The University of Idaho Murders: Amazon Orders and Eyebrows

[00:00:00] Content warning this episode contains discussion of murder and violence. So last week there was a bunch of filings in the Idaho case and by a bunch that's a legal term for a whole lot. We're going to try to get through as much as we can in one episode, but I'm going to be honest with you, I don't see us getting through all this in one episode.

[00:00:27] So it's very likely we'll end up doing a second episode and some of the other filings later on this week because there's a lot to chew on here. Anyway, that let's get to it. My name is Anya Kane. I'm a journalist. And I'm Kevin Greenlee. I'm an attorney. And this is The Murder Sheet. We're a true crime podcast focused on original reporting, interviews and deep dives into murder cases. We're The Murder Sheet.

[00:00:54] And this is The University of Idaho Murders. Amazon Orders and Eyebrows.

[00:01:46] So let's start with one of the bigger filings. I think we could all agree that the most important eyewitness in this case is the young woman who lived at the house and had a brief encounter with the killer. And she described him.

[00:02:09] He was his face was largely covered, but she saw his his eyes and particularly his eyebrows, which she described on numerous occasions as bushy. And as you may or may not recall, the defense filed a motion recently saying what we don't think that testimony should be allowed in. And so now the state has had an opportunity to reply to that. And what were their arguments?

[00:02:39] Well, let's let's talk about them. The first thing to note is that they the state says that the defense wants to use the so-called. The so-called Manson Biggers test to evaluate whether or not this this testimony should be included. That raises the obvious question. What is the Manson Biggers test?

[00:03:08] You better not ask me what that is. So the Manson Biggers test is something that arose out of a couple of United States Supreme Court decisions where the issue was, you know, sometimes the police use methods to get identifications that can be overly suggestive.

[00:03:32] And when that happens and police use these questionable methods, you know, sometimes they still get good results. Sometimes they don't get good results. What kind of test should we use to apply whether or not the value of the testimony is such that it should be admitted despite whatever the police might have done that is questionable? And so this is the Manson Biggers test.

[00:03:58] And I'll talk about the five prongs of the Manson Biggers test in a moment. But something in my just in my description there, something may have jumped out at you. Did something jump out at you, Anya? No, not at all. Sorry. Sorry.

[00:04:16] So if police are trying to steer a person to identify a particular person, then that usually happens after they've identified a suspect or perhaps have a suspect in custody. Right. And that's when you use the Manson Biggers test.

[00:04:34] And in this case, the beginning of this filing goes into some detail about each time this witness gave a description of the killer and exactly what she said on each occasion. And the vast majority of these descriptions she gave occurred before the arrest of Mr. Kohlberger, perhaps before they even knew Kohlberger's name or anything about him. Okay. Wow.

[00:05:00] So that is a pretty big difference because there's the difference of if Brian Kohlberger is in lockup and they're thinking we really need to get him, that can motivate things in a different way and be more problematic than we don't know who did this. We're just trying to figure it out. And so this test is only this Manson Briggs test. This is something that's only used if you are questioning the identification methods used by the police.

[00:05:29] And here the police were just saying, what did you see, basically? And they weren't trying to steer her towards anyone at all. So the state says this test, it doesn't even apply. Manson Briggs sounds like some kind of personality test for serial killers. I think it's Manson Biggers, right? It is Manson Biggers. Sorry to call you out. I just didn't want people yelling at us about that. Did I say Briggs? You said Briggs. Sorry about that. Manson Briggs. But no, I mean, that's a really good point.

[00:05:56] So do we know for sure that Kohlberger was not on the radar at this point? That's what they say in this filing. They go through her description start almost immediately. Kohlberger didn't even come on the radar until much later in the game. Okay. So it just, that seems pretty self-evident then. So then Manson Biggers, thank you for the correction, doesn't seem to apply.

[00:06:23] But what lawyers do is they try to cover all bases. So the state goes on to say, well, even if Manson Biggers does apply, this should still be admitted because it would still pass each prong of the balancing test of Manson Biggers. So let's look at those different prongs.

[00:06:52] The first prong is, did the witness in question have a good opportunity to view the suspect? And in this case, the witness says she was only about three feet away from the killer. And so she was able to see him well enough. She could tell what he was wearing and that he was even holding something.

[00:07:21] So yeah, that's a, I mean, that's a pretty decent sighting. Obviously the man is allegedly wearing a mask, so she's not able to get a lot of details about his face. But when we're just talking about basically running almost straight into this mysterious intruder, I mean, she had a pretty good witness sighting from that perspective. And then the second prong is, was the witness paying attention?

[00:07:48] What was the degree of attention, in other words? And in this particular case, again, she was only able to see his eyes and his nose. And so she was focused on that. She even said at one point, quote, that's all I could think about it. That's all I could think about. So it does seem to be pretty consistent that she was indeed paying close attention to that. Yeah.

[00:08:17] Can I also just say one, can I just jump in with my PSA for all these episodes we do? I still see so much suspicion directed at the roommates for not calling 911 right away. And I just, like, I'm just begging people, let's just have some empathy for a situation. We're all true crime people. We're paranoid about stuff. If we saw a guy in this situation, maybe we would have called the police right away.

[00:08:42] But when you're in college and you have a house with multiple roommates and there's some weird guy around, the thing that my mind would go to is, oh, somebody was entertaining a gentleman friend. Okay, there was a gentleman caller. Is it weird he's wearing a mask? Yes, but I don't know. People, sometimes people do when it's cold out. I don't, I guess I would just, like, not, your mind wouldn't necessarily go to everyone has been murdered. Yeah, that's very important.

[00:09:09] And right now, you and I certainly would call someone because we live alone. Yeah, if there's a masked man in our house and it's not Kevin, something ain't right. And we're probably going to get murdered. But I think if, you know, but if you're in a house with multiple people, you might be like, well, someone hooked up with a weird dude. And do you want to be the person at 4 a.m. to have the police kick down your door? Like, there's a level of, like, socialization here, especially with, like, young people, young girls.

