Can Bryan Kohberger Get a Fair Trial in Moscow?

0:00This episode is brought to you by Progressive Insurance. You chose to hit play on this podcast today, Smart Choice. Make another smart choice with AutoQuote Explorer to compare rates from multiple car insurance companies all at once. Try it at Progressive.com. Progressive Casualty Insurance Company and affiliates not available in all states or situations. Prices vary based on how you buy.

0:24Hey, it's Kana Whitworth. I came back to Moscow, Idaho for the latest hearing in the Brian Koberger case. You can have the record, please. Koberger is scheduled to stand trial for the murders of Kaylee Gonsalves, Madison Mogan, Zanna Kernodle, and Ethan Chapin next summer. A not guilty plea has been entered on his behalf. The big question the judge is wrestling with now is where will that trial be held when it's set to begin nine months from now? The defense, once it moved out of Latah County, where Moscow is located, to Boise, several hours away, or to another nearby county, Koberger's defense says all the pre-trial publicity about their client has been negative.

1:11It's actually prejudiced potential jurors in Latah County. You have to get this case out of Latah County. That's an important decision, and it's important to make now. We're nine months from trial, and we need to have the venue issue settled. Prosecutors concede the media coverage has been intense, but they say changing the venue won't solve the defense's problems. Thank you, Your Honor. The pervasive media coverage across the entire state has simply created some complications and difficulties. Those are not unique to Lake Tauch County. In this episode, we sat down with two of our ABC News legal contributors just hours after the hearing wrapped up.

1:53And they walked us through the dilemma of seating a jury for a case that everybody's heard of. And we'll visit the county park that Koberger's lawyers say he was at the night of the murders. It's very remote. There's no cell service down here. So it's an easy place to go escape. This is a bonus episode of the King Road Killings. Can Brian Koberger get a fair trial in Moscow?

2:34Inside the small courtroom in Latah County, a crowd gathered to hear the defense make the argument for moving the trial away from this small college town where the murders took place nearly two years ago. Kaylee Gonzalez's parents, Christy and Steve, were there. They've pledged to be at every hearing. Kaylee's brother, Stephen III, was also there in a shirt and tie. Brian Koberger walked in, wearing a large black suit coat. It looked new. You could see that the back vents hadn't been cut yet. He greeted his attorney and took his seat at the defense table. Throughout the hearing, his attorneys would present nearly six hours of testimony from media and psychology experts.

3:19One of them was Brian Edelman, who polled public attitudes across four different counties in Idaho. He surveyed what 400 potential jurors in Latah County knew about the case, their attitudes toward the defendant, and their ability to be impartial. Edelman testified that he found a clear negative media bias within Latah County. Lada County is a small venue, and the crime has been seared in the community's consciousness. People have been saturated with prejudicial coverage. Many people here have direct and indirect connections to this crime. We know from the data that jurors have closely followed the case, they've talked about it, they're familiar with prejudicial details.

4:03I think that the presumption of innocence has been undermined, and presumption of guilt prevails in this community. The defense had used the term mob mentality in its filing before the hearing. And in court, Edelman gave examples of the types of responses they got in their survey. How people said they'd react if Brian Koberger were found not guilty. A range of themes from people would basically kill him to they'd burn the courthouse down or assume that the jury failed or that he would have to prove that he was not guilty. Again, shifting the burden, and then just emotional stuff about it would be devastating to the community.

4:43Other people talked about the fear, if you didn't do it, well, who did? The defense, along with their witnesses, argued that yes, there's bias present all over Idaho. But they believe that other nearby counties, like Nez Perce, or further south, Ada County, home to Boise, the state's largest city, are less biased than Latah. Their survey found there are fewer people in these counties who've prejudged Koberger. Prosecutors cross-examined the defense's witnesses and pointed out that moving the trial would take a toll on victims' families and witnesses who would have to travel potentially long distances.

5:23Lead Deputy Attorney General Ingrid Beatty noted the defense's survey showed attitudes in Latah County weren't that different from attitudes in other counties surveyed. I would also point the court to the fact that jurors among the total sample size who had no opinion about this case, potential jurors surveyed respondents. Latak County had the highest number of folks who reported having no opinion about this case at 17 percent.

5:51Two ABC legal contributors streamed the hearing. They're joining me now. Matt Murphy was a former prosecutor for 17 years trying capital murder cases in Orange County. And Brian Buckmeyer was a homicide defense attorney in Brooklyn who's now in private practice. And gentlemen, I'm so honored to have you here with me. And I'm curious as to your thoughts. And Brian, we'll start here with you. Look, the defense team really had the courtroom today. This was multiple hours of witness testimony. What stood out to you the most? It was the level of detail from the surveys intertwined with the expert analysis as to bias, cognitive dissidence, the way that people think, and also don't realize how they think and how that could affect jury selection.

