conversation. But anyways, this is what the judge ended up saying. I thought this was incredibly brutal. And also the I'm not upset here is doing a lot of lifting and maybe not – maybe kind of letting it slip a little bit.

[01:09:12] But and I'm not upset, but I just – for Mr. Ray's information, because he wasn't here the first day I started this trial with you folks, I said I don't want theatrics. I don't want accusations that aren't supportive with evidence about supposed bad conduct of the parties. You're all professionals. I respect you all. And the accusations he made in there are very concerning. The kinds of accusations of truth that would get people disbarred.

[01:09:36] And so without any evidence, apparently sidestepping the clear explanation, he made those and that doesn't make me happy. What do you think about the judge saying this to the defense? I think it's entirely reasonable for a judge to lay down some clear boundaries like that in order to maintain control of the situation. Jennings went on to get a bit heated talking about this of like, you know, I asked for the timing records. I didn't receive it because we are well past the seven days at that point. So she seemed a bit heated.

[01:10:05] Her credibility had been sort of smeared by this guy, Ray, and I think that's ridiculous. I think that's utterly ridiculous. I don't think you need to engage in manipulative and, you know, frankly, underhanded tactics like that in order to make your point. And whether it's the state doing that or the defense doing that, that's always going to be something that gets a side eye from me, honestly. I don't have time for that. It's just – it's juvenile. What do you think?

[01:10:36] I think a person doesn't fight dirty unless they think that's the only way they can win. You don't fight dirty if you have a strong case. That applies to the prosecution or the defense. I agree. And, you know, I mean, I think this – I think the defense is trying their best here. I don't think they need to engage in stuff like this. I think a lot of their arguments are pretty weak, as you probably can tell. But I think they're – those arguments are weak, but they're understandable and they're not getting into, like, the level of conspiratorial thinking that, you know, I see in that Ray affidavit.

[01:11:04] So I hope that they are able to keep him in line with that because I don't think it's necessary. And again, I think Taylor would have a huge win on her hands if she gets him out of the death penalty at this point. If she gets him out of the death penalty, she's done a remarkable job. I agree completely. So for me, like, I'm judging her on a different curve than you might think in terms of her performance. So again, she was able to keep her cool with this. It got a little bit heated.

[01:11:34] But afterwards they had a nice moment where they laughed about how they enjoy having dialogue with each other. So it's all okay. They went back to talking about excluding certain states' experts. And we don't get to fight back because the state – we gave the state our experts and told them what they were going to say, but they gave us bare bones stuff about what they were going to say. And they were very upset about that.

[01:12:00] And now one side factual issue that was mentioned here was that apparently the state's medical expert did speak to some defensive wounds. That seemingly is not on every victim, might be on some. You know, she questioned why the state would want to bring in one of the experts, Dawson, who's an expert in toxicology. And the judge reminded her, you know, you guys are going to bring in somebody who says that there would have to be two people committing the crime.

[01:12:29] And she said, quote, Your Honor, we have produced an expert that believes it's likely that there were two people and two weapons. And the judge is like, yeah, so the, you know, the testimony about the toxicologist would talk about the intoxication level of the kids who were murdered. So if you – you're saying it had to be two people because, like, these kids would have fought back. Like, if they were really drunk, they wouldn't have. You know, and to me, like, a defensive wound that they're alluding to, I'd be curious, is that, like, somebody putting up a fight?

[01:12:59] Is that someone, like, holding up their hand as someone's trying to stab them? Like, what does that – that doesn't necessarily mean. That can mean different things. All right, now we're going back to Amazon. Back to Amazon. We're doing it. But, um, so Masseth says, you know, there's concerns about – there's a lot of concerns about the Amazon data and, like, does it really show that he definitely clicked and bought something? And their expert says that it doesn't.

[01:13:28] And judge says, as I understand it, you're saying it shouldn't be relied upon or admissible because AI made me do it? It seems facially evident. Masseth is getting very heated. She's saying it's not, it's not. It's an Amazon click packet and, you know, context. Yeah, as I recall, one of their arguments was Amazon has all these algorithms and stuff and it might steer people towards places they didn't intend to go.

[01:13:51] And so if you do something suspicious on Amazon, I guess it's – you're blameless in the affairs. It's the algorithm. Well, Masseth seemed to be very confident and very, you know, strident about her statements, but her statements didn't really get at what – I don't feel like what exactly they're arguing here. Right. Like, I don't understand what the issue is even after listening to this and going back and trying to figure it out.

[01:14:19] So, you know, she knows that there's a household account. There's multiple cell phones, multiple laptops that are purchasing. She talked about machine learning and cross-references and Amazon works with AI and they want to understand what consumers are buying. And so they prompt people to buy certain things.

[01:14:36] But again, if I see an advertisement for like a, you know, an axe, like on a billboard that I'm driving past and I go buy an axe and murder someone with it, then like the advertisement did that? Like what? There's certainly been times in my life when I've bought things on Amazon that I did not go to the site specifically to buy. You know, something pops up and I say, oh, golly, you've seen me do that. Many a time.

[01:15:05] But ultimately, the decision to buy those items is mine and I buy them because I think I have a use for them. So I just didn't – I didn't really – she's like, no, it's really complicated and all this stuff and it just doesn't seem that complicated and I don't feel like she did a good job explaining. If she had a point there, I missed it. So I apologize. But Jennings says in response to this, quote, OK, judge, this is pretty simple. Shane Cox and Mike Douglas, since they got brought up, are fact witnesses. They're not going to have opinions. They review records.

[01:15:35] They're going to testify to that. You know. And AI doesn't click on things for a user. There's no legal grounds to exclude this. We ask that you deny their motion. Thank you. And the judge said there was no ground for exclusion. Thompson talked about – this is where we get into the autism again. We get into the sort of neurobiological, neuropsychological, physical condition.