[00:09:38] You know, there's an idea that, like, you know, you don't want to be embarrassed. You don't want to be the person who, like, has the SWAT team breaking down your door because someone, like, had a hookup that decided to wear a ski mask because that's what he does. You know, like, that's not – I can understand being in that situation. It's late at night or early in the morning, rather, and just being kind of concerned but not enough to take action on it.

[00:10:02] And I imagine that's something that people, you know, that these roommates may regret or they've certainly gotten hounded for it. But I don't think – I think we need to kind of open our minds to people doing things differently than us because of different circumstances, different ages, different levels of experience, different levels of concern. And we need to be open to that. Like, not – maybe the right thing to do in this situation would be to call 911 right away, right? But hindsight is 20-20. These are very young people.

[00:10:31] These are people living in a group situation. These are people in college where people might be coming and going. And to me, it just kind of gets into, like, people are not always going to behave in the way that we find perfect. And really the only person whose behavior really merits criticism that night is the killer. The murderer, yeah. And I think it's also worth noting that even if these witnesses had called 911 immediately, it wouldn't have changed a thing.

[00:10:58] I think in true crime there's some people who tend to be, like, heat-seeking missiles but for, like, blaming people other than the killer. It's like, okay, so someone brutally murdered four people. But who else can we kind of criticize here? It's like I don't understand the impulse there. I think I do. I think part of it is murder and crime is scary. And we do not want to think we could be vulnerable to it.

[00:11:27] And so if we look at something happened that was bad and terrible, we don't want to think that could happen to us. And so we like to think, oh, maybe one of the victims did something wrong and brought it on themselves. And I won't make that mistake. Therefore, I'm safe. And so I think that is part of the impulse people have when they victim-blind.

[00:11:50] I also think there's an element of we've all been raised on the classic Law & Order, the classic CSI. Our brains are polluted by fictional depictions of criminal investigations and cases that are super fun to watch and enjoyable but really kind of tend to make us overemphasize the idea of the twist. In a Law & Order episode, just from what I mean, I watch that show religiously at times, it's one of those things where it's never the obvious suspect.

[00:12:20] In life, it's usually the obvious suspect. But that's boring television. You want to have it be like, oh, we all thought it was this creepy guy, but it was actually the victim's husband. Ooh, he had a motive we didn't know about. Now we're switching things up. And I think people kind of – I think that seeps into the culture and it seeps into how people who watch those shows are often people who are interested in true crime. And then it can make them expect more from a case. But you have to go where the evidence is based, unlike with fiction.

[00:12:47] And fiction, you can just make it up to make it as cool or interesting as possible. With this stuff, you know, I kind of feel in the Law & Order episode, there would be some twist with the roommates. And people are almost expecting that. So they're like, well, they're picking apart everything they're doing and saying. And I think that's not helpful when we're talking about nonfiction, in my opinion. And I understand it because it's like, you know, that's how we're kind of experiencing it as a story. But we just have to remember that it's really – it's real life. And we're talking about these young women.

[00:13:15] And I see people tearing them apart online. And I just – I don't think that's okay. I think we can redirect some of that concern maybe with conversations with people we know in college or young people and saying, hey, if you get that uneasy feeling, listen to your instincts. Maybe get help right away even if it might be embarrassing later. I think that can be a helpful conversation. Maybe we can redirect it into that. But I don't think we need to kind of like say they're suspicious because they didn't do what I would do. Right.

[00:13:42] So to get back to this test, the next prong is the accuracy of the description. And I'm going to read directly from the document. Quote, Kohlberger matches DM's descriptions. Male, white, skinny, athletic build. A few inches taller than DM. Not someone she knew and had bushy eyebrows. End quote.

[00:14:04] Quote, they also write, quote, the state intends to introduce a photograph of Brian Kohlberger taken from his phone on November 13, 2022, only hours after the homicides at 1031 a.m. Whether or not Brian Kohlberger can be described as having bushy eyebrows is a factual determination to be decided by the jury. End quote.

[00:14:25] So that's why you've probably seen some of the news coverage, this selfie of Brian Kohlberger, and it is going to be introduced by the state so the jury can say, OK, this is how Kohlberger looked on the day of the murders. Does he have bushy eyebrows in this picture or does he not? Does he match this description or does he not? Was there anything else you wanted to say about that selfie?

[00:14:52] Let's talk about one of our favorite people who also happens to do one of our favorite podcasts. Obviously, I'm talking about Jason Blair and his show, The Silver Linings Handbook. You probably recognize Jason's name because we've been on his show and he's been on ours to talk about true crime ethics and the media. He's always got thoughtful insights to share. Plus, he's got all kinds of ideas on how to make true crime a more respectful and compassionate space.

[00:15:19] The Silver Linings Handbook is a weekly podcast that's totally interview centric. So you get to hear Jason's in-depth conversations with all kinds of inspiring people. You'll hear discussions about well-being, mental health, the law and the criminal justice system, true crime, religion and marginalized communities and just about everything in between. For all you true crime fans, he's had on the hosts of The Prosecutors, The Consult and yours truly.

[00:15:44] Jason is a wonderful person with a seemingly endless well of compassion and empathy for others. That serves him quite well as an interviewer. We were really gripped by his recent conversations with the daughter of a murdered police detective, the sister of a missing native woman in Montana and Gabby Petito's father. These were all humanistic and in-depth talks that got to the heart of topics like grief, advocacy and abuse. We've always enjoyed our conversations with Jason on The Silver Linings Handbook and behind the scenes.

[00:16:14] Getting to listen to his show is a bit like dropping by for one of those talks. Subscribe to The Silver Linings Handbook wherever you listen to podcasts. Well, you know, I don't. You have to understand, like in crime cases, the media. I think it's interesting that a lot of the media reports have centered the selfie. And the reason for that is just it's interesting. You know, people like to look at images of other people.