6:38Yeah, it certainly makes you question almost everything that you do in your own personal life from day to day. But Matt, on the prosecution side, boy, they were awfully quiet today. Yeah, I think that there's really two parts to that. Number one, it is traditionally very difficult to get a change of venue granted based on pretrial publicity. Orange County, for example, we've never had one granted in decades and decades. But I think at the end of the day, whether this is tried in Boise, whether it's tried in Moscow or whether it's tried in one of these other small counties closer to the murder scene, the prosecution's looking at it like they're going to get a fair jury.

7:21And I don't think there's going to be that much difference between the group of jurors who show up in one jurisdiction compared to another. I don't think it's going to make much difference from the prosecution standpoint. Well, it's so interesting that you say that, though, Matt, because, I mean, that was the crux of everything that we heard from the witnesses today, right? They were displaying all kinds of data to try to say these are the respondents from Ada County, which is where Boise is. It's the most populated county in Idaho. And they just felt like these responses are far less emotional from what they viewed as incredibly personal and emotional responses in Latak County.

7:59Yeah, well, those responses, of course, are they pick the worst ones and that's the defense's job. Right. And there's 40 ,000 people in Latak County. And of course, there's a lot more in Boise. But a juror that expresses any sort of bias like that is never going to be a proper juror. The court is going to dismiss that. That's called dismissal for cause. And remember, you've got a constitutional right to have a fair jury. You don't have a constitutional right to find people that haven't heard of a high profile case. And when you do enough high profile cases, what you typically find is people will come in and most people are really busy with their own lives most of the time.

8:37And this case is a high profile case, but Brian has done high profile cases in New York. I have in California. And when you actually go to pick that jury, it's shocking. You feel like the entire world is watching your case and living and breathing by it. And you might get like one person in 10 that knows anything of real substance. Everybody else is like, yeah, I heard something about that. And there's some college students. And it's surprising how out of touch of the news most jurors are. But, you know, once somebody's heard of a case, the next question is, well, can you put aside anything you've heard before and base it on the law and the evidence as you hear it as instructed by the court?

9:19Most jurors really want to do the right thing at the end of the day. I know it's easier for the victim's families if it stays in Moscow. That will weigh heavily with the court. And Brian, to that point, they had witnesses testify today about how many, you know, newspaper articles had been written and how that equates to past trials that have been granted a change of venue. Brian, you and I have talked about the Vallow case. That is one that they decided to highlight today in court. And frankly, Brian, it wasn't the only high profile case that they tried to link Brian Koberger's case to. They also said that in terms of general awareness about this case, they linked it to George Floyd.

10:06Yeah. The name of the game is precedence. and the ability to attach your arguments to another case that worked in your favor is pretty much what we as attorneys do. The other part of that is the human aspect of it, that no judge, especially in a higher profile case, wants to stick their neck out. They love to have the ability to say, you know what, this judge over there did the same thing as me, and he or she was okay. I can follow the same path. And so pointing to, I think, the Chad Daybell and Lori Vallow Daybell case, the doomsday cult parents, the parents who had killed their children because they thought it was the end of times and traveled to Hawaii, and everyone heard about this story.

10:48And ironically enough, they moved their case, I think it was from Fremont County to Ada County, the exact same county that they're trying to move it here. And everything worked out. They picked a jury, and for the prosecutor, it worked out for them. They got a conviction. Chad Daybell is actually being sentenced to death. And so for the defense to be able to point to a case like that and say, in this very state, another judge did the exact same thing. It wasn't sticking their neck out. It was just as much, if not more, media coverage. And they found a fair and impartial jury. And Brian, in terms of what the defense is trying to do here in trying to build this case, bringing all this witness testimony, I mean, it was over five hours today of PowerPoint presentations.

11:29There was dozens of slides, clearly of this extensive survey that was conducted by this outside firm. But also a lot of it had to do, Brian, with the oversaturation of media coverage. And I was a little bit surprised in the courtroom that so much of what they considered media coverage had to do with social media and Reddit threads. What they were talking about wasn't coming from journalists. Yeah. I mean, I think that is just an indication of the times. Like we weren't talking about people getting news from social media 15 years ago. We weren't talking about people getting news from social media in the same way they get today, maybe even two or three years ago.

12:17I mean, X, Reddit, all these places, people turn to get their news from at a greater volume than they did the day before. And they probably will do it in a greater way tomorrow than they do today. And so I think now the court, and the court's not very good at this. We're often a couple of years behind in science and in media and trends. And so the court, in some regards, has to play catch up and bring in the experts. And you tell the judge, like, judge, this isn't something we've done before. This isn't something we had to contemplate before, but this is something that definitely interferes with the Sixth Amendment of a fair and impartial jury that we need to contemplate.

