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Bryan Kohberger defense is due some DNA records, though may not get them all

Quadruple homicide suspect Bryan Kohberger listens to arguments during a hearing to overturn his grand jury indictment Oct. 26 in Moscow, Idaho.  (Kai Eiselein/AP pool photo)
By Kevin Fixler Idaho Statesman Idaho Statesman

Bryan Kohberger’s defense team is entitled to at least some of the DNA records law enforcement used to arrive at their client as the murder suspect in the University of Idaho student homicides, with the judge overseeing the case still yet to disclose what information may be withheld at prosecutors’ request.

Judge John Judge of Idaho’s 2nd Judicial District in Latah County issued an initial decision last week on the monthslong records fight. In the order, Judge ruled that the defense had met the “low threshold” under federal requirements to show the legal relevance to the case of the information contained in the records, forcing prosecutors to provide them through the legal process known as discovery.

Kohberger, 28, is accused of stabbing to death four college students at an off-campus home in Moscow in November 2022. The victims were seniors Madison Mogen and Kaylee Goncalves, both 21; junior Xana Kernodle and freshman Ethan Chapin, both 20.

Kohberger, who at the time was a graduate student at Washington State University, about 9 miles west of Moscow, faces four counts of first-degree murder and one count of felony burglary. Prosecutors plan to seek the death penalty for Kohberger if he is convicted by a jury.

The defense has sought all records from the FBI’s use of an advanced DNA technique called investigative genetic genealogy (IGG), which the prosecution first acknowledged in June was used to identify Kohberger. IGG entails building a family tree from DNA left at a crime scene through the use of online services, such as those offered by 23andMe and to hone in on a suspect.

The method has traditionally been reserved for cold cases, but is now increasingly used in high-profile or hard-to-solve active investigations. It has garnered some scrutiny over possible limits on civil liberties, in part from the lack of information on law enforcement’s processes.

Moscow police found a tan leather sheath for a combat-style knife next to Mogen’s body in her bed and later located a single source of male DNA on its button snap. The Ka-Bar brand sheath, which included a U.S. Marine Corps insignia, was left face down, partially under Mogen’s body and the comforter, according to the June legal filing.

Once the FBI landed on Kohberger through the technique, they sent a tip to local law enforcement to investigative him, Latah County Prosecutor Bill Thompson wrote in the June legal filing. But the prosecution does not intend to present the IGG results at trial, he said, and the information was not used to support any warrants during the investigation, including for Kohberger’s arrest, the prosecution stated at an August hearing over release of the disputed records.

Once Kohberger was taken into custody, a swab of his cheek was collected and compared to the DNA taken from the knife sheath found at the crime scene. It produced a “statistical match,” Thompson wrote.

Judge, in his ruling, cautioned about what role the records may end up playing in the case in granting at least some of them to the defense. He said they could ultimately prove irrelevant.

“It is plausible that Kohberger may use the IGG information obtained in discovery to challenge the admissibility of other evidence,” Judge wrote. “While such a challenge seems futile since the IGG information was not used to obtain the search warrant for Kohberger’s DNA and will not be presented at trial by the state, the court cannot say with certainty that the defense team could not make a successful challenge if given the information they seek.”

Judge signals possible protective order

Thompson also has argued that the FBI created limited records in developing the family tree that led to Kohberger, including only agents’ notes and those produced to document the DNA profile’s removal from the service after Kohberger’s arrest, per U.S. Department of Justice policy.

The prosecution doesn’t have those records and hasn’t seen them, Thompson said in court. Idaho’s discovery rules only require the prosecution to turn over what it has in its possession, he argued, among a host of other reasons why they shouldn’t be given to Kohberger’s defense team.

But Judge pointed to a recent Idaho Supreme Court ruling that records held by a law enforcement agency involved in the prosecution of a defendant are subject to criminal discovery rules.

“Here, the FBI was working in conjunction with the Moscow Police Department and the Idaho State Police to investigate the homicides,” Judge wrote. “Thus, the FBI’s records pertaining to its work on this case are records within the possession, custody, or control of the prosecutor for the purposes of discovery.”

Judge’s ruling comes with significance. As an issue that has never before been decided in Idaho, it stands to set a level of legal precedent for future cases in which IGG was used to locate a suspect.

His decision doesn’t mean it becomes the “law of the land,” because it wasn’t decided at the state appellate or supreme court level, “but you best bet other people will be citing it if it becomes relevant,” Boise-based criminal defense attorney Edwina Elcox told the Idaho Statesman by phone.

Still, Judge recognized prosecutors’ argument for withholding the identities of Kohberger’s distant relatives, and signaled he will issue a protective order for some of the IGG information. He decided to review the records himself behind closed doors to make that determination.

“The court understands the state’s desire to protect the individuals from unnecessary exposure, who likely do not even know their DNA was used in this case,” Judge wrote.

“I’m not surprised where he landed with kind of balancing the competing interests,” Elcox said.

Judge held a Thursday morning hearing to provide an update on his review of the records to help decide what, if any, the IGG records should be kept from the defense. He addressed which information he will hold under a protective order, potentially limiting some of what the defense can see.