Mega Edition: Prosecutors Ask to Examine Kohberger's Mental State (10/3/26)

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What's up everyone and welcome back to the program. Brian
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Kohlberger and his defense team have thrown everything they possibly
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can imagine at the prosecution in hopes of trying to
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get the death penalty thrown out, only to find Judge
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Hippler standing in their way every single time they bring
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a new motion. And unfortunately for Brian Kohlberger, that has
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not changed recently with the new orders that have hit
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the docket denying Brian Koberger and his team and their
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emotions to get this death penalty tossed. So today we're
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going to talk about that a little bit more. And
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to do that, we have an article from Fox News. Headline,
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Idaho judge slams Brian Koberger's hollow attempt to dodge death
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penalty and latest blow to the defense. This article was
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authored by Adam Sabes. A judge in Idaho denied a
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motion from Brian Koberger's defense team asking to remove the
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death penalty as a potential punishment if he's found guilty.
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Kohlberger is charged with first-degree murder in the deaths of
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four students in the University of Idaho, including Kaylee Gonsalves,
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Zanna Kernodle, Madison Mogan, and Ethan Chapin. The former student
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at the University of Washington was also charged with one
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felony count of burglary. During a hearing on April 9th,
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Kohlberger's defense team presented the motion to strike the death penalty,
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arguing that discovery produced by prosecutors has both been voluminous
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and unorganized. Kohlberger argued this meant he was unable to
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meaningfully review and investigate the evidence in preparation for trial,
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which is currently scheduled to begin in August. I mean,
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we're going on what, three, four years now? Stop with
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the whole I'm not prepared. Now look, everybody deserves a
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chance to defend themselves, even people that we might find condemnable.
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But at some point, the party has to get started.
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And my advice is, if you don't want to deal
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with a massive discovery, don't murder four people in their beds.
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Because if you do, well, you can expect that the
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process is not going to be favorable to you and
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that you're going to have to, at some point, stand
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before the wagon and take responsibility for what you allegedly did.
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I mean, if you flip the script and look at Diddy,
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look at how quickly his trial has come, as opposed
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to Brian Kohlberger's. Now, of course, two different things. We're
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talking about capital punishment here. and Diddy obviously were not.
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But still, Kohlberger's team has done nothing but gum up
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the works the whole entire time, and frankly, the state
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of Idaho has been more than fair when it comes
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to Brian Kohlberger. Judge Stephen Hippler wrote in his order
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on Tuesday that Kohlberger complaints about the amount of discovery
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produced ring hollow. Kohlberger has been receiving discovery in the
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same manner for over two years, Hippler wrote. Kohlberger has
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not sought additional resources to hire additional staff to review discovery,
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or obtain litigation document control software to help organize and
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sort the evidence. His lead counsel insisted that she will
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be allowed to take on a second high-profile capital case,
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despite the voluminous discovery in this case. So yeah, that's
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not good. You're going to say that you can't get
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things ready, but at the same time you're taking on
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another capital case? Sorry, but the judge isn't going to
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just acquiesce to your demands. This isn't about what's best
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for you. It's about what's best for the state of
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Idaho and the victims and their families. Hipler also wrote
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that Koberger's lawyer, Ann Taylor, indicated that her practice is
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to personally review all the discovery herself rather than rely
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on associates and staff to review materials to cut through
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the less relevant information and point to what materials need
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review by lead counsel. I don't have beef with that, honestly.
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I want my lawyer looking at everything. I don't want
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some hired intern to do it I don't want a
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paralegal to do it. I want my lawyer to do it.
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So I get that for sure. But at some point,
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there's only so much you can do. And when you're
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talking about a massive case like this, the time is now.
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These actions are not indicative of an overburdened defense team,
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Hitler wrote of the motion. Addressing one of the arguments
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from Kohlberger's team, the prosecutors larded its production with entirely
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irrelevant documents, Hitler said. There's no proof of that occurring.
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And of course, Brian Kohlberger fans are going to say, oh, well,
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the judge is against him. The judge isn't Brian Kohlberger's friend.
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He's looking to convict him. No, the judge is just
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doing his job. That's all. Pretty simple. Timeline of November 13th, 2022.
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4 a.m., suspect arrives at the house. Between 4 and 4.17,
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time of murders. 4.19, roommate calls. Three victims. No one answers. 4.22
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to 4.24, surviving roommate text each other. From inside the house. 427.
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Roommate calls victims again. No one answers. 432. Roommate texts Gonsalves,
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please answer. 1023. Surviving roommate texts victims. No one answers. 1139.
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Roommate calls her father. 12pm. 911 call placed from roommate's phone.
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Hippler's decision comes less than a week after he denied
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a different motion to remove the death penalty. Koberger's defense
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team previously argued... that the defendant's autism diagnosis should preclude
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him from the death penalty. And we all know how
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that worked out. Imagine trying to say your autism should
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preclude you from the death penalty. Now look, if Brian
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Kohlberger was somebody who, you know, was non-functioning or something
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like that, be a different story. This dude has a,
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you know, college degree, PhD candidate. So if he's capable
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of doing all of that, then don't tell me that
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the autism played a part in these alleged crimes. because
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I'm not buying that for a second. Alright, moving on
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to our second article of the day, this one from KXLY.com,
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and the headline, Prosecutors Want to Do Their Own Evaluation
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of Brian Koberger's Mental Health. This article was authored by
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Melissa Luck. Prosecutors who are putting Brian Koberger on trial
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for the murder of four University of Idaho students want
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to evaluate his mental health, but want to keep secret
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the tests and other information for Koberger's privacy. That's the
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right way to do it. Look, as the public, we're
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not all privy to that. And some things have to
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be kept, you know, in confidence. But I think it's
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a good idea for the state to have their own
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experts take a look at Kohlberger and see if everybody
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can get on the same page. And that might be
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helpful even, right? What if the state finds something that
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his experts missed? So I think it's a pretty good
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idea to have the state get a look at Brian
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Kohlberger as far as an evaluation of his mental state.
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Kohlberger faces the death penalty if convicted of killing Madison Mogan,
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Kaylee Gonsalves, Ethan Chapin, and Zanna Kernodel. The defense team
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says Kohlberger has recently been diagnosed with autism spectrum disorder,
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but a judge ruled that diagnosis is not enough to
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remove the death penalty as a possible punishment. Prosecutors asked
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the judge to seal their motion to examine Kohlberger. And again,
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there's going to be people that aren't cool with that.
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They're going to want to see everything, and I understand
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that too. Look, I'm all for transparency, but I'm also
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for everybody getting a fair shake, even people that I
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might think or might be leaning towards them being guilty.
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And that certainly includes Brian Koberger. I've said it a
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million times. I have no axe to grind with this dude.
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And the prosecution better have their shit together, and they
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better be on point if they're going to try and
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put somebody to death. And so far, as far as
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I can tell, they most certainly have been. So this
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isn't one of those cases like we see over in
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Indiana with Richard Allen. Not in the least. And all
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these content creators out here that are pitching that shit,
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they're just trying to drive engagement. And frankly, my guess
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is the vast majority of these people pumping bullshit don't
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even believe it. They just know that there's an audience
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for it and they know that their sponsor for the
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ED pills or whatever the fuck they're pitching is going
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to give them some money if they get engagement. So
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they'll say whatever. But the facts don't bear out any
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of the bullshit. And that's why we go through these
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court documents. That way all of you get it right
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from the source. You don't need a third party to
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tell you. The court documents have all the information we need.
