Defense for defendant Bryan Kohberger signals evidence challenges in Idaho murder case

State prosecutors in the University of Idaho student homicide case relied on a federal grand jury to obtain dozens of subpoenas to build their case against suspect Bryan Kohberger, it was revealed for the first time at a hearing Thursday.

As many as 71 sealed federal subpoenas produced potential evidence, Latah County Senior Deputy Prosecutor Ashley Jennings disclosed in court, in the case against Kohberger, who is charged with four counts of first-degree murder and faces the death penalty if convicted. The materials collected from those subpoenas have all been turned over to the defense, she said.

But Kohberger’s public defense team said it wants the subpoenas themselves and demanded that the judge in the case order the state — and the federal government acting on its behalf — to turn them over. The federal grand jury, overseen by the U.S. Attorney’s Office, led to what could prove to be pivotal evidence at trial and is included in the probable cause affidavit for Kohberger’s arrest, the defense said.

“They used a subpoena to get one of the most critical pieces of evidence in this case, and they know that, and they are going to use that,” Elisa Massoth, one of Kohberger’s attorneys, told the court at one of two scheduled hearings Thursday.

Massoth did not specify which piece of evidence against Kohberger that may be, and declined to provide the date of that federal subpoena in the public hearing.

“What I can tell you is that for the majority … we did state search warrants, and we’ve received many of these records that way,” Jennings responded.

The prosecution contacted the U.S. Attorney’s Office about the subpoenas, and was told they won’t be turned over, she said.

U.S. Attorney for the District of Idaho Josh Hurwit and his office did not respond Thursday to email and phone requests for comment from the Idaho Statesman.

Kohberger, 29, is accused in the stabbing deaths of four U of I students at an off-campus home on King Road in Moscow in November 2022. The victims were seniors Madison Mogen and Kaylee Goncalves, both 21, and junior Xana Kernodle and freshman Ethan Chapin, both 20.

Latah County Prosecutor Bill Thompson, who is leading the case’s prosecution, seated a grand jury in the county in May 2023 exclusively to review the Kohberger case. The grand jury — a confidential prosecutorial tool — returned a unanimous indictment against Kohberger on the four murder charges and one count of felony burglary.

Kohberger stood silent at his arraignment a week later. The judge in the case, Judge John Judge of Idaho’s 2nd Judicial District in Latah County, entered a not guilty plea on his behalf.

Judge has yet to set a trial date for Kohberger.

Defense presses for more video footage

More than 100 search warrants were obtained by Moscow and Idaho State Police detectives in their investigation into the student homicides that shocked the rural college town, the state and the nation. The FBI assisted in the investigation, including with producing DNA evidence that police and prosecutors said links Kohberger to the crime scene.

A separate, closed-door hearing was held later in the day Thursday so the two sides in the case could make arguments before Judge over sealed evidence records. The defense aimed to have some of the DNA records from the FBI’s use of an advance police technique known as investigative genetic genealogy, or IGG, be made public, which prosecutors opposed.

But the revelation Thursday that the U.S. Attorney’s Office helped obtain evidence for the Kohberger case is yet another wrinkle that further emphasizes the level of federal involvement in the high-profile case.

During the three-hour early afternoon hearing, Kohberger’s defense lawyers said they are working toward filing several motions to suppress search warrants and evidence against their client, largely based around the timeline of police work leading up to Kohberger’s arrest. He was taken into custody in Pennsylvania at his parents’ house seven weeks after the students’ deaths.

Additional information, including the dates of those federal subpoenas, will help the defense establish that timeline and support their attempts to have evidence tossed from the case, Massoth said, which would block its use from the eventual trial and consideration by the jury. That timing is everything for the defense’s case, she added.

“We are desperate to find out the timeline in this case and when the state knew what and when,” Massoth told the court. “There’s no question that motions to suppress are coming.”

Through the legal process known as discovery, Kohberger’s defense also is seeking from the prosecution more video footage that police obtained from around the Moscow community in the days and weeks after the killings. Security and surveillance camera footage that was acquired during the investigation from approximately 79 area businesses and 10 private residences contributed to investigators’ suspicion of Kohberger as the alleged perpetrator.

Anne Taylor, Kohberger’s lead public defender, said her team still lacks a number of those videos — some of which may include evidence that could help her client’s defense. Two Moscow police officers who were integral to the investigation testified — one last week and one today — that they were each unaware where the missing footage may be.

“I need to know where these videos are,” Taylor said Thursday. “They’ve been collected, but nobody can tell me where.”

Among other pieces of evidence Kohberger’s defense said they’re still due from prosecutors are some highly technical cellphone tower data and reports, missing work product from Moscow police detectives and FBI investigators, and all other information that the state relied upon for each affidavit used to justify all warrants.

“That’s like a big one,” Judge quipped.

Some of the defense’s discovery requests are for records that either don’t exist or that the prosecution is still working to retrieve, including from the FBI, Jennings said. The state will deliver everything that prosecutors are required to provide to the defense under Idaho criminal rules and court precedents, she said.

“We can’t give over what we don’t have,” Jennings told the court.