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News / Northwest

Judge in Bryan Kohberger murder case issues aggressive schedule ahead of October trial

By Kevin Fixler, The Idaho Statesman
Published: August 20, 2023, 5:05pm

BOISE, Idaho — The trial for the man charged with murdering four University of Idaho students will maintain its sprint to a scheduled start in six weeks in Latah County. The judge in the case on Friday denied a motion by Bryan Kohberger’s defense team to pause proceedings over their outstanding questions about his grand jury indictment.

Judge John Judge of Idaho’s 2nd Judicial District set a breakneck pace to hit the Oct. 2 trial date, telling the prosecution and public defenders for Kohberger that they’ll need to be finished with the discovery process in two weeks, name the experts they plan to have testify a week after that and identify all of their witnesses by the middle of next month. All motions have to be filed by Sept. 22, in time for jury selection starting Sept. 25.

“I know Mr. Kohberger is anxious to have this speedy trial and he’s entitled to that, so I’m going to tell you, this is a little bit of a reality check,” Judge said. “I’m not even promising it’s doable, but that’s just what we have to do. … So here we are.”

Under Idaho law, a criminal defendant must receive a trial within six months of arraignment. A grand jury sat by the prosecution indicted Kohberger in mid-May on four counts of first-degree murder and one count of felony burglary, and he was arraigned a week later.

The prosecution intends to seek the death penalty if Kohberger is convicted.

Kohberger, 28, sat next to his public defense team at Friday’s hearing wearing a light blue suit and striped tie. He is accused of stabbing to death the students in November at an off-campus home on King Road in Moscow. At the time, Kohberger was a graduate student of criminal justice and criminology at Washington State University in Pullman, Washington, roughly 9 miles away.

The four victims were U of I seniors Madison Mogen and Kaylee Goncavles, both 21; and junior Xana Kernodle and freshman Ethan Chapin, both 20. The three women lived at the King Road home with two other housemates who went unharmed in the Nov. 13 knife attack. Chapin was Kernodle’s boyfriend and staying over for the night.

During the bulk of the expansive, six-hour-plus hearing Friday, the defense and prosecution sparred over whether the state should have to hand over all DNA records used to identify him. Heated at times, the attorneys for the two sides pleaded with Judge either to rule the documents be released through discovery or issue an order to protect all information about the use of investigative genetic genealogy (IGG), a process where detectives build a family tree based on DNA profiles to zero in on a suspect.

Over objections from the prosecution, Judge allowed the defense to call four witnesses to testify during the pretrial hearing on the relevance of the newer DNA technique prosecutors have acknowledged the FBI used while assisting state and local police in their eight-week manhunt. The witnesses included two IGG experts and a pair of attorneys who specialize in discovery and IGG.

Among them was Stephen Mercer, a longtime criminal defense attorney in Maryland with expertise in scientific evidence and DNA databases. He testified that release of IGG records in cases where it has been used is the “minimum practice standard,” so a defense team can mount an effective case on behalf of its client.

“The attorney must obtain discovery of the scientific testing of the evidence sampled,” Mercer said. “And that is particularly so in a capital case. Particularly an environmental sample of trace DNA is absolutely crucial, because it informs the scope of the investigation and the experts to get.”

Kohberger’s attorneys argued the testimony mixed with their previous arguments clearly demonstrated why they needed the disputed records.

“Every single person in this courtroom should have pause when talking about a forensic science that is no more than five years old,” public defender Elisa Massoth told Judge. “Cumulatively, it is overwhelming that we must have this evidence to do this work.”

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But Idaho’s discovery rules do not require the state to turn over such records, countered Jeff Nye, chief of the Idaho attorney general’s criminal law division, for the prosecution. IGG does not represent a scientific test, he argued, nor does the information help prove the defendant’s innocence — elements that could require their disclosure. Rather, Nye said, IGG is merely an advanced method used by police to obtain an investigative lead.

The fact that Kohberger could face the death penalty also should have no bearing on Judge’s decision, despite arguments to the contrary, Nye said.

You hear, “This is a death penalty case, and death is different,” he told Judge. “But discovery is not. If the Idaho Supreme Court wanted the rules to be different (for death penalty cases), they could have done that, but they didn’t do that.”

Nye reaffirmed to Judge that prosecutors do not intend to use the information at trial, and that IGG was not used as support for Kohberger’s arrest warrant. And, for the first time, he revealed that police did not rely on IGG to justify any search warrants during the investigation, either.

Judge chose not to issue a ruling on the debate over the defense receiving the IGG records, instead saying he would do more research and make a decision at a later time.

As to the prosecution’s ongoing demand that Kohberger submit an alibi if his attorneys plan to put up such a defense at trial, Judge granted them until Sept. 8. A formal alibi would represent proof that he was somewhere other than the King Road home at the time of the homicides, including with support, such as with witnesses.

The defense previously sought to avoid filing the information, saying that such evidence may come out at trial. Pressed by prosecutors, Kohberger’s defense wrote earlier this month that he was out driving his car alone, as he often did as a matter of habit, overnight from Nov. 12 to Nov. 13.

“We knew that already, and if that’s his alibi, so be it,” Latah County Prosecutor Bill Thompson, who is leading the prosecution, argued before Judge on Friday. “We will accept what the defendant has said, he was driving around,” with a stipulation that he cannot provide more about it later at trial if the defense team fails to meet Judge’s revised deadline.

Between members of the public, media who traveled to attend and family for at least one of the victims, the courtroom was near capacity Friday for the entirety of the hearing. Members of the Goncalves family, including Kaylee’s parents, Steve and Kristi, their attorney, Shanon Gray, and supporters were among those on hand.

“Time to collect our thoughts,” Gray told The Idaho Statesman on Friday after the all-day hearing, declining further comment.

“Yeah, it’s been a long day,” added Kristi Goncalves, as the family exited the courthouse.

©2023 The Idaho Statesman. Visit idahostatesman.com. Distributed by Tribune Content Agency, LLC.