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Prosecutors wrote that the filing reveals mental health information about
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Koberger including psychological, psychiatric, and neurological information and diagnoses of
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the defendant. The filing also reveals the nature of mental
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conditions already conducted and the type of examinations and testing
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the state seeks to perform. Prosecutors wrote, some of which
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is personality testing to which the defendant objects. Yeah, I
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don't think he really is in a position to object.
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And I think that moving forward with the trial, the
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judge can obviously demand that he does it. He can
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order that Brian Kohlberger engages in this testing. And considering
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what we've seen from Hipler throughout this whole thing, I
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wouldn't be shocked to see him order this. I think
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it's a good idea. I think that Brian Kohlberger would
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be helped here, right? Because it gives him another professional
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to take a look at what's going on mentally. And
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maybe later on down the road, if something's found and
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he's convicted, he can use that as part of his appeal.
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So I think that Brian Kohlberger would be better served
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if he went under this other examination and got another opinion,
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a second opinion or third opinion, whatever it might be.
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The filing indicates the prosecution would use information gleaned from
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the exam in the death penalty phase, which is conducted
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if Kohlberger is convicted. Prosecutors in defense are due back
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in court in Boise in mid-May. The trial is scheduled
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to begin in August. So there's still a lot going
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on here. And we still don't have anywhere near enough
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information to know which way the wind is really blowing.
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but we're starting to get there and the more court
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documents that hit the docket the better serve we're going
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to be moving forward and obviously we still have a
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few months here before we get to the trial but
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things are in motion and there's a lot of decisions
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that are being made now that are going to loom
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large later on when this trial starts So like usual,
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we'll continue to follow along with all the twists and
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turns as we continue to follow along with the state
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of Idaho and the capital murder case brought against Brian Kohlberger.
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All of the information that goes with this episode can
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be found in the description box. What's up everyone and
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welcome back to the program. In this episode, we have
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a relatively short article to get to, one that's talking
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about the DNA and how the DNA could have led
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to Brian Kohlberger. However, this is a man with no
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criminal history, a man that was not in CODIS. So
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how did the DNA lead the police to him? Obviously,
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a lot goes into that. They have their investigation that
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tips them off that this might be the man they're
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looking for. And then from there, everything moves. They'll have
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a surveillance team put on them. They'll start following them
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and they'll try and collect his DNA one way or
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the other to get a match, especially if it doesn't
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hit inside of CODIS. And if you have no criminal history, obviously,
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you're not going to pop inside of that database. And
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Brian Koberger not having a criminal history certainly worked to
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his advantage, at least in the beginning. But eventually, the
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jig was up and Brian Koberger is now sitting behind
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bars and waiting to be extradited to Idaho. So let's
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get into this quick article here. And let's talk about
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the DNA a little bit more with retired FBI agent
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John McVeigh. This article was published on WPBF.com. Headline, Idaho
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murder suspect Brian Koberger has no criminal history and no
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car registered in his own name. Retired FBI agent says
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Koberger would not have been in the National DNA fingerprint database.
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This article was authored by Terry Parker. Definitely was critical.
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Not may have been. Definitely was critical. especially if he
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was found in possession of that vehicle, right? Very critical
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that he has the vehicle that was seen on the
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tape and obviously circumstantial until they can hammer the point home.
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But it gives them at least the basis for this
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investigation and probable cause. Remember, that's important. You have to
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have probable cause before you can make an arrest. Friday,
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Moscow police chief James Fry confirmed a white Hyundai Elantra
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was seized in Pennsylvania, where the FBI and state police
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SWAT teams arrested Koberger early Friday morning. And they came
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in at like 3 a.m. And that's how they do it.
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If they're going to raid your house, you better believe
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they're going to try and come in while you're sleeping.
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Retired Special Agent John McVeigh told investigative reporter Terry Parker
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that Koberger does not have a vehicle registered in his
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name and no criminal history, meaning while police were running
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DNA and fingerprint checks from the crime scene on the
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national database, Koberger would not have shown up as a match.
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And this is certainly how it goes. If you don't
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have a criminal history and you don't have a profile
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that's already been built in the system, well, there's no
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way for them to match that. So what they do
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is they hold on to that DNA that they collect.
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And then if they get a suspect, obviously try and
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match that DNA that was found at the crime scene
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to the suspect themselves. In this case, that's what they did.
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They would have found no criminal history, nothing in the database.
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And so if they linked him by some other means,
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then they would have probably set up surveillance on him,
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said McVeigh. And my guess is that they did. Once
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they had an idea of who he was and who
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they were looking for and had an idea where he
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was at, the surveillance would come very quickly. And usually
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it's the FBI that's doing something like that in this instance.
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And when we say surveillance, we're talking about the same
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guys who are working against terrorists and the mafia. And
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these guys and gals are the best at what they do.
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You could be walking around, go to a Taco Bell,
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get a drink, throw that drink in the trash, and
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they're going to come get that cup out of that
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trash to get your DNA from that cup. And that's
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what they do. They'll follow you around and try and
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collect DNA, try and build a profile on what you're
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up to, and you'll be none the wiser. And my
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guess is they also had a phone tap going for
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them as well. Possibly the Bureau would have done that
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for them, set up surveillance, and you wait until, you know,
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he spits on the ground, he drops the tissue, he's
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at a deli, and he takes a glass, something like that,
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said McVeigh, who said agents then would have to compare
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the DNA on the discarded item to the DNA at
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the crime scene. And we know there was a ton
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of that. According to the authorities, it was a messy
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crime scene, and a lot of DNA was at this
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crime scene. Now, what we don't know is how much
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of it, if any, was the killer's. But what we
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can read between the lines here is that they did
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find his DNA and they were able to match it
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to the crime scene. But what led them to zero
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in on Koberger? The critical tip police seemed to have
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was that white Elantra. They didn't say how much they
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knew about it or where it was spotted. But on
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December 7th, police put out a public plea for information
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about that car, and thousands of tips poured in about
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the Elantra. You would think that this guy, Kohlberger, would
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be hip to the fact that he's not going to
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be able to get away with this if he owns
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this car. Then you say to yourself, did he really
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want to get away with it, or was he looking
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for the notoriety that a lot of these serial killers
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look for when they're committing these murders? Maybe the vehicle
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wasn't seen that night of the murders, but maybe it
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was seen numerous other nights where somebody has a ring
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camera And they're like, well, wait a minute. This car
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doesn't belong on the street. But for five nights in
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a row, it's been sitting here. You know, nobody gets
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out of it or something like that. So is it
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a possibility? Yes. That he picked them for a reason,
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said McVeigh. And that's really the question that we all
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have still, right? At least me, especially. I want to
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00:16:40.539 --> 00:16:43.230
know what the motivation was. I want to know why
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he chose them. And I want to know what his
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behavior was up to this point. Was he sitting out
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there staking it out? How did he choose them? All
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of that stuff, I hope, is going to come out
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later on down the line. McVeigh said, because of the
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violent nature of the stabbings, the killer could have been
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seeking revenge or had a vendetta against one of the victims.
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And I guess that could be the case, but what
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could it possibly be? It really doesn't seem like these people...
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who were murdered, meaning Kaylee, Ethan, Madison, and Zanna, would
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share the same social group as this guy. So how
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would they even run into him ever? How would they
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know him? Or he could have targeted the house itself
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because he knew it was easy to get in and
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out of and close to the highway for a quick getaway.
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And that's possible as well. You see, all of these scenarios,
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they're all on the table still. We just don't know.