[00:16:40] You know, I remember when I was at Insider, if I popped in the thumbnail, a picture of like a tree or a location. Those stories would always do worse than if I popped in a picture of some people talking. We're humans. We're social animals. We want to see the faces. So when we say, ooh, there's a selfie, then kind of everyone gets really interested in that. And that's understandable. That's just how we're programmed. And the media gets really interested in that because they know you're going to click on that. You know, I don't know the context of him taking the selfie, obviously.

[00:17:09] I mean, he's innocent until proven guilty. I've seen people say it's a creepy selfie. It's weird. But I don't know. I mean, I'm not going to necessarily like judge it. But I think it certainly and I and I speak I speak as somebody with insane eyebrows myself. This is not a criticism. I'm part of that community. I'm part of the crazy eyebrows community. But I'd say he does have he does have big bushy eyebrows. So, I mean, it's certainly it's certainly in this image.

[00:17:36] And so it certainly backs up that he would have had that, you know, that day. He didn't he hadn't had them, you know, restyled or they haven't grown out recently. They're, you know, they're they're big. And again, not not a criticism, because if you've ever run into me, probably been like, wow, that's crazy eyebrows. But so the only reason the picture is being introduced is this is what he looked like right after the crime. Does the jury think this is consistent with the description that the witness saw? Yeah.

[00:18:06] And I think what what people then, though, I think what people I think people like to go beyond that because you're exactly right. That's the that's exactly why this is coming up. But people like to kind of be like, like, why is he taking a selfie? Like, you know, at this time, like, is he commemorating a crime if they think he's guilty or like what's going on here? And and I think, you know, I think that's fair. I think there's like a level of speculation conversation that can certainly happen about that in a responsible way.

[00:18:31] But I think it is important to stress that it's not the prosecution being like, isn't this creepy? It's just more of like, look, this is what his eyebrows literally looked like on this date. The next prong of this test, Manson Biggers, is how certain is the witness? And in this case, our read directly from the document, quote, DM texted BF a description immediately after her observation.

[00:19:00] She was interviewed on five separate occasions and she provided grand jury testimony. DM without fail gave the same description, which in and of itself indicates her level of certainty. On November 17th, 2023, she was laid to investigators. She was suffering from trauma and was unsure of what is real or not. DM admitted many times she was probably still intoxicated saying, I don't know if I was still drunk. Probably was. I don't know for sure. I was really asleep.

[00:19:28] I like woke up out of nowhere and I was obviously probably still a little bit drunk. I just woke up. I don't remember fully. Admittedly, DM made statements such as, I believe I was very drunk. I don't know how much of this was real. Like, I don't know if my mind was like doing whatever. I don't know any of it. Like half the stuff. I don't know if it's a dream or not. I just have no clue. But the investigators told DM they only wanted DM to focus on what she knew was true. That's the most important. DM agreed.

[00:19:58] After this, DM provided the same descriptions with absolutely no variance. DM also made it clear the eyebrows of the feature she most clearly remembered. It is evident by the degree of detail she provided about the events leading up, during, and after the crimes that she provided reliable descriptions. End quote. So, to me, that does sound, first of all, very consistent, very reliable.

[00:20:25] But at the same time, it does offer up some reasonable cross-examination areas. Yeah, 100%. I mean, the defense can certainly look at this and say, well, you're drunk. You're tired. You don't know what's going on. They can certainly do something with that. But at the same time, I think it shows a level of candor.

[00:20:43] I mean, like, the worst thing you can – like, if you have someone who's almost, like, too pushy about things, or like, no, I saw it exactly, and I know exactly what I – like, this is somebody who seems like they're admitting the issues. You know, that they're drunk, tired, whatever. I think that's, like, candid. Yeah, I would be very troubled if she wasn't open about those things. Yeah, yeah, exactly.

[00:21:06] And also the drinking also explains the behavior more because, you know, I mean, if we – people who have been drunk in college and late at night you're coming back, something weird happens, maybe your reaction isn't as on the ball as it would have been otherwise or if it happened during the day or if you were not intoxicated at the time. You know, there might be more of an inclination to just be like, well, I hope that's okay. And then, you know, and most of the time it probably would be in this situation. Unfortunately, it wasn't.

[00:21:35] So, you know, I think people – think about the last time you were young, drunk, and in a situation and think if that version of yourself would react perfectly to a mysterious situation like this. I think we just have to engage with some empathy here. And the last thing to consider in this balancing test is the length of time between the crime and the identification.

[00:22:02] And, quote, while there are multiple consistent descriptions, it was not possible for DM to provide an identification because the male was completely covered with only nose and eyes visible, end quote. So, basically, this test is largely designed to apply to actual identifications made by witnesses. And this prong doesn't even apply because she didn't even make an identification. She just said, I remember these eyebrows.

[00:22:30] She's not going to get up there and say, I saw Brian Koberger. She's going to get up there and say, I saw a man with this description with bushy eyebrows, and that's what I remember. I was drunk at the time, but, you know, that's the detail that stuck out to me, and that's what I continue to remember. That makes a huge difference. We saw in the Delphi murders trial, none of the eyewitnesses said that they saw Richard Allen. None of them identified Richard Allen. They all said they saw Bridge Guy. So, there's a difference there.

[00:22:56] And then, you know, if the prosecution in this case can prove that Brian Koberger was there through DNA on the knife sheath and other evidence, you know, she doesn't need to necessarily identify him. And so, the state argues, and I think rather persuasively, that, first of all, this test doesn't even apply, but even if it does apply, her testimony should still come in. So, that's my read. What's your read on it? Yeah, that seems pretty reasonable. I mean, it seems like it obviously should come in.

[00:23:24] And I think the defense may have some leeway to kind of go after some of her statements. But, you know, at the same time, I – unless the jury – I think the jury can probably – I mean, it kind of – I guess it depends on the jurors. But I think it's pretty reasonable to say you can be some level of intoxicated and still remember certain things, especially specific details. I think it would be more of a problem if she was saying, I literally saw this specific guy.

