Ever try dodging a bullet? That’s a challenge, all right.
But suppose you need to dodge five bullets. And each of the five shooters has a long gun aimed straight at your heart. Oh, and you’re strapped tight to a chair, to boot.
But that’s how things could roll in Idaho in a death penalty case.
Don’t like the odds? Then there’s only one way out: make damn sure they never get you into that chair.
So your lawyers think, and think, and think. Until—
They stumble onto something. A loophole.
And now, if the chips fall your way, it’s a blindfolded Lady Justice who’s thrashing in the chair, unable to wiggle free. And you’re heading out the door, having the last laugh.
It’s been a busy summer for Bryan Kohberger’s defense team. With the trial at last scheduled for next June, this might have been the season to hunker down in preparation for the life-and-death courtroom battle that loomed. A fortifying period of calm before the inevitable storm.
It’s been nearly two years since their client’s arrest for the stabbing murders of four University of Idaho students. Yet time has not dispelled the advocates’ zeal, nor their commitment to process. And so at the tail end of July, after a flurry of court appearances where they never missed an opportunity to dutifully espouse their belief in Kohberger’s innocence, they filed a 300-plus-page motion arguing that their client’s constitutional right to an impartial jury would be an impossibility if the trial were to play out in the small Idaho college town where the savage murders occurred. Instead, they wanted the proceedings moved to Boise, the capital city in the state’s most populous—the comparison being relative, of course—county.
In response, the prosecution has forcefully argued that it would not prejudice the case if the trial were to remain at the courthouse in Moscow, just a short jog from the victims’ house, on King Road. It would be impossible, they stated, to find any county in the state whose citizens were not aware of the events.
This past Thursday, Judge John Judge heard the combatants’ oral arguments as well as testimony from several expert witnesses who, having already fortified the defense’s motion with an armory of bewildering charts and numbing statistics, pontificated with erudite academic authority about the imagined mindsets of the potential jurors. And at the conclusion of the nearly six-hour hearing, we are still waiting for the judge’s decision: Should the trial stay or go?
The Redoubt
“I would say this is probably, professionally, the most difficult decision I’ve ever had to make,” the judge agonized. “There was some really important things to think about [from] both sides.”
Nevertheless, there is a good deal in the defense’s motion and oral arguments that, at least to this observer, seemed likely to strike the even-keeled judge as fatuous, cynical, and plain wrongheaded.
Consider the desperate attempt to wring nefarious significance out of the Moscow police department’s many public statements on the case (a thick pile of the actual postings was included in the motion, I suspect, to add heft to an otherwise thin argument) during the nearly seven weeks while the hunt for the suspect was still underway. If the premise is that the police reports—much-needed updates for a grieving and frightened community—somehow cemented the locals’ prejudice against a still-unknown suspect, well, the logic escapes me.
Then, there’s the claim that news articles, books, and Internet posts consistently spread untruths about the murders. However, if the defense were so deeply committed to getting the actual facts out to the public, then why had it also been gung-ho in its support of a gag order? If law enforcement and legal authorities are prohibited from sharing their insider knowledge with the press, what did the defense believe would fill this vacuum?
In fact, it’s an inconvenient truth that the defense has done its own part to spread misinformation: the telephone surveys of prospective Moscow jurors conducted by their representatives, for example, asked about Kohberger’s stalking when the defense was well aware that there was no evidence of any interaction—in person or online—between the suspect and the murdered students.
But arguably the most misleading parts of the motion is the description of Latah County as “a nice, quaint close-knit community that sticks together.” If only that were the case. The Moscow I have come to know seethes with barely repressed tensions. It’s a town where a liberal university that wears the happy distinction of being voted “the number one party school in the state” is locked in constant conflict with a dominant church group set on turning the town into “a theocracy,” the Christian capital city of the Redoubt, as the new, fiercely conservative American frontier has been christened. “No ifs, ands, or buts,” a local lawyer told me, “there’s a civil war getting ready to erupt in the streets of Moscow.”
The head of this church, Pastor Doug Wilson, has made it clear that he’d advise any of his parishioners serving on the jury to approach this responsibility with an “open mind.” Particularly if a Moscow cop were to testify against Kohberger. “After all, we know that their officers have lied on the stand before,” he explained, referring to cases involving church members who protested the town’s pandemic restrictions. So much, then, for the defense’s homilies about a “close-knit community that sticks together” and has already made up its collective mind to convict their client.
But at this hanging moment in the case, it’s still very much a political affair, and one that is being followed with considerable interest in Idaho’s corridors of power. It’s my guess, therefore, that while the details of the defense’s argument are specious, its premise will go down well with the easy-going Judge Judge.
He seems determined not to rock any boats, or, more consequentially, to provide the defense with fodder for an appeal. I suspect he will rule to move the trial to the bigger (again, everything is relative) stage offered by the stolidly monumental Boise courthouse. As a consequence, the jury will be empaneled from the 520,000 residents of Ada County, a population about 10 times larger than Moscow’s.
