Speaker 1: Up, everyone, and welcome back to the program. In this episode,
Speaker 1: we're going to dive right back into those core documents,
Speaker 1: and we're going to start with the defendant second motion
Speaker 1: to compel Discovery Case number c R twenty nine DASH
Speaker 1: twenty two DASH zero zero zero two eight zero five
Speaker 1: the State of Idaho plaintiff versus Brian C.
Speaker 2: Coburger.
Speaker 1: The defendant comes now Brian C. Coburger buy and, through
Speaker 1: his attorney and C. Taylor, public defender, and pursuant to
Speaker 1: Idaho Criminal Rule sixteen F, hereby moves the Court to
Speaker 1: order the State to comply with the defendants first and
Speaker 1: second supplemental requests for discovery and Exhibit A and Exhibit
Speaker 1: B attached to the requests. The State has provided a
Speaker 1: significant amount of discovery materials and has provided written responses
Speaker 1: to the discovery requests. However, certain requests remain outstanding. As such,
Speaker 1: mister Hoburger requests in order for the State to disclose
Speaker 1: the following items included in defendants first and second supplemental
Speaker 1: Requests for Discovery. Number one Request one investigative reports and
Speaker 1: conclusions from all cell phone analysis, including but not limited to,
Speaker 1: any analysis conducted by police agencies, FBI, Cast Team.
Speaker 2: Or other Idaho authorities.
Speaker 1: The state has responded by listing page numbers and audio
Speaker 1: video file names of information and data provided to the
Speaker 1: defense in discovery. As of June thirteenth, twenty twenty three,
Speaker 1: Council for Mister Coberger has not received any investigative reports
Speaker 1: and conclusions of the analysis of this data conducted by
Speaker 1: police agencies. Two Request number four All footage provided to
Speaker 1: forensic examiners with FBI used to identify make and model
Speaker 1: of the vehicle. A, All reports generated related to the
Speaker 1: identification of the white Lantra. B All reports, communication and
Speaker 1: documentation related to the change in year of the white
Speaker 1: Alantra that was sought c CV of credentials of forensic examiners.
Speaker 1: The state has responded by listing various page numbers and
Speaker 1: file names of recordings.
Speaker 2: They have previously provided.
Speaker 1: However, they do not provide any reports generated, communications and
Speaker 1: documents relating to the change in year of the white
Speaker 1: Lantra or the CV or identity of the forensic examiner
Speaker 1: who identified this as the make and model of the vehicle.
Speaker 1: Three Request number seventeen. Please see Exhibit A to defendants.
Speaker 1: First Supplemental discovery request for specifics. The State has responded
Speaker 1: that they are attempting to obtain this information. If it exists.
Speaker 1: The State will comply with this request upon receipt. As
Speaker 1: of June fourteenth, twenty twenty three, Council for mister Coberger
Speaker 1: has not received this information. Number four Request twenty three
Speaker 1: Please see Exhibit A. To defendant's first supplemental discovery request
Speaker 1: for specifics, the State responded that they have provided AV
Speaker 1: zero zero zero one two three discovered on the thirtieth
Speaker 1: of March twenty twenty three. However, the provided recording is
Speaker 1: an in person interview with FBI agents rather than the
Speaker 1: phone interview done by Moscow Police. Five Request one oh
Speaker 1: nine identity of FBI special agent that is a member
Speaker 1: of the Cellular Analysis Survey team that was consulted with
Speaker 1: to determine the locations of the cell phone from eleven
Speaker 1: twelve and eleven thirteen, and all cast certification records and
Speaker 1: training records for the involved agents. The State objected to
Speaker 1: this request for the reason that this is outside the
Speaker 1: scope of I dot seed dot R dot sixteen. To
Speaker 1: the extent that the State intends to offer expert testimony,
Speaker 1: it will comply with I dot seed dot R sixteen
Speaker 1: Part B, Section seven. Mister Kolberger disagrees, as this information
Speaker 1: was largely relied upon in various warrants, including the arrest warrant.