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And until we find out, until we have an official
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report about what went down, what his motivations were, it's
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going to be a lot of speculation still. Koberger was
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a PhD student with the Department of Criminal Justice and
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Criminology at Washington State University and lives on campus in Pullman,
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just eight miles from the off-campus home in Moscow where
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the four students were stabbed to death last month. It's
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00:18:05.119 --> 00:18:07.329
odd that he was getting a doctorate in criminal justice,
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noted McVeigh. Mostly, people who go into law enforcement don't
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do that. Well, that's an understatement, huh? But unless he
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had this kind of motivation and these thoughts for a
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very long time, and he thought that going to these
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00:18:20.069 --> 00:18:22.890
classes would aid him in getting away with it or
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planning out the murders better, we just don't know. But
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one thing I will tell you is this. If you're
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crazy enough to murder four people while they're sleeping in
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their beds, I don't put anything by you. You're literally
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capable of anything, in my opinion. Kohlberger's parents live in
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a gated neighborhood in his hometown of Albrightville, Pennsylvania. His
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parents and sisters did not answer their phones when called.
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Kohlberger will appear in court on Tuesday for extradition proceedings
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and details on what led to his arrest will be
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unsealed once he is brought back to Idaho to face charges.
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Now that's going to be very interesting. It's going to
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00:19:02.150 --> 00:19:04.950
be very interesting to see what the probable cause was,
331
00:19:05.190 --> 00:19:07.730
what the arrest affidavit has to say, and all of
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00:19:07.769 --> 00:19:10.690
the other court paperwork that has to be submitted when
333
00:19:10.710 --> 00:19:14.210
you have somebody like this who's facing charges. Now, that
334
00:19:14.250 --> 00:19:16.910
doesn't mean that they're not going to seal it. We
335
00:19:16.950 --> 00:19:21.529
saw down in Delphi a lot of sealing, a lot
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of redactions, and that was to protect the integrity of
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the case. So with as adamant as they have been
338
00:19:29.440 --> 00:19:32.400
about protecting the integrity of the case here, I wouldn't
339
00:19:32.420 --> 00:19:34.400
be shocked to see them try and have some sealing
340
00:19:34.829 --> 00:19:38.710
and some redactions to the documents that are released to
341
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the public. Now, do I know that's going to happen
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00:19:41.630 --> 00:19:44.509
for sure? I don't. But we have seen it happen before,
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and there is precedent for that if you're trying to
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keep the case a little bit more secretive until you
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you're ready to really unleash and let the prosecution go wild.
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So it's going to be interesting to see what happens
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here as far as that goes. and if they're going
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to be transparent with the arrest affidavit, or if we're
349
00:20:02.299 --> 00:20:05.109
going to have some seals. So we'll keep our eye
350
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on it, obviously. And as this new information unfolds, as
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this story evolves, we'll be here every step of the way,
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like we have been from the beginning, waiting on the
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train of justice to come slamming down the tracks. All right, folks,
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that's going to do it for this one. If you'd
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like to contact me, you can do that at BobbyCapucci
356
00:20:25.140 --> 00:20:33.289
at ProtonMail.com. That's B-O-B-B-Y-C-A-P-U-C-C-I at ProtonMail.com. You can also find
357
00:20:33.329 --> 00:20:39.470
me on Twitter at B-O-B-B-Y underscore C-A-P-U-C-C-I. The link that
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00:20:39.529 --> 00:20:43.849
I discussed can be found in the description box. Home health, baby, baby.
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00:20:44.470 --> 00:20:48.140
What's up, everyone? And welcome back to the program. In
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this episode, we're going to dive right back into the
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court documents. And this time, we're looking at the objection
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by Brian Kohlberger to appeal, amend, and or clarify the
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non-dissemination order. And this is the argument that Brian Kohlberger's
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00:21:04.890 --> 00:21:08.390
team is making as to why the non-dissemination order should
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stay in place. So, let's get to it. Case number CR29-22.
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Dash zero zero zero two eight zero five. The state
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of Idaho plaintiff versus Brian C. Koberger, the defendant. Comes now.
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Brian C. Koberger, by and through their attorney, J. Weston Lodgson,
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chief deputy of litigation, and hereby objects to the motion
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to appeal, amend and or clarify the non-dissemination order filed
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by Shannon Gray as counsel for the Gonsalves family. This
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objection is made on the grounds that the non-dissemination order
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properly requires Mr. Gray to abide by the clear requirement
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of the ethical rules of this state. And remember, they're
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having their hearing on May 22nd. So they're going to
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get this hammered out or at least get the discussion going.
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00:22:04.079 --> 00:22:10.420
Argument Section 1 The court's order is not volitive of Mr.
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Gray's First Amendment rights. In his memorandum of support of
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motion for appeal and or clarification of amended non-dissemination order,
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00:22:19.680 --> 00:22:24.559
hereafter memorandum, Mr. Gray contends that because his clients, the
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00:22:24.599 --> 00:22:30.359
Gonsalves family, are classified as non-party citizens, application of the
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00:22:30.420 --> 00:22:35.579
court's non-dissemination order to him constitutes a prior restraint on
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00:22:35.619 --> 00:22:38.990
his right to free speech under the First Amendment. In
384
00:22:39.049 --> 00:22:42.390
support of this position, Mr. Gray cites the fair trial
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00:22:42.779 --> 00:22:47.299
and public disclosure provision of the ABA Standard for Criminal Justice,
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00:22:47.759 --> 00:22:53.240
IRPC 3.6, as well as the precedent established under Shepard v. Maxwell,
387
00:22:53.240 --> 00:22:56.369
384 U.S. 333, 1966, Nebraska Press Association v. Stewart, 427 U.S. 539, 1976,
388
00:22:56.369 --> 00:23:09.579
and Gentile v. the State Bar of Nevada, 501 U.S.
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00:23:09.579 --> 00:23:14.259
1030 1991. The issue at hand may be summarized as follows,
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00:23:14.740 --> 00:23:19.140
whether application of a non-dissemination order to an attorney representing
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00:23:19.180 --> 00:23:23.740
the family of an alleged murder victim constitutes an intolerable
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00:23:23.819 --> 00:23:29.119
prior restraint on speech. The First Amendment prohibits laws abridging
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00:23:29.160 --> 00:23:31.990
the freedom of speech, while the Six guarantees to the
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00:23:32.029 --> 00:23:35.289
criminal defendant the right to a speedy and public trial
395
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by an impartial jury. Occasionally in conflict, where protected pretrial
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00:23:40.759 --> 00:23:44.880
expression threatens the impartiality of the jury, the United States
397
00:23:44.900 --> 00:23:49.109
Supreme Court has determined certain parties' First Amendment rights may
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00:23:49.150 --> 00:23:52.829
be limited when exercise of those rights would result in
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00:23:52.890 --> 00:23:56.559
prejudice to the defendant, noting, with their life at stake,
400
00:23:56.880 --> 00:23:59.970
it is not requiring too much that the defendant be
401
00:24:00.029 --> 00:24:04.289
tried in an atmosphere undisturbed by so huge a wave
402
00:24:04.369 --> 00:24:07.470
of public passion. Shepard, 384 U.S. at 351, quoting Irvin v. Dowd,
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00:24:07.470 --> 00:24:08.970
266 U.S. 717, 728, and 1961, as a means of
404
00:24:08.990 --> 00:24:12.329
reducing the appearance of prejudicial material and to protect the
405
00:24:12.690 --> 00:24:27.430
jury from outside influence. A trial court, may prescribe extrajudicial
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00:24:27.490 --> 00:24:31.650
statements by any lawyer, party, witness, or court official, and
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00:24:31.690 --> 00:24:36.460
may also promulgate a regulation with respect to dissemination of
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information of information about the case. Shepard 384 U.S. at 358-62.
