Judge in Kohberger Idaho murder case rules on ‘bushy eyebrows’ testimony

BOISE – One of the two surviving roommates of four University of Idaho students who were killed will be allowed to testify at suspect Bryan Kohberger’s murder trial that the intruder she saw inside their off-campus home had “bushy eyebrows,” the presiding judge ruled Friday.

Ada County Judge Steven Hippler said that the roommate’s testimony was “remarkably consistent” over the course of five interviews with police following the fatal stabbings, as well as during her testimony before a grand jury that unanimously indicted Kohberger on four counts of first-degree murder. Hippler denied the defense’s effort to keep the testimony hidden, and rejected the argument that it would be unfairly prejudicial against Kohberger.

“D.M.’s testimony about ‘bushy eyebrows’ is highly relevant in this case,” Hippler wrote. “D.M. is the only eyewitness to the intruder responsible for the homicides. It is the jury’s task to determine whether (the) defendant is that person.”

To compare with the physical trait, prosecutors said in prior court filings that they plan to admit into evidence a selfie Kohberger took about six hours after they believe the four students were killed.

“Whether or not Bryan Kohberger can be described as having ‘bushy eyebrows’ is a factual determination to be decided by the jury,” Latah County Senior Deputy Prosecutor Ashley Jennings wrote.

Hippler’s order Friday was the first of about a dozen outstanding rulings expected following an all-day motions hearing last week to resolve several arguments between prosecutors and Kohberger’s defense about how certain evidence may be used at trial. Hippler previously issued several orders from the bench at the hearing, and said he would provide future written orders on the remaining items.

In several more wins for the prosecution, Hippler also denied a defense request to allow an expert to testify about Kohberger’s autism diagnosis and the ways it may affect his courtroom behavior. And he allowed some testimony from an Idaho State Police crime lab expert that the defense had hoped to block.

Kohberger, 30, is accused of fatally stabbing four UI students in Moscow in November 2022. At the time, he was a graduate student of criminal justice and criminology at Washington State University in Pullman, located about 9 miles west of Moscow across the Idaho state line.

The victims were Kaylee Goncalves, 21, of Rathdrum; Madison Mogen, 21, of Coeur d’Alene; Xana Kernodle, 20, of Post Falls; and Ethan Chapin, 20, of Mount Vernon, Washington. The three women lived at the off-campus home with the other two female roommates, while Chapin was Kernodle’s boyfriend and slept over for the night.

Kohberger’s murder trial is scheduled to begin with jury selection in late July. Prosecutors intend to seek the death penalty if he is convicted of the murders.

Defense can’t use testimony on Kohberger’s behavior

Despite opposition from Kohberger’s attorneys, Hippler ruled against a request to allow the defense to present expert testimony to explain how its client’s autism spectrum disorder could affect his physical demeanor during the trial. Attorneys, however, will still be allowed to question prospective jurors about their potential bias against behavior associated with his diagnosis.

Hippler concluded in another Friday order that jurors will be instructed on what evidence to consider in determining guilt or innocence, and that Kohberger’s demeanor during trial is not one of the aspects they’re allowed to consider. If Kohberger decides to testify, evidence about his behavior could become relevant, Hippler wrote.

Since publicizing their client’s autism spectrum disorder diagnosis, Kohberger’s attorneys have argued that the jury’s bias against his physical characteristics and behavior might impact Kohberger’s right to a fair trial. Several experts interviewed by the Idaho Statesman echoed the defense’s concerns and said Kohberger’s developmental disability could affect how the jurors perceive him.

“I think the risk, of course, is if he presents as sort of being emotionless, and not responding to some of the testimony in a way that would reflect empathy, that the jurors would hold it against him,” Daniel Medwed, a law and criminal justice professor at Northeastern University in Boston, said in an interview.

Hippler said he’s “not blind to the fact that the jury will be scrutinizing” Kohberger’s behavior during the trial. But he said that allowing testimony about the defendant’s autism amounts to an endorsement by the court of improper evidence.

Introducing the evidence “risks confusing the issues,” the 4th District judge added. Presenting Kohberger’s autism diagnosis could also mislead the jurors, waste time or possibly unfairly prejudice both the defense and prosecution, he said.

To allow it “essentially invites the jury” to consider Kohberger’s character to determine guilt, which isn’t allowed and could risk playing into jurors’ sympathies.

“If anything, presenting evidence of defendant’s (autism) will focus the jurors even more on defendant’s behaviors that they likely would not have noticed in the first place,” Hippler wrote.

Hippler’s ruling fell in line with the prosecution’s argument during last week’s hearing. Latah County Prosecutor Bill Thompson told the court there wasn’t any authority to allow expert testimony during jury selection about Kohberger’s developmental disability and the ways it might affect his behavior in the courtroom.

