SERIALously - 26: What if Bryan Kohberger is INNOCENT? | No DNA? Death Penalty? New Filings?

Episode Date: June 27, 2023

Bonus Episode! This is an episode I never thought I would make. But we have to talk about the latest filings in the State of Idaho vs. Bryan Kohberger case. Bryan Kohberger is now facing the death penalty, which I think we all saw coming, and now it’s official. Ironic, because it seems like now a lot of people are thinking he could be innocent, and it’s apparent in the court filings that Bryan thinks he was framed. What is the truth here? Has law enforcement arrested the right person?  Your True Crime BFF, Annie Elise  All Social Media Links: https://www.flowcode.com/page/annieelise_  About Me: https://annieelise.com/  For Business Inquiries: [e-mail]  Peter Tragos, Lawyer You Know: Youtube: https://www.youtube.com/@LawyerYouKnow IG: https://www.instagram.com/tragoslaw/ Twitter: https://twitter.com/tragoslaw?lang=en TikTok: https://www.tiktok.com/@thelawyeryouknow  Spotify: https://open.spotify.com/show/2REAq07SR8CZ5QgIsedAgl Apple: https://podcasts.apple.com/us/podcast/the-lawyer-you-know/id1341132473 

Hey true crime besties, welcome back to an all new episode of Serialistly. Hey everybody, welcome back to an all-new bonus episode of Serialistly with me, Annie, your true crime bestie. This is an episode that I never thought I would make, to be quite honest. But we have to talk about the latest filings in the state of Idaho versus Brian Koberger. I want to start off with the most recent development in this case. Brian Koberger is now facing the death penalty, which I do think a lot of us saw coming, but now it's official, which is ironic because it seems like now a lot of people are actually thinking that he could be innocent, and it's apparent in the court filings that Brian thinks he was framed.

So now let's switch gears just a little bit before we get into all of that. When the probable cause affidavit came out regarding Brian Koberger's involvement in the brutal murders of Kaylee, Maddie, Ethan, and Zanna back in January of this year when that was released, a lot of facts stated within that document were circumstantial. But when you look at all of those facts together, it painted a pretty damning picture, especially with the DNA on the knife sheath. That piece of the information in the affidavit was very concrete, black and white, at least for most people. I don't think I'm alone in having expectations that many of the circumstantial facts presented would later be corroborated by DNA evidence, digital evidence, forensics, I mean, you name it. Once law enforcement got deeper into their investigation, I, like many, assumed there would be a lot of evidence that would go back to those circumstantial facts and tie Brian to this because, of course, everybody seemed so sure that this was their guy.

And I just want to make it clear, many people still do, but some don't. And so far, there still is so much more that we don't know. And honestly, we won't know until this case goes to trial. That's just how it is. When the search warrants came back for his apartment and his office, I'm not going to lie. Initially, I kind of was surprised and thought to myself, you know, like, that's it? There's no weapon, there's no knife, no trophies that we know of that he kept, no entire wall full of pictures of the victims and news articles cut out and taped up about the murders like he's following it like some sort of psycho, which I'm kind of joking about the last one, but really I was definitely expecting more. I'm kind of joking about the last one, but really, I was definitely expecting more.

The university office having nothing in there wasn't surprising, but his apartment? I mean, that's his home. That's where you would think he would get all of his, like, creepy stalking on, and there was nothing. Also, that's where we assume he would have gone directly back to after committing the murders. So, no blood, no other evidence, again no trophies. On the other hand, I totally get that law enforcement needed to continue investigating and get some of the suspected DNA samples from the apartment tested and I really expected the bulk of the DNA to be in his car anyways considering that's directly where the killer went after being in the house and committing the quadruple murder.

Whenever the Elantra and Brian's parents' home search warrants were released showing the record of what they found and what was seized, I thought surely the Elantra would have some type of DNA or physical evidence in there. Even if it was cleaned 1,000 times over, there still would have been a trace of something, maybe hidden in the vent, under a seam, on a stitch, something. So now, the Elantra was seized, it was going to be flipped upside down, inside out, taken apart, and have every single inch examined by law enforcement. So for now, we would just have to wait for all of those details, right? Okay, no problem. There's been a gag order, we get it, we're not hearing anything. But now, fast forward to today. For months now, the defense has filed motion after motion trying to get the state to turn over the genetic genealogy