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In either case, the cure lies in those remedial measures
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00:24:48.799 --> 00:24:52.579
that will prevent the prejudice at its inception. ID 384 U.S.
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at 363. One such measure is at issue here. As
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00:24:59.619 --> 00:25:03.640
in Stewart, this court is presented with a confrontation between
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00:25:03.720 --> 00:25:08.670
prior restraint imposed to protect one vital constitutional guarantee and
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the explicit command of another that the freedom to speak
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00:25:12.509 --> 00:25:15.029
shall not be abridged. Stewart, 427 U.S. at 570. Unlike
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00:25:15.079 --> 00:25:22.039
in Stewart, however, The regulation at issue is as to
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00:25:22.099 --> 00:25:26.039
an attorney who may be subjected to greater limitations than
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00:25:26.099 --> 00:25:29.599
could be imposed on the press, as the Supreme Court
419
00:25:29.660 --> 00:25:33.660
noted in Shepard. The court must take such steps by
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00:25:33.740 --> 00:25:38.650
rule and regulation that will protect their processes from prejudicial
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00:25:38.789 --> 00:25:44.849
outside interferences. Neither prosecutors. counsels for defense, the accused, witnesses,
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00:25:45.130 --> 00:25:49.170
court staff, nor enforcement officers coming under the jurisdiction of
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the court should be permitted to frustrate its function. Collaboration
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between counsel and the press as to information affecting the
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fairness of a criminal trial is not only subject to regulation,
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00:26:01.650 --> 00:26:10.880
but is highly censorable and worthy of disciplinary action. Shepard 384, U.S. 363.
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00:26:10.880 --> 00:26:15.200
This holding was expressly upheld in genteel, wherein the Supreme
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00:26:15.240 --> 00:26:19.000
Court found the speech of lawyers representing clients in pending
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00:26:19.019 --> 00:26:23.470
cases may be regulated under a less demanding standard than
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that established for regulation of the press in Stewart and
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00:26:28.049 --> 00:26:32.230
the cases which preceded it. Lawyers representing clients in pending
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cases are key participants in the criminal justice system and
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the state may demand some adherence to the precepts of
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that system in regulating their speech as well as their conduct.
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Gentile 501 U.S. at 1074. In an attempt to exclude
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himself from these holdings, Mr. Gray argues that because his
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clients are not parties to the case and therefore are
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not subject to the order, see Memorandum page 3, 6
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00:27:00.079 --> 00:27:03.269
and 8, he too is due an equal measure of
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deference and exclusion. The weight of authority is contrary to
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his position. In Idaho State Bar v. TAP 129 Idaho
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00:27:12.910 --> 00:27:20.589
414 925 P. 2D 1113 1996, the Idaho Supreme Court made
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it clear that courts must strike a reasonable balance between
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the right of free speech and the state's legitimate interest
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in preserving the integrity of its judicial system. TAP 129
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Idaho 414 at 417-925-P.2D at 1116. In reaching this conclusion,
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the TAP court relied upon the genteel decision, which, in
448
00:27:45.180 --> 00:27:48.420
the court's words, balanced the state's interest in assuring fair
449
00:27:48.460 --> 00:27:53.559
trials against the free speech interests of attorneys. Thus, a
450
00:27:53.579 --> 00:27:58.500
case associated, speaker's status as a lawyer's, alters the degree
451
00:27:58.740 --> 00:28:02.950
to which their speech is protected. This lawyer versus non-lawyer
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00:28:02.990 --> 00:28:07.349
distinction is recognized broadly elsewhere, even in cases where the
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00:28:07.410 --> 00:28:10.609
speaker attorney claims not to be involved with the case
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00:28:10.849 --> 00:28:18.259
in question. Good, 821 F. 3D, 553 Fifth Circuit, 2016. The
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00:28:19.059 --> 00:28:22.539
Fifth Circuit Court of Appeals considered whether an attorney who
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routinely communicated with and occasionally passed notes to the defense
457
00:28:26.799 --> 00:28:30.250
could be sanctioned for violation of of a non-dissemination order
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00:28:30.589 --> 00:28:34.089
and the Louisiana criminal trial publicity rule because he was
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not a lawyer associated with the defense or trial participants.
460
00:28:39.089 --> 00:28:43.369
Application to whom, Good argued, the local rule was limited.
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00:28:44.049 --> 00:28:50.069
Good 821 F. 3D at 557. Rejecting Good's argument, the court
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00:28:50.109 --> 00:28:54.930
relied upon Gentile's own language that because associated lawyers have
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special access to information and Through discovery and client communications,
464
00:28:59.980 --> 00:29:03.759
their extrajudicial statements pose a threat to the fairness of
465
00:29:03.819 --> 00:29:07.220
a pending proceeding since lawyer's statements are likely to be
466
00:29:07.279 --> 00:29:17.490
received as especially authoritative. Similar holdings have been reached across
467
00:29:17.529 --> 00:29:27.660
the circuit courts. See Mezabal v. Allen, 411F. 3D. 712, 6th Circuit, 2005. Morrissey, 168. F. 3D, 134.
468
00:29:27.650 --> 00:29:30.799
Fourth Circuit, 1999. Berner vs. Del Honte, 129. F. 3D, 20.
469
00:29:30.799 --> 00:29:53.299
First Circuit. U.S. vs. Cutler, 58. Further, the 11th and
470
00:29:53.599 --> 00:29:58.660
2nd Circuits have interpreted the heavy presumption against constitutionality described
471
00:29:58.700 --> 00:30:02.869
in Stewart as being unique to prior restraints directed to
472
00:30:02.890 --> 00:30:07.009
the press and suggested the Supreme Court's shepherd holding as
473
00:30:07.069 --> 00:30:13.019
suggesting a restrictive order limiting extrajudicial commentary of trial participants
474
00:30:13.470 --> 00:30:16.680
as an alternative to a prior restraint on the media.
475
00:30:17.819 --> 00:30:24.009
The News Journal Corp. v. Foxman, 939 F. 2F, 1499, 1512-13,
476
00:30:24.990 --> 00:30:33.730
11th Circuit, 1991. See also ZAL 968 F. 2D at 928.
477
00:30:33.730 --> 00:30:37.950
Lawyers representing clients in pending cases may be regulated under
478
00:30:37.990 --> 00:30:41.690
a less demanding standard than that established for regulation of
479
00:30:41.730 --> 00:30:47.440
the press. quoting Gentile at 501, U.S. at 1074. As
480
00:30:47.519 --> 00:30:51.289
in good, Mr. Gray has special access to information via
481
00:30:51.329 --> 00:30:55.589
his clients. Dissemination of information forbidden by the court's order
482
00:30:55.890 --> 00:30:59.390
would be deemed authoritative as a result of this access
483
00:30:59.910 --> 00:31:03.799
and Mr. Gray's status as an attorney, and therefore would
484
00:31:03.859 --> 00:31:08.440
endanger the jury's impartiality. The court's exemption of Mr. Gray's
485
00:31:08.500 --> 00:31:13.339
client's from its order effectively answers Mr. Gray's First Amendment concerns,
486
00:31:13.799 --> 00:31:17.400
while its continued application to him accounts for his apparent
487
00:31:17.440 --> 00:31:24.420
authority and special access to the facts. Section 2. IRPC 3.6
488
00:31:24.420 --> 00:31:27.839
is not fashionably vague nor vague as applied to Mr.
