Monday, May 20, 2024

Content of two closed hearings in Kohberger case could help set trial

by KEVIN FIXLER / Idaho Statesman
| May 14, 2024 1:00 AM

Consequential pieces of evidence that may weigh heavily into the prosecution and defense of Bryan Kohberger are the focus of a pair of closed-door hearings this week as his high-profile murder case works itself nearer a trial. 

Kohberger’s defense, led by public defender Anne Taylor, has alleged that prosecutors have intentionally kept from them key records and details about the University of Idaho student homicides that are due through the legal process known as discovery. They’ve filed several motions with the court to compel prosecutors to give up the evidence so they can do their own investigation and build their client’s legal defense.

“The state knows full well what they have and what they’re withholding from us,” Taylor said at a hearing earlier this month with Kohberger seated at her side. “We don’t know what they’re going to show, but we know they exist.” 

The state’s approach with some of the evidence has led to delays in allowing the defense to prepare for trial — and also contributed to delaying the case from even getting to trial, she said. Now, 18 months since the homicides, the case already has cost Idaho taxpayers more than $3.6 million, an Idaho Statesman investigation found. 

Despite the defense’s repeated legal demands, Taylor said prosecutors have for months been unwilling to provide them with specific evidence that police relied on in the probable cause affidavit for Kohberger’s arrest. That includes cellphone tower data, drive test information and the full video and audio of a white sedan near the King Road house in Moscow where the crime took place, she said.

Kohberger, 29, a Pennsylvania man enrolled in a Washington State University graduate program at the time, is accused of the stabbing deaths of four U of I students in November 2022. He owned and drove a white 2015 Hyundai Elantra sedan. 

The student victims were seniors Kaylee Goncalves and Madison Mogen, both 21, junior Xana Kernodle and freshman Ethan Chapin, both 20. The three women lived at the off-campus house, and Chapin was staying over for the night with Kernodle, who was his girlfriend.

Kohberger is charged with four counts of first-degree murder and one count of felony burglary and is eligible for the death penalty if convicted. The judge handling the case entered a plea of not guilty for Kohberger when he chose to stay silent at his arraignment last year. 

Prosecutors previously sought to restrict the defense from having access to some DNA records that the FBI produced while using a process known as investigative genetic genealogy, or IGG, to narrow the list of possible suspects. Judge John Judge of Idaho’s 2nd Judicial District in Latah County ruled in the defense’s favor and awarded them the contested records. 

Latah County Prosecutor Bill Thompson, who is leading the case against Kohberger, rejected the defense’s claims that the state has worked to prevent the release of certain evidence.

“The characterization that we’re just consciously withholding information to frustrate the defense is utter nonsense,” Thompson told the court earlier this month. “That is not true. We will provide everything we can that is providable under the rules.” 

State prosecutors do not have in their possession the reports produced by the FBI’s cellular data analyst team during the homicide investigation, for example, Thompson said. They will provide those to the defense once they receive them from the FBI, he said. 

“They have been good partners, but they have their own rules to work with,” Thompson said. “We do not have it. We are not withholding. It’s as simple as that.”


The two sides in the case have appeared increasingly testy with one another at hearings in the pretrial phase. Judge has called for the two sides to remain civil in the process in the lead up to a trial. 

“I trust both of you, OK, your integrity. So I don’t want this pointing of fingers back and forth. I don’t think it’s very helpful,” Judge said. “I really want you all to just tone it down a little bit. You can argue all you want, but when it starts to be personal, it’s destructive. 

“You’re really, really good lawyers, so let’s just focus on the issues,” he added.

Judge signed subpoenas sent to the FBI to require the agency turn over some of the requested records. Separately, Thompson said prosecutors have for months been pursuing the so-called Touhy process, which is a federal requirement for the FBI to turn over records. 

The defense said it plans to call up to two expert witnesses for the hearing Tuesday afternoon, possibly with a presentation. Judge granted prosecutors’ request to close that hearing so they can discuss specifics of certain evidence — some of which may not be presented at trial — out of the public eye to establish an unbiased jury trial. 

“My job is to try to keep on a balance here, a neutral balance, where when we get to the trial — if we ever get there — that it will be fair,” Judge said.

At a second closed hearing scheduled for Thursday, the defense plans to address the IGG records it previously received in its pursuit of receiving permission to allow its investigators to review the protected content in the documents. The defense plans to call two expert witnesses and present a few exhibits as well, Taylor said. 

The list of witnesses and exhibits at the two hearings also was ordered sealed.

At another hearing scheduled for June 27, attorneys on each side are scheduled to make arguments about whether the expected trial should be moved outside the county where the crime occurred to seat an impartial jury. The state has indicated its opposition to the venue change, while Kohberger’s defense has been conducting jury survey work to help justify the move to elsewhere in the state.