evidence that was used to identify Brian Koberger. Now it seems like they are going completely gloves off in their latest filing, in which they released even new information and surprisingly this seems to be the biggest piece of information to come out since the gag order was put in place and guys I cannot believe I am saying this but what the hell is going on is it possible that Brian Koberger is innocent I never thought I would utter those words and I'm not sure that I believe that at this point. Let me just be clear but like we need to talk about this because now a lot of people are wondering maybe he wasn't framed but did they get the wrong guy? Before we go through the filing I do want to preface all of this and say that I do still believe that police have

arrested the right person and maybe things will change at trial. It's doubtful, that's just my opinion, and he is innocent until proven guilty, however. But for a death penalty case, I do personally see some reasonable doubt here, and it concerns me. So just hear me out and let's get into it. So it starts off by saying, on November 13, 2022, law enforcement responding to a 911 call found Madison Mogan, Kaylee Gonsalves, Zanna Canodal, and Ethan Chapin deceased. Law enforcement later found a K-bar knife sheath placed next to Ms. Mogan on her bed. The sheath was placed button side down and partially under Ms. Mogan and the comforter.

Peter Tragos, also known as the lawyer you know on YouTube, has a great channel, which you've had, you've heard him on my channel before. He's come on here before, and he's been on the podcast before, and he really just does such an amazing job explaining things to us in lay terms and breaking it down. So links to his channel, podcast podcast and social media will be in the show notes below. But I'm going to include some of his analysis of this filing throughout this episode. And about the knife sheath, he says this. Law enforcement later found a K-bar knife sheath placed next to Ms. Mogan on her bed. Placed.

So this to me is one of the first times we've really gotten an explanation of what happened from the defense. And I am not going to say the defense is violating any privilege, attorney-client privilege, or anything like that. But we do know defense attorneys

talk to their clients. Do we have any of Koberger's statements or Koberger's versions of the story in here? Or is it just what his lawyer knows from reports and talking to experts and reading police reports and looking through documents that we've never seen? Hold on one second. But now we're getting into some of the defense's view of the facts of this case. And the word placed might make you think Koberger thinks he was framed.

That some knife sheath that he touched at some other time was taken by somebody and placed at the scene in order to frame him. More on that later. And we don't just say the sheath was placed once, but twice. The sheath was placed button side down and partially under Ms. Mogan and the comforter. On November 22nd, 2022, the Idaho State Police Lab in Meridian, Ohio located DNA on the button of the sheath, and they performed STR analysis that led nowhere when ran through CODIS, other than to show the provider was a male. Lab analysis were aware of two additional males' DNA within the house,

and another unknown male DNA on a glove that was found outside of the residence. The defense is unaware of what sort of testing, if any, was conducted on these samples, other than the STR DNA profiles. Further, these three separate and distinct male DNA profiles were not identified through CODIS, leading to the conclusion that the profiles do not belong to Mr. Koberger. Now, when I first heard all of this, everybody's first reaction was kind of like, oh shit, there's three other sets of male DNA and none of it belongs to Brian, so who do those things belong to? I personally didn't get super concerned about this. Did it raise question for reasonable doubt? Sure, super concerned about this. Did it raise question for reasonable doubt? Sure. But actual genuine concern didn't really kind of like wave over me because we know that King Road was a party house.

We know that there were people in and out of there all the time. We also know that sometimes they had house parties when the girls weren't even there. And we saw that on the body cam footage in that one incident too where they were trying to locate the girls and we just know it was a party house there were guys inside and outside all the time also regarding the glove that didn't worry me too much because we know that most men don't carry purses or handbags so given that it was the winter months and cold if somebody was wearing gloves over there and shoved them in their pockets and then they were on their way in or out of the house and one of them fell out, if it was

a winter glove, not a latex glove, that wouldn't surprise me either. Again, being a party house and people going in and out, that a winter glove may have dropped that belonged to one of the guys who was there. So all of that didn't really like give me an aha oh shit moment by any means. But the document goes on to say while this was ongoing police were investigating many various possible suspects. Many of them provided DNA and at least one had his DNA taken from a discarded cigarette. Many also had their phones taken and downloaded. Again DNA from a cigarette doesn't strike me as something that would belong to the killer as far as that DNA matching the killer because I highly doubt in the

very few minutes that the killer had of getting in and out of that house and committing this quadruple murder, I hardly doubt he was chain smoking after or even had time to burn with a cigarette. We know by all accounts from what we've heard and what was in the arrest affidavits and some of the court documents that it's more than likely the situation that Zanna and Ethan were unplanned targets and unplanned victims. So the fact that he had to blitz attack all four of them and then get out, I don't think he was smoking a cigarette. I think it's way more likely that that cigarette belonged to one of the many party goers from one of the many house parties. It goes on to say that one area of the investigation had to do with a white sedan seen on a camera located at 1122 King Road on November 18, 2022.