489
00:31:27.900 --> 00:31:32.289
Gray's circumstances. Mr. Gray then argues that even if the
490
00:31:32.390 --> 00:31:35.930
court may order him not to disseminate information to the press,
491
00:31:36.450 --> 00:31:41.579
because the court's order mirrors the language of of IRPC 3.6
492
00:31:41.579 --> 00:31:44.279
it is vague on its face and as applied to
493
00:31:44.319 --> 00:31:49.509
his circumstances first IRPC 3.6 in no way is vague
494
00:31:49.809 --> 00:31:53.250
on its face Mr. Gray's argument on this point is
495
00:31:53.349 --> 00:31:57.250
premised on a faulty understanding and misreading of the genteel
496
00:31:57.289 --> 00:32:01.630
holding and genteel the Supreme Court expressly stated we are
497
00:32:01.670 --> 00:32:06.490
not called upon to determine the constitutionality of ABA model
498
00:32:06.529 --> 00:32:12.150
rule 3.6 1981 but only Rule 117 as it has
499
00:32:12.190 --> 00:32:16.990
been interpreted and applied by the state of Nevada. Gentile
500
00:32:16.990 --> 00:32:22.190
501 U.S. at 1036. Moreover, the Supreme Court held nothing
501
00:32:22.250 --> 00:32:27.029
inherent in Nevada's formulation of the trial publicity rule fails
502
00:32:27.109 --> 00:32:32.119
First Amendment review. But as this case demonstrates, Rule 117
503
00:32:32.119 --> 00:32:36.240
has not been interpreted in conformance with those principles by
504
00:32:36.279 --> 00:32:41.180
the Nevada Supreme Court. Gray's assertion that Gentile's court held
505
00:32:41.220 --> 00:32:45.710
that the wording of Rules 3.6 and 3.8 was unconstitutionally
506
00:32:45.769 --> 00:32:50.349
vague is simply wrong, because Gentile only found that the
507
00:32:50.410 --> 00:32:55.099
rule was unconstitutional as applied. That decision does not mandate
508
00:32:55.130 --> 00:33:00.240
a similar finding when evaluating IRPC 3.6. To the contrary,
509
00:33:00.660 --> 00:33:05.319
the Supreme Court's expressed finding that nothing inherent In Nevada's rule,
510
00:33:05.640 --> 00:33:09.819
failed First Amendment review indicates that the same conclusion is
511
00:33:09.880 --> 00:33:15.059
appropriate with regard to IRPC 3.6, which, as Mr. Gray
512
00:33:15.099 --> 00:33:20.339
himself states, is similar in wording to ABA Rule 3.6. Mr.
513
00:33:20.380 --> 00:33:26.289
Gray's argument that IRPC 3.6 is unconstitutionally vague as applied
514
00:33:26.349 --> 00:33:31.250
to his own circumstances is also faulty. In Gentile, the
515
00:33:31.289 --> 00:33:35.150
Supreme Court found that one central point must dominate the
516
00:33:35.230 --> 00:33:40.309
court as applied vagueness analysis. This case involves political speech.
517
00:33:40.789 --> 00:33:44.420
At issue here is the constitutionality of a ban on
518
00:33:44.460 --> 00:33:50.059
political speech, critical of the government and its officials. Gentile
519
00:33:50.059 --> 00:33:53.799
501 U.S. at 1034. Well, it is true that Mr.
520
00:33:53.880 --> 00:33:57.420
Gray and the Gonsalves family have criticized the police in
521
00:33:57.460 --> 00:34:01.119
this matter in the past, Since Mr. Koberger's arrest, their
522
00:34:01.180 --> 00:34:06.369
statements have been focused on him. CEG King 5, father
523
00:34:06.430 --> 00:34:12.050
of Idaho murder victim, says Koberger was overwhelmed in court. Additionally,
524
00:34:12.469 --> 00:34:15.849
at issue in Gentile was the confusion created by the
525
00:34:15.889 --> 00:34:22.059
Safe Harbor exception for statements by the defense about their defense. Mr.
526
00:34:22.099 --> 00:34:25.199
Gray has essentially agreed his client is not a real
527
00:34:25.239 --> 00:34:27.820
party to this action and has nothing similar to a
528
00:34:27.860 --> 00:34:31.889
defendant's interest in sharing their defense with the press. Thus,
529
00:34:32.170 --> 00:34:36.289
the vagueness found in Gentile's in opposite to his concerns.
530
00:34:37.110 --> 00:34:41.909
Section 3. As an attorney, Mr. Gray cannot claim vicarious
531
00:34:41.969 --> 00:34:45.800
exemption from the rules of professional conduct and is therefore
532
00:34:45.860 --> 00:34:51.559
bound by IRPC 3.6. Finally, Mr. Gray asserts that he
533
00:34:51.619 --> 00:34:55.219
is allowed to relay to the media any of the opinions, views,
534
00:34:55.280 --> 00:34:59.139
or statements of those family members regarding any any part
535
00:34:59.280 --> 00:35:03.039
of the case, regardless of the rules of professional conduct,
536
00:35:03.380 --> 00:35:06.320
because it would place an undue burden on the victim's
537
00:35:06.360 --> 00:35:10.420
families if the attorney whom they retained to represent their
538
00:35:10.500 --> 00:35:15.099
interests was prohibited from serving as their spokesperson to the
539
00:35:15.139 --> 00:35:19.199
media and other parties in transmitting the victim's family's thoughts
540
00:35:19.659 --> 00:35:24.179
and opinions. His assertion of vicarious exemption from the rules
541
00:35:24.239 --> 00:35:28.789
of professional conduct is plainly baseless. You made this happen.
542
00:35:29.429 --> 00:35:34.230
Besides being entirely inconsistent with the above provided precedent, Mr.
543
00:35:34.309 --> 00:35:37.889
Gray's position on this issue is contrary to the long-held
544
00:35:37.929 --> 00:35:42.219
acknowledgement that, even outside the courtroom, lawyers in pending cases
545
00:35:42.659 --> 00:35:46.659
are subject to ethical restrictions on speech, which an ordinary
546
00:35:46.719 --> 00:35:51.260
citizen would not be. Such as has always been the case,
547
00:35:51.860 --> 00:35:56.280
as membership in the bar is a privilege burdened with conditions. Third,
548
00:35:56.340 --> 00:35:58.780
versus the United States, 354 U.S., 278, 281, 1957. Quoting in, Rouse, 221,
549
00:35:58.760 --> 00:35:59.940
New York, 81, 84, 116, NE, 782, 783, 1917. Boy,
550
00:35:59.960 --> 00:36:03.679
going all the way back to 1917 for that precedent, huh? Mr.
551
00:36:03.679 --> 00:36:06.739
Gray's representation of the Gonsalves family does not entitle him
552
00:36:06.760 --> 00:36:24.619
to the same degree of freedom of speech... they enjoy
553
00:36:24.760 --> 00:36:28.219
as ordinary citizens. Further, Mr. Gray makes it clear that,
554
00:36:28.760 --> 00:36:31.599
if his motion is granted, he will comment on the
555
00:36:31.639 --> 00:36:37.980
case and other issues surrounding the investigation pursuant to Rule 3.6.