[00:23:51] But she's just giving a general description of someone who he happens to match. And near the end, the state writes, DM's description is clear. It is not confusing and therefore will not confuse a jury. The fact that this description may or may not implicate defendant is not a reason to keep this fact in the jury's consideration. It is reasonable to believe the jury will convict the defendant based – or pardon me.

[00:24:17] It is not reasonable to believe the jury will convict the defendant based on the status of his kept or unkempt eyebrows. While this fact is prejudicial, relevant evidence tends to be it is not unfair. So, I mean, is this basically like, yeah, if we just rounded up some random guy who happened to have big eyebrows? You know, but like, no, there's evidence against him specifically. Like, this isn't the case against him.

[00:24:44] In so many criminal cases, it's like an accumulation of small details. And eventually they stack up. This is something that could be added to that pile. No one in their right mind would ever believe Koberger is guilty of quadruple homicide just based on his eyebrows. Yeah. Is that fair to say? Well, I mean, I agree. That's not a reasonable thing.

[00:25:11] It's that that implicates him along with a bunch of other stuff. Should we move on? Yep. So the next issue is the Amazon click activity. And this you will probably recall. The defense doesn't want the state to bring in evidence about what Koberger was doing on Amazon.

[00:25:40] And as we discuss this motion, we will discuss some of the stuff that he was doing on Amazon that the defense is concerned about the jury hearing about. But I thought it's interesting to discuss the state's response to one of the arguments. So there is a rule in courts. It has slightly different names, sometimes in different jurisdictions. But basically it's like the rule of completeness. Yeah.

[00:26:09] Which means that if you're going to admit a statement, you have to admit all of the statement because otherwise it might be misleading and confuse a jury. A silly example would be if Anya said, Kevin is out of town this weekend. I need to look for someone to kill. That sounds bad. But what if she says, what if the complete statement is, I need to look for somebody to kill some time with?

[00:26:39] That's a ridiculous example, but it does illustrate how if you have a statement from a witness or any kind of a statement, and if you're just cherry picking it and you're selectively editing it, it's very easy to create false impressions. Yes. So that is why we have this rule in courts that if you're going to use a statement, then you're going to have to use all of it.

[00:27:04] So one of the defense's arguments is, well, business records, aren't those statements too? And so therefore, if you want to talk about anything he did on Amazon, you have to talk about every single thing he did on Amazon. Oh, gosh. You're rolling your eyes. What do you think is the problem with that argument, if any? I don't know. I'm a lawyer. It just sounds kind of stupid.

[00:27:27] If you have a – I mean, in this case, what's significant about Amazon is the idea that he bought a knife, a knife that might match the sheath found at the crime scene. So – Not only that, but after the murders, he looked for another similar knife and sheath. Right. So – Why would you look for a knife and sheath? Oh, maybe you lost the one you had. That's relevant. We don't need to know about the textbooks he purchased months earlier or whatever or even around the same time.

[00:27:57] I mean, that's not – doesn't seem relevant. But I don't know. I'm not a lawyer, so. That's basically it. And also, the rule – I said this rule of completeness applies to statements. A statement is defined as, quote, an oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion. In quote. That doesn't really sound like browsing on Amazon. No. No, it doesn't. It doesn't really seem to fit the definition.

[00:28:27] It's a real stretch. But, I mean, I get why they're trying. It seems important for the defense to try to remove some of this evidence around Amazon because, frankly, it's damning. So, I mean, I commend the defense team for trying here. I think we have to look at things in this context as, you know, the defense is trying their best to get stuff thrown out that would be bad for their client, and that's their job. That's exactly what we would expect.

[00:28:57] And so, again, it was a purchase of a K-bar knife with sheath before the murders. And then he had click activity indicating a search for a knife with sheath after the murders. So, like replacing the murder. Yeah. Or at least contemplating it.

[00:29:14] And so, on your notes, it wouldn't really seem to be a useful expenditure of the court's time or the jury's time to indicate everything else he looked at on Amazon during that time frame. What's the goal in that situation with lawyers? Is it just kind of trying to do, like, a shiny key? Look over here. Oh, and then he also bought this, like, to bore them to death before they get to the point where it's, like, relevant. That could arguably be it.

[00:29:43] Also, I think if you're a defense lawyer and there's evidence you don't want to get in, you are going to make absolutely every argument you can think of to get it thrown out. Yeah. And if you're going to make including this evidence to be this difficult and say, oh, even the original subpoena didn't cover enough stuff. It was too narrow. We need to look at everything he did.

[00:30:09] You're just trying to cast doubt on the evidence and get it removed because it's damaging to your client. Dilute it. Yeah. Yeah. Yeah, makes sense. And again, that's their job. They're supposed to be basically trying to make it, you know, do everything they can for their client. Exactly what we would expect. The state goes on to note that Brian Kohlberger's Amazon.com click activity is relevant and admissible.

[00:30:38] Uh, quote, under Idaho, under Idaho rule of evidence for one evidence is relevant. If it has the tendency to make a fact more or less probable than it would be without the evidence and the fact of consequences in determining the action. Defendant appears to argue that the evidence of defendants. Amazon click activity is not relevant. That is not the case. A K bar knife sheath with a USMC logo was found next to one of the victims.

[00:31:07] The defendant's DNA was found on the K bar knife sheath found on scene applying the test for relevancy. First, uh, Kohlberger's click activity, which shows a purchase of a K bar knife and sheath before the homicide makes it more probable. There would be without the evidence that the K bar sheath found in the crime scene was Brian Kohlberger's. Second, Kohlberger's click activity after the homicide makes it more probable than it would be without the evidence.

[00:31:32] The Kohlberger had a reason to search for a K bar knife and sheath after the homicides, end quote. Yeah. So it seems very relevant. It really seems to add to the, uh, stack of circumstantial evidence, uh, against Mr. Kohlberger. Fair. Yeah. I mean, that, that's pretty accurate. So I guess the next filing.

[00:31:58] So the, the next filing is, uh, defendant's response to state's motion in limine, uh, regarding neuropsychological and psychiatric evidence. So this, uh, applies, uh, not just to autism, but also to obsessive compulsive disorder or, uh, OCD. Okay.