Speaker 1: Information relied upon to secure search and arrest warrants is
Speaker 1: necessary to conduct analysis of the Fourth Amendment issues. Further,
Speaker 1: the entirety of the information could include materials required under Brady,
Speaker 1: Idaho Criminal Rule sixteen covers broader area than the evidentiary
Speaker 1: rules of admissibility. Six Requests one twenty and one forty
Speaker 1: all tips received by law enforcement relating to this case.
Speaker 1: The state has provided various tips throughout discovery. However, they
Speaker 1: are scattered in pieces throughout the discovery. A complete and
Speaker 1: chronological list of all tips has not been proved. Seven
Speaker 1: Request one thirty six all audio recordings relating to all
Speaker 1: search warrants obtained in this matter. The state has responded
Speaker 1: that they are attempting to obtain this information. If it exists.
Speaker 1: The state will comply with this request upon receipt. The
Speaker 1: defense has been provided with all photograph of a DVD
Speaker 1: entered into evidence as item four thirty five twenty three
Speaker 1: M zero zero eight five labeled as sw audio There
Speaker 1: is also notation that this DVD was copied to County
Speaker 1: on one thirteen, twenty three, Number eight Request one sixty
Speaker 1: four body cam recordings, notes, photographs and all information collected
Speaker 1: at the autopsies by Tolasin, Vargas and Gunnerson. The State
Speaker 1: responded that they do not have these items in its possession.
Speaker 1: Clarification is needed on if they exist and are still
Speaker 1: in the possession of another agency. Council requests that this
Speaker 1: motion be set for hearing in order to present oral argument, evidence,
Speaker 1: and or testimony in support thereof. Requested time is twenty minutes.
Speaker 1: This was dated on June fifteenth of twenty twenty three
Speaker 1: and was signed by Ann Taylor. The next document we
Speaker 1: have is the objection to the motion to stay proceedings
Speaker 1: by the State of Idaho. Case number c R twenty
Speaker 1: nine DASH twenty two DASH twenty eight oh five. Objection
Speaker 1: to motion to state proceedings State of Idaho Plaintiff versus
Speaker 1: Brian Colberger. The defendant comes now the State of Idaho,
Speaker 1: by and through the Layta County Prosecuting Attorney, and objects
Speaker 1: to Defendant's motion to state proceedings for the following reasons.
Speaker 1: Defendant's motion should be denied background. On May sixteenth, twenty
Speaker 1: twenty three, defendant was indicted by a Leayta County grand
Speaker 1: jury of four counts of first degree murder and one
Speaker 1: count of burglary. Three days later, on May nineteenth, defendant
Speaker 1: filed the motion requesting release of grand jury materials under
Speaker 1: qualified protected order, motion to enlarge time to file pre
Speaker 1: trial motions, and motion to make available the record of
Speaker 1: all proceedings of the grand jury. On May twenty sixth,
Speaker 1: the state filed its response to Defendant's motion to enlarge time.
Speaker 1: The state noted that it did not object to Defendant's
Speaker 1: motion to enlarged time and went a step further by
Speaker 1: concurring in his request for additional time. On May thirtieth,
Speaker 1: the state filed its response to Defendant's motions regarding grand
Speaker 1: jury record and transcript and a proposed order for preparation
Speaker 1: and release of transcript and record of grand jury proceedings
Speaker 1: with conditions as noted in that response. The state had
Speaker 1: also provided a proposed stipulation to Defendant's council on May
Speaker 1: twenty fifth, after the parties were unabled to reach an
Speaker 1: agreement as to the scope of grand jury materials that
Speaker 1: would be subject to release. The State submitted its supplemental
Speaker 1: response to Defendant's motions regarding grand jury record and transcript
Speaker 1: on June sixth. On June thirteenth, the defendant filed a
Speaker 1: reply to state supplemental response to Defendant's motions regarding grand
Speaker 1: jury record and transcript, addressing the substantive legal arguments that
Speaker 1: State set forth in its June sixth supplemental response. Also
Speaker 1: on June thirteenth, the defendant filed a motion to stay proceedings.
Speaker 1: Defendant asserts that he intends to contest the indictment defense
Speaker 1: motion to stay Page two, and ask this court to
Speaker 1: stay the matter so that he may discover the grounds
Speaker 1: upon which to file a motion to dismiss related to
Speaker 1: the how the grand jury was selected Idaho at two
Speaker 1: and three. In his motion to stay, Defendant relies solely
Speaker 1: on Idaho Code Section two dash two thirteen.