556
00:36:37.980 --> 00:36:41.619
What portion of Rule 3.6 Mr. Gray invokes here is
557
00:36:41.659 --> 00:36:45.710
an open question. Insofar as the rule addresses Mr. Gray's
558
00:36:45.750 --> 00:36:49.969
intended subject matter, it expressly identifies it as a subject
559
00:36:50.340 --> 00:36:54.670
more likely than not to have material prejudicial effect on
560
00:36:54.710 --> 00:36:58.630
a proceeding, particularly when they refer to a criminal matter
561
00:36:59.090 --> 00:37:05.530
or any other proceeding that could result in incarceration. IRPC 3.6,
562
00:37:05.530 --> 00:37:09.409
comment number 5. Indeed, the rule notes that criminal jury
563
00:37:09.449 --> 00:37:15.559
trials will be most sensitive to extrajudicial speech. IRPC 3.6,
564
00:37:15.559 --> 00:37:19.130
comment number 6. Mr. Gray argues he will not be
565
00:37:19.210 --> 00:37:22.730
offering up his own opinion regarding the facts surrounding the case,
566
00:37:23.250 --> 00:37:27.789
but rather only serving as his client's spokesperson conduit to
567
00:37:27.829 --> 00:37:31.679
the media and other parties in transmitting the victim's family's
568
00:37:31.739 --> 00:37:36.480
thoughts and opinions. Far from mitigating the already tenuous nature
569
00:37:36.519 --> 00:37:40.239
of this argument, this signal of intent again places Mr.
570
00:37:40.300 --> 00:37:44.849
Gray at odds with Rule 3.6 and Gentile. the court
571
00:37:45.070 --> 00:37:48.829
has already exempted Mr. Gray's clients from its order, adequately
572
00:37:48.889 --> 00:37:53.349
preserving their First Amendment rights. To extend this exemption to Mr.
573
00:37:53.409 --> 00:37:58.230
Gray would function solely to grant potentially prejudicial statements, the
574
00:37:58.269 --> 00:38:02.159
weight recognized as a danger by the genteel court on
575
00:38:02.219 --> 00:38:07.639
a subject the rule distinguishes as already extremely susceptible to prejudice.
576
00:38:08.139 --> 00:38:11.579
If Mr. Gray truly intends only to voice his clients'
577
00:38:11.619 --> 00:38:15.849
thoughts and opinions... then the court's previous exemption has already
578
00:38:15.949 --> 00:38:20.150
cured the supposed First Amendment infirmity. Mr. Gray's clients may
579
00:38:20.230 --> 00:38:23.489
voice these thoughts and opinions themselves as they clearly have
580
00:38:23.510 --> 00:38:26.889
been doing. The sole effect of maintaining the court's order
581
00:38:27.250 --> 00:38:31.030
in present form is the continued operation of a remedial
582
00:38:31.110 --> 00:38:35.800
measure that prevents prejudice at its inception. Mr. Gray is
583
00:38:35.860 --> 00:38:38.940
bound by the rules of professional conduct and the First
584
00:38:38.980 --> 00:38:43.050
Amendment does not excuse him from that obligation. This was
585
00:38:43.130 --> 00:38:47.750
dated February 8th, and it was signed by Jay Lodson,
586
00:38:48.769 --> 00:38:54.250
the chief deputy litigation assigned attorney to Brian Kohlberger. All right, folks.
587
00:38:54.289 --> 00:38:57.550
So with this hearing coming up about this issue, I
588
00:38:57.590 --> 00:39:00.250
thought this would be a solid add to the catalog
589
00:39:00.269 --> 00:39:03.369
to give us an idea of what the argument is here.
590
00:39:03.880 --> 00:39:07.360
And obviously, after they have this hearing on May 22nd,
591
00:39:07.639 --> 00:39:10.679
we'll have an episode breaking it all down. But until then,
592
00:39:11.039 --> 00:39:14.670
we'll continue to swim through this muck looking for some clarity.
593
00:39:15.449 --> 00:39:17.190
All right, folks, that's going to do it for this one.
594
00:39:17.610 --> 00:39:20.190
All of the information that goes with the episode can
595
00:39:20.230 --> 00:39:23.820
be found in the description box. And welcome back to
596
00:39:23.860 --> 00:39:29.619
the program. So Brian Koberger is requesting more time to decide.
597
00:39:30.139 --> 00:39:33.320
about offering an alibi. And how do we know that?
598
00:39:33.599 --> 00:39:36.940
Because there were new court filings that hit the docket.
599
00:39:37.940 --> 00:39:42.139
And these new filings occurred on Monday. So they're definitely
600
00:39:42.400 --> 00:39:45.519
working behind the scenes double time in the camp of
601
00:39:45.539 --> 00:39:50.260
Brian Koberger, trying to formulate a strategy for a defense here. Now,
602
00:39:50.400 --> 00:39:52.639
what they're going to come up with, your guess is
603
00:39:52.739 --> 00:39:55.320
as good as mine, because as much as I've racked
604
00:39:55.360 --> 00:39:58.000
my brain and tried to play the devil's advocate here,
605
00:39:58.739 --> 00:40:02.360
I don't know how Brian Kohlberger plans to explain away
606
00:40:02.920 --> 00:40:05.539
all of the evidence that has been presented thus far
607
00:40:05.860 --> 00:40:09.280
against them, never mind what they have hidden up their sleeve.
608
00:40:10.059 --> 00:40:13.530
So today, we have an article from ABC News and
609
00:40:13.550 --> 00:40:18.030
the headline. Idaho College murder suspect Brian Kohlberger requests more
610
00:40:18.070 --> 00:40:23.010
time to decide offering an alibi. This article was authored
611
00:40:23.070 --> 00:40:28.239
by Sasha Pezenik. The man accused of killing four Idaho
612
00:40:28.280 --> 00:40:31.420
College students is asking the court for more time to
613
00:40:31.460 --> 00:40:35.019
decide whether to offer an alibi as he prepares to
614
00:40:35.059 --> 00:40:39.139
mount his defense at trial this fall, according to new
615
00:40:39.179 --> 00:40:43.340
court documents. Brian Kohlberger's lawyer said in a motion filed Friday,
616
00:40:43.820 --> 00:40:48.510
That because of the voluminous discovery process, which is still ongoing,
617
00:40:48.889 --> 00:40:52.130
and because they're still investigating the charges against their client,
618
00:40:52.489 --> 00:40:56.570
deciding now would be at a minimum premature as wading
619
00:40:56.610 --> 00:41:00.690
through the extensive information that makes up the case is incomplete.
620
00:41:01.289 --> 00:41:03.949
Sounds like a bunch of hogwash to me. What's his alibi?
621
00:41:03.989 --> 00:41:06.239
Where was he? and who had eyes on him at
622
00:41:06.280 --> 00:41:09.179
the time when these murders occurred. You would think that
623
00:41:09.219 --> 00:41:12.239
you'd have your alibi all wrapped up nice and tight
624
00:41:12.360 --> 00:41:14.610
with a little bow on it, but that doesn't seem
625
00:41:14.639 --> 00:41:16.969
to be what's going on with Kohlberger here, and he
626
00:41:16.989 --> 00:41:20.469
can't even offer up an alibi. So, how is it
627
00:41:20.530 --> 00:41:23.510
that he's going to get himself off these charges when
628
00:41:23.530 --> 00:41:26.909
something basic as far as an alibi hasn't even been
629
00:41:26.969 --> 00:41:30.539
provided as of yet? There's a question for all of
630
00:41:30.579 --> 00:41:35.329
you contrarians out there who think Brian Kohlberger is innocent. Additionally,
631
00:41:35.510 --> 00:41:39.909
deciding at this juncture may tread into disclosures of protected information,
632
00:41:39.949 --> 00:41:42.510
they said. Oh, it may, huh? You would think that
633
00:41:42.550 --> 00:41:44.869
if you had an alibi, you'd be screaming about it
634
00:41:45.090 --> 00:41:47.570
from the rooftop. I know that if I was accused
635
00:41:47.610 --> 00:41:50.150
of crimes such as these, I'd be yelling and screaming
636
00:41:50.329 --> 00:41:53.550
for everybody to hear me. My alibi is this. Go
637
00:41:53.679 --> 00:41:56.639
ask Johnny. We were down at the local pub doing
638
00:41:56.679 --> 00:42:00.639
shots of Jägermeister. But no, we haven't heard anything like that,
639
00:42:00.679 --> 00:42:04.500
have we? Instead, it's about the process. It's about the technicalities.