“No ifs, ands, or buts,” a local lawyer told me, “there’s a civil war getting ready to erupt in the streets of Moscow.”
Only here’s the thing: it quite possibly won’t matter.
Because despite all the noise from the constant rat-a-tat of defense motions, despite their fighting tooth and nail on every procedural issue, it’s all been smoke. Sources knowledgeable of the defense’s machinations say it’s been a distraction strategy. Kohberger’s team has been shrewdly manufacturing diversions, deft sleights of legal hand designed to keep the opposition’s eyes off their impending attack.
And if it all plays out according to plan, their client won’t need to produce an impregnable alibi. It will be of little consequence that the explanation Kohberger finally shared with the court after more than a year behind bars—he had gone to ground in a wilderness park at four a.m. on the frosty, cloudy pre-dawn morning to gaze contemplatively at the stars when the murders occurred—might strike some as a contrivance as persuasive as the old tale of the ill-behaved dog who devoured the diligent scholar’s homework.
Then, too, the testimony of well-credentialed expert witnesses regarding the validity of, say, DNA evidence or the cell-phone-tower triangulations—well, that will also become an irrelevant bit of theater.
And it will be of little consequence whether the jurors enter the deliberations with minds that are pristine tabula rasas or raging with prejudices and preconceived notions.
Cold and Hot Cases
There were two seemingly unrelated events that led me to what I believe may prove to be the defense’s grand design.
The first took place with little fanfare in the Moscow courthouse just six months after Kohberger’s early-morning arrest at his parents’ home across the country in the Pennsylvania hills. Up to that moment, the prosecution had been offering only the scant evidence in the probable-cause affidavit—surveillance footage that seemed to have caught Kohberger’s car leaving the scene of the crime and potentially incriminating cell-phone-tower triangulation data—to explain how the authorities had, after nearly seven long weeks, finally zeroed in on the suspect. And, sure, DNA evidence was also mentioned, but forensic science only came into play after the authorities had rigorously built their case the old-fashioned way. It was merely the icing on the cake.
Only that simply wasn’t true, as the prosecution finally admitted. Bill Thompson, the Latah County prosecutor famous in Moscow as much for his record of convictions as for his flowing white biblical beard, conceded for the first time last February that, well, maybe cracking the case was not so cut-and-dried. In fact, DNA—specifically the DNA found on the button snap of the knife sheath left tangled in the sheets in the third-floor bedroom where two of the victims had been slaughtered—had been instrumental in pointing the way to Kohberger from the start.
The details, it would later be learned, were as follows. Matthew Gamette, the director of the Idaho state forensics lab, had sent that minuscule bit of “touch DNA”—a cluster of cells smaller than a speck of floating dust and a whole lot less substantial—to Othram, a small Texas start-up lab. The state already had a contract with the firm to use its investigative-genetic-genealogy (I.G.G.) techniques to solve cold cases.
In one unsolved mystery after another, the ingenious Othram technicians had, against all odds, produced DNA profiles from evidence found in long-buried files so that it could now be uploaded to public genealogy sites to look for a match. Gamette’s game-changing insight was that the genetic profiles produced by I.G.G. could also be used to identify suspects in red-hot cases—such as the Idaho student murders.
And Othram quickly performed its technical magic, producing a profile from the DNA found on the button of the knife sheath.
But then the F.B.I. stepped in, insisting that the bureau’s forensic genealogists take over. The DNA was sent from Texas to the F.B.I.’s Quantico, Virginia, facility. Here the federal techies tried to build out a family tree whose limbs would stretch to the killer. But law enforcement only has access to a few comparatively small genetic sites, which in this case failed to produce a match; Ancestry.com and 23andMe, private businesses with a much larger inventory, prohibit the authorities from dipping into their pools of genetic information. It wasn’t until weeks later, prodded by the surveillance videos, that law enforcement surreptitiously collected DNA from Kohberger’s father. And this—presto!—tied the DNA on the knife sheath to Bryan Kohberger.
Sources knowledgeable of the defense’s strategy say Kohberger’s team has been shrewdly manufacturing diversions, deft sleights of legal hand designed to keep the opposition’s eyes off their impending attack.
If that bit of deduction sounds vague, it’s because it is—and that seems to be how the prosecution wants to keep things. Thompson maintains that the state is not required to reveal how it specifically used the DNA evidence to identify the suspect. “The IGG process pointed law enforcement toward [Kohberger],” Thompson argued in a court filing, “but it did not provide law enforcement with substantive evidence of guilt. The IGG information is not material to the preparation of the defense.”