By November 25, 2022, police believed the car to be a white Elantra and asked law enforcement to be on the lookout for one. Precisely how the police came to believe the car was an Elantra is still unknown. A report from an analyst for the FBI shows that the analyst heavily relying on a video of a car heading in the wrong direction and at the wrong time on a ridge road. Again, they're pointing us to holes that are being poked in the state's case that they plan on poking, which is why anytime we just read a probable cause affidavit or something filed by one side or the other, you always want to hear both sides and how they look at it, because a jury is going to have to determine who's right. It continues with,

the state's latest filing admits that somewhere within all of this, they engaged in investigative genetic genealogy, also known as IgG, using the DNA taken from the button on the sheath, and now claims that it was due to the use of this technique that tipped local law enforcement to investigate Mr. Koberger. It remains unclear what the police first relied on in focusing their investigation on Mr. Koberger. No matter what came first, the car or the genetic testing, the investigation has provided nothing. There is no connection between Mr. Koberger and the victims. There is no connection between Koberger and the victims.

So that statement right there, to me, is one of the more important ones. Because for the defense to say that confidently in a filing, that means they're pretty confident that it's true. But I will say there are times in every case where one side or the other will say something that they believe is true and the other side will actually have a document, a witness, testimony, something, a social media post that will actually provide a connection.

And we never hear about this again. And it's like, oh, well, we thought they didn't have a connection at the time. But as we sit here, we have not heard a single connection. We've heard some, like maybe he said some things in messages on social media. I would call that a connection. So is that even true? I don't know. It continues, there is no explanation for the total lack of dna evidence from the victims in mr coberger's apartment office home or vehicle in essence through the lack of disclosure and their motion to protect the genetic genealogy investigation the state is hiding its entire case. So this is something.

No connection, I think, is a broader term, right? Because like if he even had looked at their social media at some point, that could be arguably a connection. But no DNA evidence in his home, office, car, connecting the victims to him, no DNA, apartment, office, home, or vehicle, that's significant. We know there's cleaning materials, right? And they're going to explain it with that. But in other documents, they said there's no explanation for it.

So having no DNA evidence, right? To be able to get rid of all touch DNA, blood, bodily fluids in a crime scene that's been explained to us as messy. I'm shocked because you can't say at this point, well, he drove another car or there was some this or some that because the white Elantra is how they connected him there. So the car is the big piece. We know they cleaned it, but did nothing seep through the carpets? He didn't miss a single spot where it was everywhere. They didn't find any clothes. Was he wearing, you know, was he wearing a certain outfit and then took it off and bundled it up perfectly. That's a really tough one for me. And we know he, you know, stopped places and, you know, drove this other route that if it was him, he could have ditched the clothes or the knife or whatever. But to me, that is really wild. And then we can't argue out of both sides of our mouth because he perfectly cleaned up his car.

He made sure that nothing, that none of his touch DNA or sweat or anything ended up in the victim's house or in his own car apartment everywhere else. Except he dropped the sheath that was covering the weapon he used to commit the crime and just left it there. That to me is, it's not impossible, right? Absolutely that could happen. Criminals make mistakes all the time and thank God they do. But to like commit the perfect crime and then also be pretty unsophisticated in how you got caught, something the state's definitely going to have to reconcile. They really will. And I think they have a lot of evidence. And I think the state's going to be able to put a lot of circumstantial evidence forward, which is why I want them to produce

this stuff to the defense. So if there's anything there, we can find out about it. Now, let me say this. We've heard how gruesome and what a bloodbath that crime scene was. We've even heard accounts that you could smell the blood upon entry. So how on earth is it possible that law enforcement has not found any of the DNA in at least Brian's car, which I'm honestly asking you guys that question. We know he cleaned the car, but he is not a magician. How is that physically possible? Not a tiny fraction of DNA was found in the car, not in the nooks and the

crannies, just nowhere, nothing staining underneath the carpet? If law enforcement really only has the sheath touch DNA from the knife sheath linking Brian, you would assume that they would really be going through every inch of that car with a fine toothed comb hoping to find more evidence. So I do have full faith that the car was fully examined. So now are we to believe that there was no blood trail either from the sliding glass doors all the way to where his car was parked? And then also nothing in the car? Did he change in the house? Because according to Dylan, she watched him walk straight out of Zanna's hallway dressed in all black and headed straight out the sliding glass.