640
00:42:04.980 --> 00:42:07.780
And that's how it always will be for people who
641
00:42:07.820 --> 00:42:11.010
are not innocent. Now, it's one thing when you're innocent
642
00:42:11.489 --> 00:42:14.650
and you're attacking the process as well as providing some
643
00:42:14.730 --> 00:42:18.150
evidence for why you're innocent. But when people are only
644
00:42:18.210 --> 00:42:21.440
attacking the process... One thing that I have certainly learned
645
00:42:21.820 --> 00:42:24.380
over the past few years that we've been following this stuff,
646
00:42:24.800 --> 00:42:27.110
when it's a complete attack of the process looking for
647
00:42:27.139 --> 00:42:31.690
loopholes and technicalities, it usually means that the person doing
648
00:42:31.730 --> 00:42:35.389
that is guilty and that their legal team has no
649
00:42:35.489 --> 00:42:38.489
other way to go after the case and try and
650
00:42:38.530 --> 00:42:41.849
destroy the foundation that it's built upon. And this defense
651
00:42:41.869 --> 00:42:45.769
strategy thus far is oozing with all sorts of signs
652
00:42:46.190 --> 00:42:49.940
of exactly that. Kohlberger's defense says It needs time to
653
00:42:49.980 --> 00:42:54.920
make this determination and consider evidentiary rules. Now, I don't
654
00:42:54.960 --> 00:42:57.380
disagree with that. There's a lot of discovery to get
655
00:42:57.420 --> 00:42:59.760
through here. And that's why I said from the beginning,
656
00:43:00.199 --> 00:43:02.280
I don't think this trial kicks off when they say
657
00:43:02.320 --> 00:43:05.539
it's going to in October. I think we're looking at
658
00:43:05.940 --> 00:43:09.300
a summer of 2024 type of start date for this.
659
00:43:09.960 --> 00:43:13.400
And the reason being is that the discovery is massive.
660
00:43:13.860 --> 00:43:16.980
We're talking three trilobites so far of information that they've
661
00:43:17.000 --> 00:43:21.429
handed over, meaning the prosecution. So the defense, obviously, they
662
00:43:21.469 --> 00:43:23.190
have to go through all of that with a fine
663
00:43:23.210 --> 00:43:27.010
tooth comb. And it's going to take time. So I
664
00:43:27.030 --> 00:43:30.280
highly doubt this trial kicks off in October, like they said.
665
00:43:30.719 --> 00:43:32.960
And you're getting a bunch of little tells about that
666
00:43:33.579 --> 00:43:35.760
along the way. And this is certainly one of them.
667
00:43:36.059 --> 00:43:38.659
When they start complaining or bringing up the fact that
668
00:43:38.940 --> 00:43:41.480
there's a lot of evidence to go through, that's usually
669
00:43:41.559 --> 00:43:44.460
a sign that they're going to ask for the trial
670
00:43:44.500 --> 00:43:48.429
to be delayed a little bit. The Latah County Prosecutor's
671
00:43:48.510 --> 00:43:51.590
Office leading the case against Kohlberger put in their demand
672
00:43:51.630 --> 00:43:54.849
for his notice of alibi a day after his May
673
00:43:55.170 --> 00:43:59.489
22nd arraignment. According to Idaho law, defendants are supposed to
674
00:43:59.530 --> 00:44:03.050
respond to that demand within 10 days or at such
675
00:44:03.110 --> 00:44:06.179
different time as the court may direct with a written
676
00:44:06.219 --> 00:44:09.039
statement of where they claim to have been at the
677
00:44:09.059 --> 00:44:12.300
time of the alleged crime, along with the identities of
678
00:44:12.340 --> 00:44:15.800
the witnesses on whom they plan to rely on for
679
00:44:15.840 --> 00:44:19.039
that alibi. Now, I'm sure that there's some legal mind
680
00:44:19.099 --> 00:44:22.780
out there that understands this way better than me. But
681
00:44:22.820 --> 00:44:25.110
it seems like if you have an alibi, that's one
682
00:44:25.130 --> 00:44:27.570
of the first things you want to talk about. Hey,
683
00:44:27.610 --> 00:44:30.730
go talk to so-and-so. We were hanging out. I didn't
684
00:44:30.769 --> 00:44:32.610
do this. Why am I even in jail right now?
685
00:44:33.050 --> 00:44:35.889
And if Brian Kohlberger was hanging out with people around
686
00:44:35.929 --> 00:44:39.329
this time when these murders occurred, do you really think
687
00:44:39.349 --> 00:44:41.300
he'd still be sitting in jail right now? Or do
688
00:44:41.320 --> 00:44:43.360
you think that Ann Taylor would be making a big
689
00:44:43.400 --> 00:44:45.840
deal about it? Of course, she'd be making a big
690
00:44:45.880 --> 00:44:48.420
deal about it to get him bailed out. And I'm
691
00:44:48.460 --> 00:44:50.159
sure the judge would look at that and say, hey,
692
00:44:50.179 --> 00:44:51.800
you know what? This guy has an alibi. What are
693
00:44:51.820 --> 00:44:54.659
you guys talking about here? But none of that's occurred.
694
00:44:55.139 --> 00:44:57.969
All we have seen is the massive pile of evidence
695
00:44:58.409 --> 00:45:01.590
that is being built against Brian Kohlberger. And it all
696
00:45:01.630 --> 00:45:04.889
looks damning. Each piece of evidence that we receive, as
697
00:45:04.929 --> 00:45:07.860
the public even, is more damning than the last one.
698
00:45:08.460 --> 00:45:10.800
The defense is asking the court for more time to
699
00:45:10.840 --> 00:45:14.329
decide or to make an exception to that rule. They
700
00:45:14.429 --> 00:45:16.730
ask that if the court is not inclined to grant
701
00:45:16.750 --> 00:45:20.949
their request, a hearing be set to present oral argument, evidence,
702
00:45:21.219 --> 00:45:25.059
and or testimony in support of their motion. No ruling
703
00:45:25.460 --> 00:45:28.059
has yet been issued. And I have my eye on
704
00:45:28.079 --> 00:45:31.659
those court documents, obviously, every single day. And when we
705
00:45:31.679 --> 00:45:34.559
get a ruling, we'll have it updated. I plan on
706
00:45:34.659 --> 00:45:37.579
adding some more documents to the catalog over the week.
707
00:45:38.000 --> 00:45:40.539
That way, we're not behind and we're all up to
708
00:45:40.579 --> 00:45:45.000
date on what's going on behind the scenes. Neither Kohlberger's
709
00:45:45.059 --> 00:45:49.340
attorneys nor prosecutors immediately responded to requests for comment for
710
00:45:49.380 --> 00:45:52.469
this story from ABC News, and they're not going to
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00:45:52.510 --> 00:45:55.650
comment because of the gag order. The judge in the
712
00:45:55.670 --> 00:45:59.630
case has issued an order largely barring both parties from
713
00:45:59.710 --> 00:46:04.769
speaking publicly about the investigation or pending prosecution outside of court.