[00:32:24] So there's, that's, those are two diagnoses that Brian Kohlberger has. Yes. And the, the defense, as we've discussed before, uh, they are concerned that when the jurors are seated, they will be looking at Mr. Kohlberger and they will be passing judgment on him based, uh, upon how he reacts physically to certain things.

[00:32:53] Okay. Okay. So because of this, they, they want to have, uh, an expert testify, not just to autism spectrum disorder, but also to obsessive compulsive disorder. And they also claim that Mr. Kohlberger has developmental coordination disorder. And they, and the defense feels we need to get this evidence in. So the jury, when they look at him, they can evaluate it.

[00:33:22] So here's, uh, the complicating factor regarding autism is autism is generally regarded as a, as a mental condition, like a, a neurological condition. And there are certain rules for mental health testimony.

[00:33:43] Namely, you don't really get to testify about a person's mental health issues, unless those mental health issues are relevant to the commission of the crime. So if a person has a mental disorder or a mental condition that in no way impacts the crime with which they are charged with, then why even talk about it in court? It's not relevant. Does that make sense?

[00:34:09] So what would be an example of a, of a condition that would impact a crime? Would that be something where someone is suffering from delusions and, and that prompted them to act in the way? Like, then can you talk about it or like? Yeah. If it's directly relevant, if I, if I believe I need to kill aliens and I have some sort of mental disorder that I believe I'm the only person that can identify aliens, I'm going around shooting these aliens.

[00:34:39] And I, but that'd be like schizophrenia or something. I don't know. Yeah. But by all means testify about that. That's fine. Well, okay. I'm actually going to come on the defense side on this one. I'm just, I don't know what the court rules are. I'm not, again, not a lawyer, but I do feel that I think there's a, a benefit for this for jurors who may not be familiar with people who may have some of these things.

[00:35:03] Like I, I, I don't think, I, I think this would be, I think this would be fair to, to have someone come up and say autistic people tend to do this. And so if you're seeing that, it's not him being like suspicious. It's just, he has autism. That's it. Or he has OCD or whatever. I, I don't, I don't have a problem with that. I think that would actually be, I think that would make things a bit more equitable for people in, in the, you know, with, with people who are neurodivergent, you know, people who are neuroatypical.

[00:35:32] Bring in someone to say, hey, let's take that off the table. He's not making eye contact. That's kind of what he does. You know, that, that, that, that shouldn't go into your reflection either way. So I understand that the law is what it is, but I tend to think things like that might be helpful going forward as, you know, just to raise awareness that people may have different reactions and that that shouldn't. Let's look at the evidence and let's not look at his body language. We shouldn't be doing that. You know, people are human.

[00:36:02] People look for things like that when they're evaluating someone. I understand that. That's, I think a lot of people have that instinct. I'm sure if I was in a jury and I was seeing someone behave in a way that I found odd, I, I mean, I would try not to let that dictate what I was going to do, but we're human and we're picking up these, these cues or social cues or lack thereof.

[00:36:23] But I think having an expert come in and say, let's set that aside would be helpful and would be fair to people in this situation, fair to autistic people, more fair to people with OCD. With OCD, I thought that was interesting, but the gloves. Did you see that? Let's get to that. Oh, yeah. We'll get to that. Let's first talk about autism. I'm jumping ahead.

[00:36:44] So you don't think if the judge or whoever in jury instructions told the jury, don't base your decision based on how Mr. Kohlberger appears or how he behaves in court. Just base it on the testimony and the admissible evidence. You don't think that's good enough? No. Because my, if he doesn't say something about autism or OCD, I'm just going to be like, well, that guy's just a weirdo.

[00:37:11] So yeah, I'm going to like, you know, like, why would he be acting like that in court? Whereas if I'm coming into it with the context of he has these things, he's been diagnosed with autism, he's been diagnosed with OCD. It just fills it. I mean, it just fills in the context a little bit more and it maybe makes me look at specific behaviors in a different light.

[00:37:30] You know, if he's doing something that really looks bad to a neurotypical person, if I'm informed then that that is a direct result of him having OCD or autism, then I can, I think that helps me set it aside more than a general statement from a judge.

[00:37:50] If I'm a juror who's, especially a juror who's not familiar with the, like you might get a jury where, you know, people have people they're related to with autism or OCD and they might be able to kind of be like, okay, actually, that's not really that big a deal. That's what my brother or cousin or whatever does. But if you don't have that or, you know, as we've heard, you know, when you met, you know, someone with autism, you've met one person with autism, you met one autistic person.

[00:38:15] So it's a situation where, I don't know, just I think more information is helpful and it's also not, what they're saying here is it's not about saying in this situation, well, you know, people with autism or autistic people or people with OCD are more violent. It's just saying like this would explain the behavior in court. Is that fair to say? That's their argument. Do you agree with it or do you disagree?

[00:38:43] Well, I'm going to respectfully disagree with you. The rare murder sheet strife on air. I feel that if something is not relevant, there's really no reason to present it in front of the jury. And if you want to say, oh, there's these things in this person's background that makes them different in some way that you need to hear, where does that stop? Right.

[00:39:14] You know, members of the jury, you need to have an expert to come in and hear this person testify. If Kevin seemed a little upset today, it's because he had car trouble. You know, where does it stop? I mean, I think with a like a mental health diagnosis that I mean, like I think if you have a if you have a actual diagnosis from from a medical professional, I think that's where it could stop.

[00:39:42] And I also think it's interesting that one of the things they talk about is that a person with autism might have a lack of remorse. And why would that be relevant if you're saying your client is innocent? Oh, man. Yeah. And the prosecution actually points that out. So there's that, too. Giving away the game here. So to me, a lot of these things would be relevant more in a sentencing hearing.