Speaker 2: Argument.
Speaker 1: Defendant's reliance on Idaho Code Section two thirteen is misplaced.
Speaker 1: The statute provides that a party can request a stay
Speaker 1: in proceedings where there has been a substantial failure to
Speaker 1: comply with the applicable law in selecting the grand jury
Speaker 1: or trial jury. Idaho Code two dash two thirteen, Section one.
Speaker 1: Under section two two thirteen, a motion to stay must
Speaker 1: contain a sworn statement of facts which, if true, would
Speaker 1: constitute a substantial failure to comply with this chapter Idaho Code,
Speaker 1: Section two to thirteen. Only after the court determines that
Speaker 1: a substantial failure to comply has occurred can the matter
Speaker 1: be stayed upon the motion filed under the sub section
Speaker 1: one of the section containing a sworn statement of facts which,
Speaker 1: if true, would constitute a substantial failure to comply with
Speaker 1: this chapter. The moving party is entitled to present in
Speaker 1: support of the motion the testimony of the jury commissioner
Speaker 1: or the clerk, any relevant records in papers not public
Speaker 1: or otherwise available used by the jury commissioner or the clerk,
Speaker 1: and any of the relevant evidence. If the Court determines that,
Speaker 1: in selecting either a grand jury or a trial jury,
Speaker 1: there has been a substantial failure to comply with this chapter,
Speaker 1: the Court shall stay the proceedings pending the selection of
Speaker 1: the jury in conformity with this chapter, quash an indictment,
Speaker 1: or grant other appropriate relief. As the plain language of
Speaker 1: the statute makes clear, a moving party must make a
Speaker 1: factual showing of substantial failure to comply with the statute,
Speaker 1: and only after a court makes a finding that such
Speaker 1: failure to comply occurred can the court stay the matter.
Speaker 1: Defendant's motion is deficient because he did not include a
Speaker 1: sworn statement of facts, which, if true, would constitute a
Speaker 1: substantial failure to comply with this chapter. Rather than include
Speaker 1: a sworn statement with this motion, defended asserts in a
Speaker 1: footnote that mister Coberger will comply with filing a sworn
Speaker 1: statement of facts in accordance with I dot ce dot
Speaker 1: two Dash two thirteen, as soon as he has the
Speaker 1: grand jury record. By including this promise to file a
Speaker 1: sworn statement in the future, Defendant implicitly concedes that his
Speaker 1: motion is deficient at the present because defendant has failed
Speaker 1: to comply with this key requirement of Idaho Code section
Speaker 1: two Dash two thirteen, his motion should be denied. Conclusion,
Speaker 1: Defendant asks this court to put the cart before the horse.
Speaker 1: Stay the case now, and Defendant will give the court
Speaker 1: a basis for this day later. The Court should decline
Speaker 1: to adopt this backward reading of the requirements of Idaho
Speaker 1: Code section two Dash two thirteen. Defendant's motion should be denied,
Speaker 1: respectfully submitted this fifteenth day of June, and this was
Speaker 1: signed by William Thompson. All Right, folks, that's going to
Speaker 1: do it for this one. All of the information that
Speaker 1: goes with the episode can be found in the description box.
Speaker 1: What's up, everyone, and welcome back to the program. In
Speaker 1: this episode, we're gonna jump right back into those court
Speaker 1: documents and we're going to take a look at some
Speaker 1: of the new filings to hit the docket. The first
Speaker 1: filing we're going to look at is the defendant's third
Speaker 1: motion to compel discovery, Case number CR twenty nine DASH
Speaker 1: twenty two DASH zero zero zero two eight zero five,
Speaker 1: State of Idaho, Plaintiff versus Brian C.
Speaker 2: Coberger.