714
00:46:05.369 --> 00:46:09.269
And just quickly, talking about judges, there wasn't a sudden
715
00:46:09.329 --> 00:46:13.119
shift in judges in this case. What happened was, The
716
00:46:13.159 --> 00:46:16.380
case originally hit Megan Marshall's office because she is a
717
00:46:16.420 --> 00:46:20.079
lower court. But now that it's progressed and he's been arraigned,
718
00:46:20.340 --> 00:46:22.590
it moves on to the next level of the court system.
719
00:46:22.929 --> 00:46:26.010
And that means it ends up in Judge John Judge's
720
00:46:26.070 --> 00:46:28.949
courtroom and not Judge Marshall's. And I know there was
721
00:46:28.969 --> 00:46:32.269
some confusion there about that issue. So that's what happened.
722
00:46:32.329 --> 00:46:35.780
It's nothing, you know, sinister or anything like that. That's
723
00:46:35.800 --> 00:46:38.119
just how the court system works. You get arraigned in
724
00:46:38.219 --> 00:46:40.699
one court and then you move on to the next level.
725
00:46:41.210 --> 00:46:44.590
and Idaho has a tiered court system that functions in
726
00:46:44.630 --> 00:46:49.329
that manner. Koberger, 28, was indicted last month in charge
727
00:46:49.389 --> 00:46:52.789
with four counts of first-degree murder and one count of burglary.
728
00:46:53.409 --> 00:46:56.179
At his arraignment in late May, Koberger declined to offer
729
00:46:56.219 --> 00:46:59.239
a plea, so the judge entered a not guilty plea
730
00:46:59.639 --> 00:47:03.260
on his behalf. A trial date has been set for
731
00:47:03.440 --> 00:47:08.039
October 2nd. Prosecutors allege that in the early morning hours
732
00:47:08.099 --> 00:47:13.800
of November 13, 2022, Kohlberger, a criminology Ph.D. student at
733
00:47:13.840 --> 00:47:18.119
Washington State University, broke into an off-campus home and stabbed
734
00:47:18.139 --> 00:47:23.130
to death four University of Idaho students, Ethan Chapin, Madison Mogan,
735
00:47:23.510 --> 00:47:28.989
Zanna Kernodle, and Kaylee Gonsalves. After a more than six-week hunt,
736
00:47:29.309 --> 00:47:33.349
police zeroed in on Kohlberger as a suspect, tracking his
737
00:47:33.389 --> 00:47:37.570
white Hyundai Elantra, cell phone, signal data, And recovering, what
738
00:47:37.610 --> 00:47:41.329
authorities say, was his DNA on a knife sheath found
739
00:47:41.630 --> 00:47:45.150
next to one of the victim's bodies, according to court documents.
740
00:47:45.730 --> 00:47:48.329
And that's the glue that binds it all together. That
741
00:47:48.369 --> 00:47:52.250
DNA on that knife sheath ties all that other evidence
742
00:47:52.469 --> 00:47:54.829
up in a nice little bow. And if you look
743
00:47:54.869 --> 00:47:58.360
at this evidence piecemeal, yeah, it doesn't look like it's
744
00:47:58.550 --> 00:48:00.780
a slam dunk. But when you look at all of
745
00:48:00.820 --> 00:48:04.579
the evidence combined, it makes all of that evidence that
746
00:48:04.639 --> 00:48:08.739
much stronger. And Brian Kohlberger and his team, they're going
747
00:48:08.760 --> 00:48:11.460
to have a big problem contending with all of that
748
00:48:11.539 --> 00:48:15.219
evidence balled into one. T-Mobile 5 was arrested on December
749
00:48:15.280 --> 00:48:19.239
30th in Pennsylvania after driving cross-country to spend the holidays
750
00:48:19.320 --> 00:48:23.300
at his family home in Albrightville, Pennsylvania. Since the time
751
00:48:23.340 --> 00:48:28.550
of Kohlberger's arrest, the prosecution has disclosed roughly 51 terabytes
752
00:48:28.570 --> 00:48:32.460
of information. as part of the discovery process, including thousands
753
00:48:32.500 --> 00:48:36.280
of pages of discovery, thousands of photographs, hundreds of hours
754
00:48:36.320 --> 00:48:41.239
of recordings, further, many gigabytes of electronic phone record and
755
00:48:41.320 --> 00:48:45.360
social media data, according to court documents. So they dropped
756
00:48:45.429 --> 00:48:48.429
a whole ass ton of information in the laps of
757
00:48:48.489 --> 00:48:50.949
the defense. Now, they have to have time to go
758
00:48:50.989 --> 00:48:53.369
through all of that. So like I said earlier in
759
00:48:53.409 --> 00:48:56.929
this episode, I don't see the trial, unfortunately, kicking off
760
00:48:57.550 --> 00:49:00.929
at the start date of October 2nd, like they're hoping.
761
00:49:01.559 --> 00:49:04.760
And that all is based on the gigantic amount of
762
00:49:04.860 --> 00:49:08.659
evidence that has to be gone through here. Mr. Kohlberger's
763
00:49:08.699 --> 00:49:13.199
investigation and preparation of his defense is underway. His defense
764
00:49:13.239 --> 00:49:15.949
said in a response to the state's alibi demand and
765
00:49:16.010 --> 00:49:19.969
request for a discovery disclosure filed on Friday, adding that
766
00:49:20.389 --> 00:49:24.190
as determinations are made regarding trial evidence, the same will
767
00:49:24.210 --> 00:49:29.070
be timely disclosed. Trial witnesses will be disclosed as determinations
768
00:49:29.139 --> 00:49:32.880
are made. The defense wrote, Mr. Kohlberger does intend to
769
00:49:32.920 --> 00:49:37.099
call individuals named in the state's supply discovery materials. So
770
00:49:37.260 --> 00:49:39.429
what that means is He doesn't plan on calling his
771
00:49:39.489 --> 00:49:42.940
own witnesses. He plans on calling witnesses that are being
772
00:49:42.980 --> 00:49:46.219
brought up by the prosecution. That way his defense can
773
00:49:46.260 --> 00:49:48.219
hammer them. But I think they're going to need to
774
00:49:48.260 --> 00:49:51.400
bring a little more to the party than just that.
775
00:49:51.820 --> 00:49:54.929
Because when all is said and done, just the evidence
776
00:49:54.949 --> 00:49:57.690
that we see here is a mountain high. And can
777
00:49:57.730 --> 00:50:01.590
you imagine what they have behind the scenes? Imagine GPS coordinates.
778
00:50:01.949 --> 00:50:04.789
him connecting to a Wi-Fi router, and all of the
779
00:50:04.849 --> 00:50:07.989
other evidence that has been collected in the aftermath of
780
00:50:08.030 --> 00:50:12.909
these murders, the task before Brian Kohlberger's lawyers is massive.
781
00:50:13.250 --> 00:50:16.050
The question is, are they up for the challenge? And
782
00:50:16.110 --> 00:50:20.309
what strategy do they plan on using? All right, folks,
783
00:50:20.329 --> 00:50:21.929
that's going to do it for this one. All of
784
00:50:21.969 --> 00:50:24.809
the information that goes with the episode can be found
785
00:50:25.159 --> 00:50:26.090
in the description box.