[00:40:12] That's that's fair. But my question is, can you explain that's not I think some people might be like, oh, gotcha with the defense on that one. Why why would they why would they kind of allude to something like that at this date when they're still saying he's factually innocent? Like why? Why? Can you explain why you'd want to do that? You cover all your bases. Right. Yeah. Basically, you want to preserve things in the record for possible appeals. You just want to cover everything. It's thorough.

[00:40:38] It's not like accidentally putting something I just like because I you know, it sounds horrible, but it makes sense in a legal context. And they're also making the argument that autism is not a neurological. It's not a mental disorder. It's a physical thing because there might be physical components to it. Right. So that's the argument they make about autism. The arguments they make about OCD and developmental coordination disorder are a little bit different.

[00:41:07] And I think those arguments are a little bit stronger. Okay. You alluded to one of the OCD things. Well, yeah. Can you talk about that? The OCD thing struck me as having more to do with the actual crime. And so what I'm specifically talking about is this. The defense says, quote, by way of specific example, the state has continued to claim that Mr. Koberger was wearing gloves on the night of his arrest and placing trash in baggies.

[00:41:37] State asserts that this demonstrates that he had consciousness of guilt and was trying to either hide his DNA or engage in cleaning of his car. This is highly prejudicial and misleading. Mr. Koberger frequently wears gloves to avoid germs on surfaces. He's not cleaning his car on the night of his arrest. He was awake at night, as is typical for him. And he was cleaning his bathroom, end quote. So what they're saying here is you're saying, whoa, he's wearing gloves. It's like he's trying to make sure he doesn't leave any DNA.

[00:42:02] No, he actually normally does that because of his OCD diagnosis that influences his behavior around being concerned about germs. So that's a normal part of his behavior. It doesn't mean anything. It's normal for him, maybe abnormal for other people, but not for him. So that is pretty – that is relevant. So if the state introduces that to the jury, then that would open the door to bring in the defense to be able to say, no, you're misreading it.

[00:42:32] Here's what was actually going on. That seems pretty relevant to me. Yeah, that seems highly relevant. And there's something similar with the developmental coordination disorder that they claim Mr. Kohlberger has. They're saying essentially that he was in not – because of the disorder, he was not in good enough of a shape to actually commit the four homicides in such a short time.

[00:42:55] And that also – if you have a physical condition that you believe makes it impossible for you to do one of the elements of a crime, that obviously seems relevant to be able to bring up. Yeah, I think that's certainly relevant for them to argue. I mean, my – I'm a little skeptical about that one just because, you know, going after a bunch of, you know, frankly, sleepy victims with a knife, I don't – I don't know.

[00:43:25] I don't know if you have to be a, you know, hyper-coordinated athlete to do that when you're the one who's armed and they're not. But, you know, and you're ambushing them. But I think – but I think that's relevant for them to bring up, certainly. I think it's relevant to bring up. I'm not sure how compelling it is. It's not, in my opinion. But maybe a jury would disagree. But I tend to think that that raises to the issue that maybe a jury should be able to consider it. A hundred percent.

[00:43:48] And, you know, and maybe getting more information on what this developmental coordination disorder looks like for Coburg or how it manifests itself would be helpful for the jury to hear. So autism came up in another filing in which aggravating factors and mitigating factors are discussed. Anya, can you remind us what are aggravating and mitigating factors in general and how are they used in sentencing? So I'm going to put it in layman's terms.

[00:44:19] I'm going to put it in the way. An aggravating factor.

[00:44:47] Because it's like not only did you kill them, but you made them hear other people being killed. They knew it was coming. It was horrifying. Well, let me give an example that's not so disturbing. I'm sorry. I'm sorry. What is our podcast called again? It's called The Murder Sheet. People know what they're getting into here. Let's say Anya is found guilty of the crime of stealing cereal. Oh, my God. And she is going to be sentenced. And so the judge would have to consider aggravating or mitigating factors.

[00:45:12] Let's say in the course of her cereal theft, she pulls a gun on the clerk and scares the clerk. That would be an aggravating factor, which would make her crime worse and make her deserving of a stronger sentence. That, let's say, is a mitigating factor. Let's say Anya didn't use a gun. And let's say Anya only stole the cereal because she had a starving child at home. And she's not a career criminal.

[00:45:41] Those are things that maybe you'd look at and say, okay. You're not so bad. Yeah. You don't deserve such a tough sentence. You seem like a nice lady. Yeah. So it's mitigating makes the crime better, for lack of a better word. So that would make the sentence less extreme. Yes. And an aggravating factor makes the crime worse, for lack of a better word, which would make the sentence more extreme.

[00:46:03] And so in this filing, they're talking about whether or not autism should be used or the symptoms of autism should be used as an aggravating factor when they're considering whether or not to sentence Mr. Kohlberger to death. So, again, this particular document seems to presuppose that he's going to be found guilty. Don't think of it that way. They're covering all their bases. Yeah.

[00:46:33] Which makes sense for defense attorneys to do. So the defendant had asked the court to prohibit the state from using autism or any symptom of autism as an aggravating factor. So the state is responding. And the state says, quote, the state has no plans to rely on defendants' autism as an aggravating factor at the penalty phase of the trial.

[00:46:57] However, the law is clear that the state can argue against and rebut defendant's alleged autism diagnosis to the extent defendant relies on his autism diagnosis as a mitigating factor. End quote. So that's a bit of a word salad.

[00:47:15] So what it basically means is the state is saying, hey, we're not going to go into sentencing and say Kohlberger deserves a harder sentence because he has autism. We're not going to do that. But we want to have the right, if the defense goes in there and says, hey, Kohlberger deserves a lesser sentence because he has autism, then we as the state want to have the right to challenge that.

[00:47:46] We want to say, well, maybe he doesn't even have autism at all. And even if he does, that shouldn't be considered a factor. Wasn't he diagnosed with autism? The state refers to it as his alleged autism diagnosis. Interesting. OK. So does that make sense? The state is saying we're not going to use this as an aggravating factor. Yeah. Why would it be an aggravating factor? I wouldn't even understand that. But OK. But they're saying we're not doing that. We have no plans of doing that.