Speaker 1: The defendant comes now Brian C. Coberger, buying through his
Speaker 1: attorney and C. Taylor, public defender, and pursueant to Idaho
Speaker 1: Criminal Rule sixteen f. Hereby moves the Court to order
Speaker 1: the State to comply with the defendants third supplemental Requests
Speaker 1: for Discovery, filed herein on or about May second, twenty
Speaker 1: twenty three. Mister Coberger requests and order for the State
Speaker 1: to disclose the following items included in the Defendant's third
Speaker 1: supplemental requests for discovery standard lab discovery three profiles uploaded
Speaker 1: to a DNA database. In the event that the case
Speaker 1: involves the upload of a DNA profile to either a local,
Speaker 1: state or national database, please provide all documentation maintained by
Speaker 1: the testing laboratory, including documentation maintained by Combined DNA Index
Speaker 1: System CODIS personnel within the laboratory, including profiles that have
Speaker 1: been identified as unknown males not the defendant. Three dot
Speaker 1: one documentation of all uploads, including interpretation, end or deconvolutions
Speaker 1: of mixed profiles, handwritten notes, spreadsheets, match estimator results, upload
Speaker 1: and code IS search forms.
Speaker 2: Three dot two. For each hit, Please provide match.
Speaker 1: Detail reports and long form candidate match reports for the hits,
Speaker 1: including partial hits and hits that are dispositioned to be
Speaker 1: non matching, even if the laboratory has dispositioned a profile
Speaker 1: as a hit. Three dot three any state manuals regarding
Speaker 1: the use of the SDIS and NDIS database systems. Three
Speaker 1: dot four Any hits made to any profile uploaded, even
Speaker 1: if they hit on individuals not the defendant and deemed
Speaker 1: to not be candidate matches, including hits to any unknown
Speaker 1: males identified via testing. The state has provided information related
Speaker 1: to this request for the DNA on the snap of
Speaker 1: the knife sheath only. The defense has requested all DNA profiles,
Speaker 1: including additional pro files developed during the course of law
Speaker 1: enforcement investigation. See Declarations of Council for mister Coburger, Bicka Barlow,
Speaker 1: and Steve Mercer, filed simultaneously. Number six Communications. Please provide
Speaker 1: a copy of all communications between the laboratory personnel and
Speaker 1: any other party with regard to biological testing in this case,
Speaker 1: including letters, memos, emails, texts, and records of telephone conversations.
Speaker 1: These materials should include communications with regard to outsourcing of
Speaker 1: DNA testing, statistical calculations, and DNA profiles uploaded to a database.
Speaker 1: All emails, text messages, electronic messages or other messages have
Speaker 1: not been provided. See Declarations of Council for Mister Colberger,
Speaker 1: bick A, Barlow, and Steve Mercer, filed simultaneously. Unexpected Results
Speaker 1: and Corrective Actions for each laboratory that performed DNA testing
Speaker 1: in this case, please provide copies of the laboratory's logs
Speaker 1: of unexpected results and corrective actions. The logs should be
Speaker 1: provided for the time period beginning six months before the
Speaker 1: start of testing and ending six months after the completion
Speaker 1: of testing. Documentation should be provided for unexpected result events
Speaker 1: that arose due to mechanical, chemical, and or analyst operations,
Speaker 1: including contamination, the presence of extraneous DNA sample handling errors,
Speaker 1: or any other reason. The logs should be provided for
Speaker 1: all laboratory personnel, not just the analysts who perform the
Speaker 1: testing in this case. Please note this is a request
Speaker 1: for the logs themselves, not just for the entries within
Speaker 1: the logs that pertain to this case. Unexpected results and
Speaker 1: corrective actions were requested for the six months before and
Speaker 1: six months after testing related to the case. Only entries
Speaker 1: relating to the lab personnel in this case were provided.
Speaker 1: See Declarations of Council for mister Koberger, Bicka, Barlow, and
Speaker 1: Steve Mercer filed simultaneously. Genetic Genealogy Testing and Search. One
Speaker 1: all reports generated by any lab that conducted SNP testing
Speaker 1: on any sample in the case, including from samples where
Speaker 1: unknown mails not the defendant were identified. Two copies of
Speaker 1: all communications between laboratory personnel and any other person or
Speaker 1: organization with regard to the instant case, including letters memos, emails,
Speaker 1: internet posts, press releases, and records of other communications, including
Speaker 1: communications with regard to any DNA profile uploaded to any
Speaker 1: public or private DNA database.
Speaker 2: Three.