“It’s irrelevant to any of the factual issues in this case. It’s irrelevant to the elements of the offense,” Thompson said. “Frankly, all it does is confuse and tries to play the sympathies of the jury.”

Hippler, however, said he’d reserve ruling on whether to allow expert testimony regarding Kohberger’s obsessive-compulsive disorder.

That is in case the prosecution introduces any evidence, including Kohberger’s compulsive hand-washing, or his need to wear gloves to avoid germs, according to the order.

Expert can testify about knife sheath DNA transfer

Friday’s rulings also solidified two other requests from the defense, including allowing Rylene Nowlin, a manager at Idaho State Police crime lab, to testify about the transfer of DNA.

Defense attorney Bicka Barlow, who previously worked as a public defender in San Francisco, asked Hippler to exclude Nowlin from testifying about how DNA may have landed on a knife sheath investigators found next to a victim’s body.

“There is really no way for a particular analyst in a particular lab to determine how and when DNA was placed on an object when you don’t have any facts behind it,” Barlow told the court last week.

“In other words, unless you see something or you know something, you have facts of the method of transfer, it’s not possible.”

According to prosecutors, Kohberger’s attorneys have said in other filings that “there is good support” their client’s DNA was found on the knife sheath, and might have been planted.

Hippler disagreed. He said Nowlin can testify based on expertise that it’s “more likely” that the DNA sample was directly transferred to the sheath than not.

“The fact that she admittedly cannot render a ‘conclusive’ opinion about how the DNA arrived on the knife sheath and that it is ‘possible’ it was through secondary transfer does not render her opinion inadmissible; it is simply an acknowledged limit to her opinion,” he wrote.

Hippler indicated during last week’s hearing that he wouldn’t bar Nowlin from using the term “touch DNA” but asked prosecutors and the defense to avoid using the word as much as possible.

The defense raised concerns that using the term would insinuate Kohberger physically touched the knife sheath.

“I’m not going to try to police the experts within their own field who use that term as part of their expertise,” Hippler said last week.

Also Friday, the judge denied the defense’s other request to prohibit the prosecution from asserting that a white vehicle seen in several surveillance video footage is the same vehicle, or that it was Kohberger’s Hyundai Elantra.

While it would be “speculative” and “improper” for the prosecution to contend that vehicles are all the same, Hippler wrote, it doesn’t stop them from using an expert witness to draw that conclusion. Investigators are allowed to use their observations and inferences about the car’s alleged travel route to decide whether the vehicle seen near the off-campus home and another Moscow neighborhood are the same, which police labeled “suspect vehicle 1.”

“The jury is free to weigh this evidence and the investigators’ testimony against that offered by defendant and decide for itself what the surveillance videos depict and whether it supports its ultimate conclusion bearing on (the) defendant’s guilt,” Hippler wrote.

Will Kohberger’s family be allowed in the courtroom?

Earlier this week, Hippler also released an order about whether Kohberger’s family could be allowed into the courtroom for the entirety of the trial.

Typically, witnesses expected to be called to the stand during a jury trial cannot be present during others’ testimony until they have testified themselves – unless they are the victims’ immediate family members.

After the prosecution signaled its intent to call members of Kohberger’s family to testify, the defense asked Hippler to allow them in the courtroom.

One of Kohberger’s attorneys, Elisa Massoth, argued during the hearing that Kohberger’s family needs to be in the courtroom to support him, and asked Hippler to use a “level of humanity” and his discretion to permit them into the courtroom as soon as possible.

Hippler agreed that Kohberger’s parents and siblings shouldn’t be punished for the alleged actions of their son or brother.

Given the length and publicity of the trial, he suggested a way to alleviate concerns would be for the witnesses to be called out of order from the prosecution’s plan.

With a three-month trial scheduled, the court “won’t be held hostage” by either side’s ideal case narrative, he said.

“This is like a gumbo,” Hippler told prosecutors last week. “You’re going to put all the pieces that go into the pot, and at the end of the day, the jury is going to decide whether it’s a good soup or not.”

He issued a written order on Wednesday asking prosecutors to submit to him by Friday a list of Kohberger’s family members they intend to call at trial and the purpose for calling them. The state has to explain why the family member can’t be called earlier in the proceedings.

He’ll decide on Kohberger’s family’s access to the trial by another hearing scheduled for May 15.

“The court understands and empathizes with the concerns that parents, themselves having done nothing wrong, would have and the trauma they would endure because of a child being accused of and tried for capital homicide and their desire to be present for their child,” Hippler said.

Other rulings remain outstanding, including about how much of the audio from a 911 call the surviving roommates placed may be played for jurors, and two recent efforts by the defense to remove the death penalty as a possible sentencing option.