[00:48:15] But if you try to use it as a mitigating factor, we might challenge it. Yeah, it makes sense. Including up to including whether or not he has autism at all. So I'll be interested. It'll be interesting to see what happens there. So. Next one. Autism. What? What? Autism state. Anya is. I made the notes for this. I think Anya is going to do the notes for the next episode. This is.

[00:48:46] My notes. Oh, you're saying this is. OK, this is this is this is in the category of autism. And the document we are discussing was filed by the state. The state's response to defendants motion to strike death penalty re autism spectrum disorder. So. So as a refresher, the the defense said Mr. Kohlberger should not even be considered for the death penalty because he has autism.

[00:49:14] And that it would it would shock the conscience and shock community standards to impose the death penalty on someone who has autism. We discussed that a few weeks ago. And so now this is the state's response to that motion. Does that make sense? Yes. So they are arguing in response to let's let's rule out the death penalty. And the state claims that.

[00:49:45] In order to make that sort of argument, you need to show that there is a consensus that executing people with autism is wrong or would shock the conscience. And they say the defense didn't meet that burden. They say that the cases the defense sites are about other matters.

[00:50:06] And in one case, they do cite a case of someone with autism challenging his sentence, but he's not challenging it on the basis of his autism. And the state is basically saying that the only credible reason to challenge the capital punishment in such cases, it would be if there's intellectual disability. Yeah, that would be that that fundamentally comes up a lot in death penalty cases.

[00:50:33] The idea of executing people with intellectual disabilities is like a concern over that. That's kind of what usually comes up. It's people with, you know, like autistic people. It's a spectrum. And also there can be disability, intellectual disability components to that where that that's but it's not everyone with ASD has an intellectual disability. Yeah, I'm going to read.

[00:51:03] And obviously, Koberger doesn't. He's a Ph.D. student for crying out loud. Yeah, that's a great point. And I was actually going to read some direct language here. But instead, I will paraphrase it. The state notes that the Idaho Supreme Court and Idaho law, they prohibit the death penalty in cases of mental disability.

[00:51:26] If the person is basically if they have an intellectual disability, you need to have proof of three elements. An intelligent quotient or IQ of 70 or below. Significant limitations in adaptive functioning in at least two of the 10 areas listed. And three is the onset of the defender's IQ of 70 or below. And the onset of his or her significant limitations in adaptive functioning both must have occurred before the offender turned age of 18.

[00:51:55] And as you know, there's no plausible argument here that Koberger is intellectually challenged. No. He's a Ph.D. student. Obviously, he had a lot of academic success. That doesn't mean that he hasn't struggled in other areas. Obviously, that's not what we're saying or that, you know, his diagnoses or alleged diagnoses or whatever haven't haven't had an impact, a meaningful impact on his life or how he does things or social limitations.

[00:52:24] But as far as the definition of what this means for the law, that he obviously doesn't fulfill that. And I want to read another point they make in here, which is similar to a point that was earlier raised in our discussion by the classic layperson Anya Kane. Don't call me. Why is that? Quote, autism spectrum disorder is not susceptible to defendants categorical approach.

[00:52:54] This court should reject defendants attempt to group together all individuals with any form of ASD for purposes of determining whether the Eighth Amendment prohibits imposition of the death penalty. End quote. As Anya said earlier, if you meet one person with autism, you've met one person with autism. It's called autism spectrum disorder for a reason.

[00:53:16] There's really a wide variety of elements to the disorder and how it manifests itself. And so it would not make sense to say that everybody who has this condition should be put into this one box and treated exactly the same in courts. Right. Does that make sense? Yeah, I mean, I can see the argument.

[00:53:44] And are we on to the next portion or? Actually, should we? I guess we have a little bit of time left, right? We have got a little bit of time. The next one is there is a motion. From the defense concerning immediate family members in the courtroom.

[00:54:10] I think the most interesting thing about this to me is. Well, let me read it to you directly. Quote, Mr. Kohlberger respectfully requests that the court's guidance outline proper courtroom decorum, which will discourage spectators from wearing T-shirts, e.g. T-shirts with a picture of the victim on them and the words in memory of or T-shirts about shooting Mr. Kohlberger or about the passage of Idaho's firing squad legislation.

[00:54:40] Buttons or other apparel with words, photos or artwork that can be observed by the jurors since such conduct poses a coercive threat to the jury's ability to remain impartial, end quote. So he's saying that in some earlier proceedings, some members of the family who understandably are quite upset with Mr. Kohlberger and who are really looking forward to seeing Mr. Kohlberger get what they see as his just desserts.

[00:55:09] They're wearing T-shirts like in memory of my relative who passed away or T-shirts would seem to be advocating for Mr. Kohlberger to receive the death penalty. And Mr. Kohlberger and his counselor are saying those sorts of things could be seen as sending a message to the jury and shouldn't be allowed. I'm inclined to be sensitive to that argument. What do you think?

[00:55:37] I'm from the perspective of family members who I believe it was Kaylee Gonsalves' family who lost this bright, beautiful young woman in a horrific attack for no reason. Their anger is completely valid. Their rage is valid and would not be my place to say, oh, how could they do this?

[00:55:59] But from the perspective of this just being a fair trial, having things go as smoothly as possible, having Kohlberger's rights respected, having the jury, you know, not be seeing that. I think it's appropriate for that to not be allowed in this setting, you know, that that that does not seem the place for it. And ultimately, this is this is I mean, I think sometimes victims families run into this with with the legal system.

[00:56:27] It's like it can be a frustrating and traumatic in its own way experience and not necessarily the place where. There they get that. I don't know, like closure is the wrong word, but they get that kind of outlet for all the feelings that they have about this. It can be very cold and kind of professional and clinical almost.

[00:56:52] And it's like, you know, I think maybe maybe wearing T-shirts like that to like a memorial or a rally or, you know, media appearances afterwards that that might be the outlet for that versus in court where the jury. Yeah. I don't even see a problem with them wearing T-shirts like that in proceedings where pretrial proceedings where there's not a jury. Yeah. Yeah.