12:54One moment in the hearing demonstrated just how tricky it is in court to talk about media coverage without giving it an even bigger megaphone by feeding images and headlines into the court's own live stream. As Edelman was going through his testimony with lead defense attorney Ann Taylor, he displayed a lengthy list of Facebook groups that have popped up to talk about the case. We'll just keep scrolling for a minute. I think this goes on a little bit. Sure. These are all groups that you're looking at right now. These are just Facebook groups that have been created talking about this case. These are videos.

13:30And these all popped up from that one search trial. Judge John Judge quickly stepped in. I don't think we need to advertise all these, honestly. Okay. We've been trying to protect from this kind of stuff. Your Honor, I'm aware of it. I don't look at it. I don't read it. We know it's there. May we take a brief break, Your Honor? Sure.

14:01The hearing went on break, and when it resumed, a portion of discussion wasn't live-streamed. But eventually, we got back to the expert witnesses and the attorneys making their change of venue arguments. Okay, we are back on camera. Sorry for the disruption about that. But we're going forward now. Okay, Ms. Taylor? Thank you. Your Honor, may I share my screen? Yes. You know, there's been so much focus about potentially moving this trial down into Ada County where Boise is. But at the end of the day today, we heard Ann Taylor, the lead defense attorney, talk really forcefully about the option of moving it into Nez Perce County or another neighboring county as well.

14:51these are smaller counties, smaller populations. And she tried to ask the judge to really, really consider that, noting that they weren't so far away, right? Boise's, depending on how you drive, five or six hour drive from Moscow. And that would certainly be hard on the families. And so she was trying to say, what if we get it out of Moscow, out of Leyta County, but into one of these neighboring counties. And so, you know, Matt, again, we didn't hear from the prosecution rebutting that in that moment, but how do you think they were taking that? Well, one problem for the defense on that is that, you know, there's the whole concept of potential, you know, jury viewings is something that most courts and death penalty cases at least like to have available, although it's kind of rare.

15:40In this case, remember, they tore the house down. Yeah, there's nothing for them to look at, but they built these models or something to bring in. Right. So but but four hours is a long way away. That's four hours for for witnesses and convenience of of parties and witnesses is one of the factors in Idaho penal code section 21 regarding change of venue. So, yeah, so that that may actually carry some weight. Yeah. If they if they kick it to the county next door, I don't think the defense has necessarily change much in my view. And Brian, just sort of lastly on this topic, I'm curious as to your thoughts on the fact that Brian Koberger's defense team, you know, is alleging that the media coverage has been so extensive that, you know, many residents in Moscow have this prejudgment of guilt towards Brian Koberger.

16:35But then, you know, they put these filings out there, and they tell the community of Moscow, based on their survey, there's a mob mentality here. People I spoke with in the community are very offended by that characterization. What does it do for Ann Taylor to put that out into the world? So I can only I can't speak for Ann Taylor because I am not Ann Taylor, but I will say this. Ann Taylor is a public defender. I was a public defender for nine years, there is some commonality amongst people who choose to go to law school, choose to go to probably one of the least paying jobs that you can get out of law school, but do it for a reason that is a true belief that the system needs people to push back on and to represent people who should not be judged by the worst thing that they're accused of or the worst thing that they do.

17:34And so for better or for worse, and I will include myself in this category, I represent my client and I don't care about anything else. And I think that's what everyone deserves. And I understand that I myself have said things that have hurt the feelings of victims and their families. I think every public defender understands that. But we compartmentalize and force ourselves into that position because everyone deserves that person. Everyone who gets accused of a crime deserves a person in their corner that says, I'm here for you and you only. I'm not measuring or weighing how the community will feel.

18:17I'm not measuring or weighing anything other than how do I advance your best interest? And I think the system only works when a person is represented by that person. And on the other side is a person that says, I'm going to put you in jail and I'm going to make sure the rights of these victims are heard. And then we have those two opposing forces. The hope and belief is that we have justice, but you can't have those two people trying to do each other's jobs. It's got to be two equally strong opposing forces. And we hope that the outcome is justice.

18:51After the break, more from our legal analysts about the most contentious parts of this case. Plus, my visit to the place Koberger's attorneys say he was on the night of the murders.

19:12One of the things I've been so curious about in this case is where Brian Koberger was on the night of the murders. Oh, there's the first sign. Wauwai. Defense claims that during the early morning hours of November 13, 2022, Koberger was alone, driving around Pullman, Washington, where he lived, including Wauwai County Park. As the alibi filing stated, he often did this to hike and run or see the moon and stars. It's a half hour drive from where he lived. It's remote. I drove out there with two of my producers to look around. And okay, we're going to turn right off the Toon Lane Road and go in.