We know he could not have been inside that house for any longer than 16 minutes, this based on the Elantra timestamps through ring camera footage. So are we to assume that this person was so meticulous as to not leave any of his DNA anywhere throughout the entire house or with the victims, except for touch DNA on a knife sheath, stabbed and killed four people, changed clothes possibly, walked out of the house, got in the car, left the scene, and there is no evidence of any of that? Frankly, for a death penalty case, I don't think it's a stretch to need a little bit more DNA evidence to quash any reasonable doubt in a juror's mind. But on the opposite side of that argument, for them to be going after the death penalty means that they must feel very strongly about the evidence they have.

Moving on, the defense continues to make some very damning claims against the state, saying the state apparently thinks that they don't need to explain how they came to think that it was Mr. Koberger's DNA on the sheath. Presumably, the defense is expected to accept at face value that the sheath had touched DNA just waiting for testing by all of the FBI's myriad resources. Additionally, the defense is to guess whether the state focused its investigation on Mr. Koberger via a bizarrely complex DNA tree experiment or through its faulty identification of the vehicle involved in this case. involved in the case. Is he talking about the year? Is he talking about the video where it's going the wrong way? This, I think, is a little too far down the road. I do think that they need to turn over how we got here. And I don't think we should accept anything at face value just because the state or law enforcement says it. So I agree with him there. It goes on to say,

perhaps unsurprisingly, Mr. Koberger does not accept that his defense does not need this information. The state begins their argument claiming Rule 16 has no interest in IgG testing, and then ends their argument claiming that somehow people will stop sharing their genetics if they were to realize that the government is watching. Both arguments must fail. To begin with, the state apparently only wants to prevent Mr. Koberger from seeing how the IGG profile was created and how many other people the FBI chose to ignore during their investigation.

In essence, the state argues that if the later STR testing is accurate, then there is no reason to concern ourselves with how the state came to investigate Mr. Koberger. What the state's argument asks this court and Mr. Koberger to assume is that the DNA on the sheath was placed there by Mr. Koberger and not someone else during the investigation that spans hundreds of members of law enforcement and apparently at least one lab that the state refuses to name. That's the touch DNA problem, right? If it was Koberger's blood on there,

that's different than touch DNA. Especially maybe that's how we're going to get some criminology connections or application to Koberger. Maybe he shook one of the officer's hands earlier that day. I don't know. Perhaps the most puzzling is the state's argument that while Rule 16 requires them to turn over the results or reports from scientific investigations, it does not require the state to disclose what law enforcement does with the results or reports. First of all, that sounds like an admission that the information as to how the IgG was carried out should be disclosed. Frankly, the fact that members of the FBI are so concerned about permitting Mr. Koberger

to know what they were up to with what was supposedly his DNA does not give one the impression that there is nothing to see here, as the state seems to imply. Finally, the state's claim that Rule 16 applies to this matter is quite bizarre. Presumably, the independent company the government relied on was paid for its work and would stand by it in court. The state provides no real argument as to why the company needs to be protected. Mr. Koberger is left to suspect that they wish to keep their methods from being questioned. To the extent that there is some concern about intellectual property, that can be addressed via a protective order. Second, the state appears to argue that everyone living on earth that provides genetic information is unaware that their DNA

could be used by a government somewhere for something. It would appear that the state is acknowledging that the companies are providing personal information to the state and that those companies and the government would suffer if the public were to realize it. The only two databases that are allowed access are the ones that already inform their users and those users can opt in to allow law enforcement searches. The statement by the government implies that the databases searched may be ones that law enforcement is specifically barred from, which explains why they do not want to disclose their methods. If the fact that the databases searched may be ones that law enforcement is specifically barred from, which explains why they do not want to disclose their methods. If the fact that the government is looking at the genetic information that people are sharing was at all an issue, then the state's