[01:15:56] And, you know, weirdly enough, the defense seems to be arguing that he should not be executed on the ground that ASD is a mental health condition. Whereas it also shouldn't be considered one in terms of the fact phase because it's this neurobiological condition. Yeah, that's something else they've discussed in filings. Trying to have it both ways. But what they're saying is they're, you know, they're totally walled off. They're different considerations. So, yeah.

[01:16:26] And like what I thought this was – the judge says, now I will say, having seen Mr. Koberger over numerous days now, I haven't seen anything unusual in terms of his demeanor. You know, I'm not the one scrutinizing him on YouTube. Fair. Fortunately, this judge is not a YouTuber. Thank goodness. And, yeah, the second we have a YouTube judge, it's all over, right? We're cooked. Call it. It's inevitable. Just get us out of here. I think, you know, when I – you can't really see him close up in this video. It's kind of far away. But he's just sort of sitting there.

[01:16:56] You know, I don't know. He doesn't seem to be twitching or doing anything really weird when I was seeing him in this context. I think they're really leaning very heavily on this, but I don't – I don't know. I mean, in our experience, Richard Allen in the Delphi case, you know, he was diagnosed with major depressive disorder. Not autism, not anything like that.

[01:17:22] He was behaving absolutely bizarrely throughout a lot of the trial and certainly even more so at pretrial hearings. Well, no, he got really weird at the trial, actually. He probably got weirdest at the – he started off well at the trial and then just devolved. He was able to hold together for the first few days, I thought. Yeah. But he got really weird and it's like, you know, I don't know. Like, okay. When we talked to one of the jurors, she said, yeah, people kind of noticed that, but, you know, that's not what we talked about.

[01:17:51] Like, I think a lot of people are, you know, able to hold that in their minds and kind of be also able to be talking about the evidence. If people got convicted of crimes because they acted oddly or awkwardly, Anya and I would have been behind bars long ago. Jesus. There you go. Suddenly you hear like police sirens in the background. They're coming. Yeah.

[01:18:20] I mean, I'm not saying that – I think that can't happen. I think that a jury can make a mistake and do something bad, which would be convicting someone because they act weird in trial. I think that absolutely can happen. I'm sure it's happened. I'm just saying, like, I've not really seen anything from him. And they're basically citing the media. Like, well, the media says he looks evil. Well, I mean, like, just because some of the tabloid press are doing something, I don't think – I just – it just seems a bit like not connected. Like, I understand why they're raising the issue.

[01:18:51] But, you know, I don't know. So they talk about how, you know, death penalty is therefore unconstitutional. Juveniles and people with intellectual disabilities can't – you know, the same rules apply for ASD. And he's oddly formal. He really struggles with decisions. He even – you know, he's, you know, different – you know, whatever.

[01:19:16] So they're basically saying – what Nye said was that, you know, in a different Idaho case, there was an attempt to compare to that sort of standard where – what that standard, I believe, has is that you have to have sub-average intellectual functioning plus limitation in, you know, in adaptive functioning. So what – you know, you need one to have the other.

[01:19:45] So the Idaho Supreme Court apparently shot one down. It didn't involve ASD, but it did involve – like, it was, like, basically, like, you need to have both of those things. You can't just have the adaptive stuff. So Taylor had yet another motion to strike the death penalty. This is the last one, I promise. He said – she said it's not a Brady violation but a due process violation. The judge wistfully reflected, the first time we met, you told me about having received the state's discovery in the number of terabytes.

[01:20:13] And first question I asked you was, have you looked at it? And you said no. You hadn't looked at it. And we talked about the trial date, and I moved the trial date back a little bit for that. And I haven't heard a word since that you haven't had enough opportunity to review the discovery. Taylor said, well, I'm here to tell you now that we haven't reviewed all the discovery. Over the course of the case, there have been multiple emails and letters back and forth with counsel about discovery. We've had motions to compel discovery.

[01:20:39] When I first met you, I was very candid with you about the size of the discovery and that our team had not looked at it. She said they've gotten more discovery since, and all this stuff takes time. And they, you know, keep on having to do other stuff with, like, the expert witnesses. The judge joked that he's aged a year since taking on the case. And the judge pointed out it seems a little bit calculated to suddenly, you know, like, say, oh, well, you have to take the death penalty off the table because, like, I don't have time for any of this at the last minute.

[01:21:06] And the judge also noted that Taylor has since taken on another death penalty case. So if you're really that swamped, then why did you do that? Good question. Taylor made a complaint that sounded familiar to all those who followed Delphi, which is the prosecution didn't do our jobs for us and make an index or a list or a little helpful menu of all the stuff on the smorgasbord of discovery. And to that, I say, you know, that's not their jobs. So figure it out, basically.

[01:21:36] Is that it? That's it. We got through it. Wanted to say that if anyone is interested in watching this whole thing, maybe piecemeal because it is very long, check out the East Idaho News' YouTube. I kept on going to different news sources and I'd be like, oh, boy, it's all just an hour. And then it would get cut off at the end. I'd be like, this isn't it. And then, like, I did that with, like, several news stations. The only place that I – the place that I ended up landing where I was able to watch the whole thing was the East Idaho News. So definitely check that out.

[01:22:05] We'll be including the link in our show notes so you can follow along. But, yeah, that's what happened at the hearing. Some interesting stuff. But at the end of the day, nothing super new. Just kind of we're seeing some of these things inch along and I'll be very curious to see where Judge Hippler comes down on some of these things. All right. Are we done? I think we're done. Push the button. Thanks so much for listening to The Murder Sheet.

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