[00:57:16] But I would really be concerned that this would fundamentally affect the fairness of of such a proceeding. And the worst thing that would happen would be if he is convicted and then it's found that there is something unfair. We need to do it again. Yeah, I think the defense is absolutely correct to ask for this for their client. I think the court would be correct to not allow it.

[00:57:44] And if he is found guilty, certainly the family members will have an opportunity to share their feelings with victim impact statements during the sentencing process. But but just because we're agreeing with the defense does not mean we're condemning them for doing this. Because, again, I mean, think about the rage anyone would feel if something like this happened. I mean, it's it's horrible. And, you know, you want to have that outlet. You want to want to be able to express those feelings. And I think I hope they'll be able to. It's just probably not in that setting. Right. So I think that's it.

[00:58:14] There's a few more I have notes for. And then I think you're going to do some notes on others. And we would do another episode on some of these other a lot of filings, a lot of filings, a lot of filings all at once. But but it's interesting. And it's you know, it's kind of interesting to see. The case, I think this is, you know, I think. As far as everyone's kind of going back and forth, we're seeing some interesting arguments on both sides. People are people are making different points.

[00:58:42] I mean, I'll be curious to see if it goes to trial on time, you know, or if this is going to get delayed more or are all the parties kind of ready to go at this point? And. And, yeah, I mean, it's one of those cases that certainly has attracted a level attracted a level of kind of kind of nutty opinions online to a certain extent. But from the perspective of what the parties are doing, a lot of it makes sense.

[00:59:10] So are we done? Yeah, we're done for now. We'll be back later in the week to talk about the other filings. Thanks, everyone, for listening. Thanks so much for listening to the murder sheet. If you have a tip concerning one of the cases we cover, please email us at murdersheet at gmail.com. If you have actionable information about an unsolved crime, please report it to the appropriate authorities.

[00:59:37] If you're interested in joining our Patreon, that's available at www.patreon.com slash murdersheet. If you want to tip us a bit of money for records requests, you can do so at www.buymeacoffee.com slash murdersheet. We very much appreciate any support.

[01:00:01] Special thanks to Kevin Tyler Greenlee, who composed the music for the murder sheet, and who you can find on the web at kevintg.com. If you're looking to talk with other listeners about a case we've covered, you can join the Murder Sheet Discussion Group on Facebook. We mostly focus our time on research and reporting, so we're not on social media much. We do try to check our email account, but we ask for patience, as we often receive a lot of messages.

[01:00:31] Thanks again for listening. Can we talk a little bit before we go about Quince, a great new sponsor for us? I think in one of the ads that we've already done for them, we talked about the compliments I'm getting on my jacket. I know you're a very modest woman, but can we talk about the compliments you're getting on the Quince products you wear? Yeah, I've got two of their Mongolian cashmere sweaters.

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[01:01:23] Also, I'm one of those people, my skin is very sensitive. I'm kind of sensitive. So when it comes to wearing sweaters, sometimes something's too scratchy. It really bothers me. These are so soft. They're just very delicate and soft. Wearing them is lovely because they're super comfortable. It's not one of those things where you buy it and it looks great, but it doesn't feel that great. They look great. They feel great. But yeah, I really love them. And you got your cool jacket.

[01:01:51] I mean, that's a little bit of a – you're the guy who wears the same thing all the time. So this was a bit of a gamble for you, a bit of a risk. You got something a bit different. I do wash my clothes. I know you wash your clothes, but I mean – you're filthy. You just made me sound awful. So no, I wash my clothes. But you don't really – I laundry them. You don't really experiment with fashion that much is what I'm saying. So this is a little bit out of the norm for you, but I think you really like it and it looks good. Thank you. Great products, incredible prices. Absolutely. Quince.com.

[01:02:21] There you go. So you can go to Quince.com slash msheet. And right now they're offering 365-day returns plus free shipping on your order. So it's Quince.com slash msheet. That's Quince.com slash msheet. So Anya, before we let people go, I wanted to talk again about the Silver Linings Handbook.

[01:02:44] More specifically, I want to talk about Jason Blair because certainly there have been times when something happens and we don't know what to do. We're just out here rubbing two sticks together. And we need to turn to somebody for advice. I'm sure everybody's had that experience. We need to turn to somebody for advice. And one of the people we turn to most often is Jason Blair. And he's always been there for us. He's always willing to give you time. He's always willing to give you great advice.

[01:03:14] And so now what's wonderful is that everybody within the Sound of My Voice has access to his insights and his compassion and his advice because you can find all of that on his podcast. Yeah, this podcast is a bit like being able to sort of sit down and sort of hear some interesting insights. I always feel inspired by it.

[01:03:35] He's had on some really incredible guests recently, and they've had just such like heartbreaking, real conversations with people like Jim Schmidt, who his daughter, Gabby Petito, was murdered. Jim just came across just as such a real and empathetic and wonderful human being. He was even given one of Jason's friends kind of told him recently about some abuse she had suffered. Jim was giving advice. I mean, it was really incredible. I'm thinking of Kimberly Loring. Her sister went missing in Montana.

[01:04:05] It's another case involving a Native woman. So raising awareness about that, talking to the woman who lost her father, who was a Los Angeles Police Department detective. He was murdered so he couldn't testify at a robbery trial. Just like awful stuff. But ultimately really focusing on the compassion and allowing people the space to tell their stories. I think Jason shines as an interviewer because he has that natural empathy and curiosity, too.

[01:04:31] Whenever I'm thinking of a question like, oh, I hope they get into this, he's asking it two seconds later. So it's a really enjoyable listening experience. And I feel like whenever we listen to it, you and I end up discussing some deep stuff like religion or what kind of positivity we want to share with the world. So I think if you're looking for that and you're looking to have those kind of thought-provoking conversations in your life, this is the show for you. 100%.

[01:04:56] So I would just say that if you're interested, subscribe to The Silver Linings Handbook wherever you listen to podcasts.