Speaker 1: All documentation associated with any database search, including but not
Speaker 1: limited to, codis, NDIS, gd match, family tree, DNA and
Speaker 1: or fell in databases, case simple databases, missing persons databases,
Speaker 1: and internal quality assurance databases. The documentation should include, but
Speaker 1: is not limited to, the input profile, the input search parameters,
Speaker 1: the search output, all reports, all correspondents, and any follow
Speaker 1: up actions. Number four All documents related to any genetic
Speaker 1: genealogy search, including but not limited to, the creation of
Speaker 1: a user profile, accounts, or account information, automated search results,
Speaker 1: uploading of data, all queries and search results from any
Speaker 1: private or public day data bank or data banks, family
Speaker 1: tree information, and all other documents, reports, notes, or other
Speaker 1: communications pertaining to genealogy, DNA database searches.
Speaker 2: Five.
Speaker 1: All documents related to any genetic genealogy investigation, including but
Speaker 1: not limited to, additional collection and door testing of DNA samples,
Speaker 1: notes of any interviews, documents obtained related to ancestry, and
Speaker 1: or recommendations for further testing. Number six All documents related
Speaker 1: to the comparison of any DNA samples collected during the
Speaker 1: genealogy investigation to crime scene evidence seven. The name and
Speaker 1: address of all persons found to have sufficient sharing sent
Speaker 1: a Morgans with the subject profile to be identified as
Speaker 1: a match in the report created. In this case, the
Speaker 1: State is objected to this discovery re request. Further, the
Speaker 1: State is file the motion for a protective order. Mister
Speaker 1: Coberger incorporates herein his objection to the State's motion for
Speaker 1: protective order, as well as declarations of council for mister Coberger,
Speaker 1: Picko Barlowe and Steve Mercer in support of Defendant's motion
Speaker 1: to compel. Council requests at this motion be set for
Speaker 1: hearing in order to present oral argument, evidence, and or
Speaker 1: testimony in support thereof. The requested time is ten to
Speaker 1: twenty minutes. This was dated on the twenty second of
Speaker 1: June of twenty twenty three and it was signed by
Speaker 1: Ann Taylor. The next document we have is the order
Speaker 1: to file defense counsels first sworn statement of facts in
Speaker 1: support of motion to state proceedings under seal. Try and
Speaker 1: say that three times fast State of Idaho Plaintiff versus
Speaker 1: Brian C. Coberger, the defendant. You made this the Court
Speaker 1: having before it the Defendant's motion defile Defense Council's first
Speaker 1: sworn statement of facts in support of motion to stay
Speaker 1: proceedings under seal and good cause appearing now. Therefore, it
Speaker 1: is hereby ordered that Defense Councils first sworn statement of
Speaker 1: facts in support of motion to stay proceedings shall be
Speaker 1: filed under seal pursuant to I Dot seed dot a
Speaker 1: dot R thirty two I one. This document was signed
Speaker 1: by Judge Judge and it was dated June twenty third
Speaker 1: of twenty twenty three. And the final document we have
Speaker 1: is the motion to temporarily seal Exhibit A of the
Speaker 1: proposed Order for preparation and release of transcript and Record
Speaker 1: of grand jury Proceedings with conditions. State of Idaho Plaintiff
Speaker 1: versus Brian Christopher Coberger, the defendant. The State of Idaho
Speaker 1: buy and, through the Leata County Prosecuting Attorney, respectfully moves
Speaker 1: the Court pursue into Idaho Court Administrative Rule thirty two
Speaker 1: G one, Idaho Criminal Rule six, and Idaho Code nineteen
Speaker 1: Dash eleven twelve and seventy four Dash one twenty four
Speaker 1: for a temporary order sealing Exhibit A attached to the Order
Speaker 1: for Preparation and Release of Transcript and Record of grand
Speaker 1: Jury Proceedings, with conditions herein to protect the confidentiality of
Speaker 1: the grand jury, and because release or disclosure would one
Speaker 1: interfere with enforcement proceedings, two deprive a person of a
Speaker 1: right to a fair trial or impartial adjudication, two constitute
Speaker 1: an unwarranted invasion of personal privacy, three disclose the identity
Speaker 1: of a confidential source, and or four disclose investigative techniques
Speaker 1: and procedures. The state seeks its protection pending a hearing
Speaker 1: on the matter. Wherefore, the State respectfully praise that the
Speaker 1: Court seal from public disclosure Exhibit A attached to the
Speaker 1: Order for Preparation and Release of Transcript and Record of
Speaker 1: grand Jury Proceedings, with conditions herein, under the provisions of
Speaker 1: Idaho Court Administrative Rule thirty two G one and Idaho
Speaker 1: Criminal Rule six end Idaho Code nineteen Dash eleven twelve
Speaker 1: D seventy four Dash one twenty four. Respectfully submitted this
Speaker 1: twenty third day of June twenty twenty three, and this
Speaker 1: was signed by William Thompson. All Right, folks, that's going
Speaker 1: to do it for this one. All of the information
Speaker 1: that goes with the episode can be found in the
Speaker 1: description box. What's up everyone, and welcome back to the program.