The defense, however, demanded to see, in effect, how the investigative sausage was made. “I’m concerned about … the state’s pathway of how Bryan Kohberger comes to their attention and is identified,” defense attorney Anne Taylor challenged in an oral argument before the court last winter demanding the release of the F.B.I.’s I.G.G. records. “Over a year into this case and … we’re not sure. I know different pieces, but I don’t know where they fit together.”
This was the mobilizing salvo in a hard-fought eight-month-long legal battle over whether the government would release the I.G.G. records to the defense. Last February, Judge Judge ruled that the defense was allowed to review some of the requested records.
The precise contents of this windfall remain sealed to the public. But what is clear is that from the start the defense had been convinced the prosecution was deliberately concealing something about the I.G.G. process. And now, I’m told, they think they know why.
What’s in a Date?
Early on in my reporting about this case, I had been authoritatively informed that the F.B.I. had been onto Kohberger as “a person of interest” as early as December 11, 2022—more than two weeks before his arrest. The official timeline, though, was a whole lot different. As The New York Times reported, “By the morning of Dec. 19, records show, investigators had a name: Bryan Kohberger.”
Digging further, I learned that the F.B.I. had the suspect and his father under surveillance as they drove cross-country from Washington State to Pennsylvania for the Christmas holidays. That trip began on December 12—a full week before the bureau said they had Kohberger in their sights.
At the time, I speculated that the Feds had their reasons for not revealing their surveillance op even to the Moscow police task force. Perhaps they were still not certain they had the right man and didn’t want to influence the task force’s investigation. Or maybe they feared a sly defense attorney might charge that the local police, influenced by the bureau’s deductions, had tailored the evidence to fit the suspect.
Yet there was also the more cynical possibility that the F.B.I.’s secrecy was motivated by pure self-interest. Cracking this case would be a triumph, and the Feds were unwilling to share the glory. An arrest offered the chance to polish a politically tarnished reputation.
But even as I was still caught up in wondering why the F.B.I. had kept mum about its surveillance of the Kohbergers as they had made their way across the country, I was blindsided by its vehement response to my reporting. Rather than the standard pablum—”It’s Justice Department policy not to discuss an ongoing case”—the F.B.I. issued a statement asserting that not only were their agents not following the Kohbergers across the country, but at that point in the investigation they had not even managed to identify a suspect.
And yet by then, other knowledgeable voices had chimed in to corroborate the alternate timeline. Andrew McCabe, former deputy director of the F.B.I., went on CNN to reveal that Kohberger was on the “radar” of investigators before he left Washington State and headed off on his cross-country journey. “It’s an incredibly complicated, well-choreographed ballet … of surveillance efforts that would cross multiple F.B.I. field divisions,” he stated. Nevertheless, the bureau continued to stick to its guns.
“I’m concerned about … the state’s pathway of how Bryan Kohberger comes to their attention and is identified,” Taylor challenged. “Over a year into this case and … we’re not sure. I know different pieces, but I don’t know where they fit together.”
Why such vehemence? I wondered. And then I had it: the case’s timeline. Precisely when and how the bureau put the pieces of the puzzle together mattered quite a lot.
As it happened, this was also the crucial issue the Kohberger defense had been pursuing. And this was the gold seam that Taylor had hoped the I.G.G. discovery information would reveal.
The future of this case—possibly even whether Kohberger leaves the courtroom a free man or a dead man walking—hangs on the timeline.
According to the public affidavit released at the time of Kohberger’s arrest, it wasn’t until December 28 that the authorities at last hit pay dirt. After Pennsylvania State troopers had made off in the dead of night with garbage from the Kohberger family home, a link to the suspect was conclusively made. The DNA found in the detritus belonged with a 99.9998 percent certainty to the father of the man whose DNA was on the knife sheath. In that indisputable way, the father had branded his son a killer. And the authorities at last had their man.
Only what if the bureau had identified Kohberger earlier than they’ve admitted? What if they’d been able to make this discovery because the bureau’s genetic technicians had played fast and loose with the rules? And what if, driven by their zeal to find the monster who had savagely hacked four young students to death, they had ventured into legally protected genetic sites to gather the material that allowed them to construct the family DNA clusters that pointed the way to a grad student at a nearby university who drove a similar white car to the vehicle that had been observed at the murder scene?
Such a scenario would allow the defense to argue that Bryan Kohberger’s Fourth Amendment rights had been violated, along with the rights of any of his relatives who had shared their genetic material with the expectation of privacy.
In short, it would set in motion the legal maneuverings that could get the entire case thrown out.
Yet, for now, before the history of the Bryan Kohberger case can be re-written, the defense must hastily muster up a new army of crucial facts and arguments: the initial motions to strike the death penalty are due in early September.
Howard Blum is the author of several best-selling books, including the Edgar Award–winning American Lightning: Terror, Mystery, the Birth of Hollywood, and the Crime of the Century. His latest, When the Night Comes Falling: A Requiem for the Idaho Student Murders, is available now