very public acknowledgement of such investigations was clearly a big mistake. So again, if people said, no, the government can absolutely not get this information and the government went and got it, now are we having certain fruit of the poisonous tree issues? To be determined. The defense does bring up a good point, that it's unreasonable to assume that everyone in the world's DNA is being compared and leading to this unbelievably high statistical number that the DNA could only be Brian's. It matters how big of a sample population of the DNA was being compared to in order to understand the depth of the statistical significance. Additionally, this is particularly interesting because if you remember, one of the reasons that the state did not want to disclose

how they got the genealogical DNA was because they felt that it would harm the public and that people would stop participating in DNA testing if they knew that their DNA could potentially be used in a criminal investigation. The defense points out a really good argument here that the only DNA companies with authorized access to do this from their customers have already agreed to their DNA being used for these types of purposes. And this brings me back to the search warrants that were filed back in January. Starting on pages 14 and 15, it says supplemental disclosure regarding DNA tests. It says, this information is being provided to the court pursuant to my duty and obligation to be fully candid with the court. I do not believe this information is exculpatory for the suspect.

However, if the court believes it is exculpatory, then the court should consider this supplemental disclosure. But I am specifically asking the court to not consider this supplemental disclosure as evidence supporting the existence of probable cause. The reason for this request is that if the DNA results are held inadmissible at some point, such a ruling would not impact the finding of probable cause for this warrant. So as long as this court is satisfied as to probable cause regardless of the DNA test result. Which, that makes me wonder, did the state do something to obtain DNA results they wanted in a way that is illegal? Or why would it not be admissible? Is this something that they do all the time? Was this a cover your ass to cover the whole warrant

so that it wasn't thrown out? I don't know. But listen to what Peter says. Now, being shady is different than breaking a law, right? Doing things the I don't know, but listen to what Peter says. Finally, the defense closes its statement by saying, in any case, it is hard to understand why Mr. Koberger should be the one to suffer because these companies and our government chose to either mislead or not educate the public. Mr. Koberger has reasons to be extremely suspicious of the IGG used in this case. Again, this is leverage. I don't think necessarily they're saying everything we're saying is a fact that's proven by the evidence. Like they're not saying we know something fraudulent is going on, but they're using the unknown as leverage with the court as a tool in their tool belt to say,

give us this information. We have to have this information or else this is not a fair trial. And they're protecting the record here over and over again. Rather than seeing it as some sort of complex tree building that led to him, it appears far more like a lineup where the government was already aware of who they wanted to target. Rather than have the investigation done by someone blind to the fact, the FBI chose to do it themselves. This is akin to the police pulling in Mr. Koberger and five of his cousins off the street and then pointing at him. A massive investigation came to focus on him and him alone. The state appears to be trying to hide its original domino, such that he cannot discover why Mr. Koberger has a right to discover and question the investigation that led to him.

The court should so find. So my question to everybody listening is this. Is the state's case any stronger than it was on the day that Brian Koberger was arrested? Is there truly no DNA evidence connecting him to the crime other than the touch DNA on the knife sheath? And if so, how is that possible? Now that the state has filed its notice that they intend to seek the death penalty, a lot of people are wondering if this means that they do have way more evidence or if they think they have a slam dunk case. That is possible, but the state can withdraw the death penalty at any time, and it could also be used as leverage to get a plea.

So for that, we will just have to wait and see. Casey Anthony, as a reminder, was also facing the death penalty, and we know how that went. Brian is in court today, again with his attorneys, to hear arguments on this motion and a few others. So for now, the court cameras will stay in place unless the judge later decides against it, and I've seen some reports that, the court cameras will stay in place unless the judge later decides against it. And I've seen some reports that indicate the gag order is still in place, but not

quite as limited as it has been the entire time, but ultimately still in effect. Has your opinion shifted at all? Do you think Brian could be innocent? How is it possible that there is no other DNA that we know of at this point that has linked Brian to a quadruple murder that was quoted to be a bloodbath? How is that possible? Let me know what you guys think. So I will keep you guys updated over here on the podcast with any updates or breaking news information that comes up in this case. So make sure you're following and subscribe to the podcast so that you'll get notified if there is any more breaking news. Because as a reminder, it is just way easier for me to jump on here, record, and push these updates out to you. So please just take a quick second to make

sure that you're following the podcast if you're not already. All right, I'll talk to you guys very, very soon. Thanks for tuning in to another bonus episode of Serialistly. Please take 30 seconds to rate and review this podcast, and I will be talking to you very soon. Thank you.