20:03Okay, so first of all, the sign, hours of operation are 7 a.m. to dusk. The park is closed and gated at dusk. It even threatens to lock your vehicle in the park if it's still here.

20:20We head inside, and we're out here on a perfect early evening in August, and there still aren't very many people here. And now we're on a little bit of a trail. Locals come to Hawaii County Park to hunt and fish in the Snake River. We see one fisherman in the distance. He's not having much luck. The sun is kind of just starting to go down. The river looks like glass. Some of the hills are in the shadows. Some are just getting that last little bit of daylight. On the November night in question, it was a much different scene. Records show it was a chilly 28 degrees. There was ice fog, and it was overcast.

21:14Just inside the park, the road splits into a Y, and we pass a driveway. There's a house built into a hill. It has a really cool, large, circular window in the front, and the roof is in the hill. It's dirt and grass. I knock, and the park superintendent, Dave Mahan, answers the door. This is where he lives year-round with his family, and he agrees to talk with me. As we stand here now, it's what, it's 740 at night. I mean, it's gorgeous here. The temperature is perfect. The sun's going down. It's beautiful. But what is it like in November? It's really cold in November. You wouldn't really expect to see very many people down here in November.

22:06Dave's heard the news reports. He knows Koberger says he was here the night of the murders. But Dave tells me he really has no way to know if that's true or not. I can't prove that anybody was here or not here at any given time. There's no sign-in book, no security camera footage. And Dave says this isn't even the first time that someone has used the park as an alibi. From the beginning, we've always said he better not say he was here. Really? You had that thought that early on? And then they gave this partial alibi without a location and followed it up later with the location. And what did you think?

22:57I wasn't surprised. I mean, it's not comforting. I mean, how would you feel if... Yeah. I mean, I live here. Yeah. Wow. I don't want my place being in the national spotlight.

23:13And as for the gate that's supposed to lock the park after dusk, Dave says he closes it. But if he has campers, he leaves it unlocked for them to come and go. He doesn't monitor it too closely. He says a person could walk right through for a night hike if they wanted to. Still, I wonder how Koberger's alibi will hold up in the courtroom. And I brought this up with our legal experts, Matt Murphy and Brian Buckmeyer. Brian and Matt, there's been a lot of talk about this alibi. At one point, Judge Judge called it a so-called alibi because there wasn't a lot of detail. And so his team then provided this follow-up, noting that Brian Koberger sort of made this habit of going out to this remote park and that he started in the summer running and hiking and then his school got busy.

24:11It turned into these nighttime drives. They say he has all these photos on his phone depicting the night sky on several different occasions, including November. I'm fascinated by their decision to enter this alibi with so few details. Brian, I'll start here with you, I drove out to Wauwai Park. You lose cell phone service completely about 15 or so minutes before you even get to the park. But why provide this alibi that still leaves so many questions? Remember, we as attorneys have to play by certain rules. And I think the easiest way I explain it to people who come in contact with the criminal justice system is it's not what you know, that's what you can prove.

24:56And so one, when it comes to alibis, I think Idaho and New York where our practice operate in a very similar way, that it's if you don't announce it, you don't get to use it. And so you have to put forward what your alibi is, because you're supposed to not spring this on your opposition, they're supposed to have the ability to verify it and confirm it. However, there are competing constitutional rights here. When you tell me that Brian Koberger does these solo drives and goes out there, in my mind, I'm thinking, how are you going to prove that but putting Brian Koberger on the stand? Because you need someone to be able to give that firsthand knowledge.

25:34For example, when I'm stressed out and my wife and son are now sleeping right now, I'll sometimes go to the garage and I'll juggle a soccer ball. That's how I decompress. But no one can tell you that's true. My wife can't testify to that. You guys can't testify to that, that would all be hearsay. Maybe this video in my garage of me juggling a ball, but you would still need someone to be able to say that's a true and accurate representation of what that depicts. So in terms of the rules of evidence, only Brian Koberger can bring that in, but he has a Fifth Amendment right not to incriminate himself.

26:05And so they have to give enough to get the alibi, but they can't give you everything without putting their client up. And they're not willing to do that, especially at this point. And they may have a very difficult time doing that come trial. If he has photos, the only way I could maybe imagine that coming in as an alibi is there is usually like a digital footprint to a photo that says, yeah, the metadata that tells you the time and often location of where it is. I think even if you don't have service, the metadata should still stamp where you are and what time. You would have to have someone that does data mining to get that out of the phone who could testify to that and not have Brian Koberger do it.

26:45But that's still a lot of hoops to jump through. And so you've got to do it delicately at this phase. So I think you're right about all of that. And Matt, I'll get your opinion here. I spoke with a cell phone expert who explained to us essentially that this metadata does exist on a photograph, even if you're out of service, even if your phone is in airplane mode.