BOISE, Idaho — The capital murder trial of Bryan Kohberger would have started MOnday — if everything had gone as planned.
Instead, those invested in the trial have an indefinite wait on their hands after Kohberger waived his right to a speedy trial in late August.
Kohberger was arrested in December in Pennsylvania in connection with the fatal stabbings of University of Idaho students Madison Mogen and Kaylee Goncalves, both 21, and Xana Kernodle and Ethan Chapin, both 20.
He is facing four counts of first-degree murder and one count of felony burglary after a plea of not guilty was filed on his behalf by Judge John Judge of Idaho’s 2nd Judicial District in Latah County. Latah County Prosecutor Bill Thompson is seeking the death penalty.
Pretrial hearings scheduled for Sept. 22 were also postponed because of an unspecified illness until Oct. 26, further adding to the delayed proceedings.
With no end — or start — in sight, here’s what’s transpired in recent months as the prosecution and defense work toward the eventual start of Kohberger’s trial.
- Why did the trial date get delayed?
Under the Sixth Amendment of the U.S. Constitution, every resident has the right to a fair and speedy trial; this means that the accused must be brought to trial within a reasonable amount of time from their arraignment. Under Idaho state law, criminal defendants must receive a trial within six months if they don’t waive their right.
Waiving the right to a speedy trial extends the legal processes and gives the defense more planning time. That’s what occurred with Kohberger. Anne Taylor, Kohberger’s lead public defender, told the court that the scheduled start date of Oct. 2 did not give the defense’s legal counsel adequate time to prepare.
Taylor said the defense wishes to postpone the trial date just once, while Thompson called it a “smart move.”
Boise-based criminal defense attorney Edwina Elcox previously told the Idaho Statesman that the amount of evidence and complexities involved in Kohberger’s case made it “virtually impossible” for the trial to start on time.
A date has not been set for the start of the trial, but it could be in 2024.
- Can the defense challenge the indictment?
Kohberger was indicted by a grand jury in May on four counts of first-degree murder and one count of felony burglary.
A grand jury is a group of 16-23 jurors whose job is to determine whether there is “probable cause” to believe that an individual committed a crime. A grand jury can hear evidence, compel witnesses and request documents in making their decision.
But now, Kohberger’s attorneys plan to argue that the indictment should be thrown out on several legal grounds. That argument was supposed to be presented at the postponed hearing last week, which has been rescheduled for Oct. 26.
Kohberger’s defense raised concerns of bias among the grand jury in August. The defense also said there was a lack of sufficient evidence and use of improper evidence in the indictment and that the prosecution withheld evidence from the grand jury that would disprove Kohberger’s guilt.
The defense also argued that the Idaho Constitution demands a grand jury to use the same level of certainty as the trial: beyond a reasonable doubt. The grand jury operated on the lower legal threshold of probable cause, for which only 12 of the 16 selected grand jurors must support indicting the defendant.
The prosecution’s objection to the defense’s challenges is filed under a court-approved seal, which keeps the arguments hidden from the public.
- What was Kohberger’s alibi?
The defense filed Kohberger’s alibi in early August, stating that Kohberger “had a habit of going for drives alone” and that “often he would go for drives at night.”
The defense claims that Kohberger was on one of these late-night drives on the night of the killings last year — late Nov. 12 into Nov. 13 — and that there are no specific witnesses to say where Kohberger was at the moment of the killings.
Kohberger previously declined to provide a pretrial alibi after the state requested one, with his defense saying that the motion to provide an alibi was an attempt by the state to “force the defense to open its work product files and let the state peek inside.”
Kohberger’s defense said that the alibi filed regarding Kohberger’s driving habits is the only one that can be “firmly stated” for now.
- Cameras in the courtroom
Kohberger’s defense earlier this month argued against the use of still and video cameras in the courtroom, asserting that their product has been misused so far. Defense attorney Jay Logsdon said cameras in the courtroom risked dehumanizing Kohberger and denying him the right to a fair trial, according to the Associated Press.
Logsdon also said the use of video could expose private notes and records on the defense table.
Wendy Olson, who represents a media coalition including the Idaho Statesman and Associated Press, said that cameras in the courtroom would help increase the public’s access and understanding of the case. Judge said that pool camera operators in the courtroom are not a problem, but how other individuals use images could be troubling.
Judge said he is considering an approach often used by the satellite television network C-SPAN, where a camera is staged at the back of the courtroom. He has not issued his decision.
- DNA evidence dominates hearings
A six-hour-plus hearing on Aug. 18 was primarily dominated by arguments about whether the state should hand over all of the DNA records that led to Kohberger’s identification, through discovery. The arguments revolve around investigative genetic genealogy (IGG), which is the use of DNA on public genealogy websites in an investigation.
IGG was used in identifying Kohberger, although the prosecution said that police did not rely on IGG to issue and perform any search warrants.
Kohberger’s defense, which wants the DNA records released, argued that the forensic sciences used to identify Kohberger are less than five years old and should give everyone pause when considering such a new science.
Four witnesses testified on behalf of the defense’s effort to obtain the records, with one attorney, Stephen Mercer, saying that the release of IGG records is the “minimum practice standard.”
But Idaho discovery rules mean that the state isn’t required to hand over the IGG documents, according to Jeff Nye, chief of the Idaho attorney general’s criminal law division. Nye added that the IGG does not represent scientific facts or provide evidence proving Kohberger’s innocence.
Judge has yet to issue a ruling on if the state has to turn over the DNA records to Kohberger’s defense.