Speaker 1: In this episode, we're going to dive right back into
Speaker 1: those core documents and we're going to take a look
Speaker 1: at an C. Taylor's declaration in support of defendants third
Speaker 1: Motion to Compel Case number c r T twenty nine
Speaker 1: DASH twenty two DASH zero zero zero two eight zero five.
Speaker 1: State of Idaho Plaintiff first Brian C. Coberger, the defendant
Speaker 1: I and C. Taylor do state and declare one. Council
Speaker 1: for mister Colberger filed a specific request for discovery related
Speaker 1: to the DNA in this case, titled Defendant's third Supplemental
Speaker 1: Request for Discovery two. The State filed a specific response
Speaker 1: to that request. After reviewing the materials provided, the following
Speaker 1: remains to be discovered. A requests three profiles uploaded to
Speaker 1: a DNA database. The State has provided information related to
Speaker 1: this request for the seized item, the knife sheath only.
Speaker 1: The defense has requested all DNA profiles, including three additional
Speaker 1: unidentified mail DNA profiles developed during the course of law
Speaker 1: enforcements investigation. This information has not been supplied. B Request
Speaker 1: six Communications. The State has not provided all emails, text messages,
Speaker 1: electronic messages or other messages and conversations regarding biological testing
Speaker 1: in this investigation. C Requests nine to ten unexpected results
Speaker 1: and corrective actions. This request has been partially complied with. However,
Speaker 1: the response lacks the full scope of the request. Six
Speaker 1: months before and six months after testing related to this investigation,
Speaker 1: Further information relating to all lab personnel has not been provided.
Speaker 2: Three.
Speaker 1: Part of the third supplemental discovery request was for materials
Speaker 1: related to genetic genealogy testing A. The State is objected
Speaker 1: to this request in its entirety and has filed a
Speaker 1: mon for a protective order. Counsel for mister Colberger requests
Speaker 1: this Court consider the contemporaneous objection to the State's motion
Speaker 1: and declaration in support of the motion to compel. The
Speaker 1: requested discovery is properly sought. Pursuant to Idaho Criminal Rule sixteen.
Speaker 1: This discovery is necessary to the preparation of mister Coberger's defense.
Speaker 2: One.
Speaker 1: Council for mister Colberger has reviewed the materials provided in
Speaker 1: the case regarding the DNA testing laboratory reports, Bench notes
Speaker 1: and photographs. Further, experts in the field of genetic genealogy
Speaker 1: and DNA have consulted and offered information and guidance. The
Speaker 1: State acknowledges it used genetic genealogy testing in this case,
Speaker 1: but claims it does not have to produce the records.
Speaker 1: In the specific request for discovery. The defense disagrees two
Speaker 1: Council has learned through consultation with experts and sources reference below,
Speaker 1: that the use of genetic genealogy databases does not necessarily
Speaker 1: lead to a single individual as a potential suspect, and
Speaker 1: that reports of these searches often reference multiple individuals for
Speaker 1: further investigation and DNA testing. In fact, the state acknowledges
Speaker 1: such in its motion for protective order when it acknowledges
Speaker 1: hundreds of relatives Page five Motion for Protection Order. The
Speaker 1: testing conducted by a private lab is completely different in
Speaker 1: nature than the testing done by forensic labs. Genetic genealogy
Speaker 1: labs do not generate a profile in the same way
Speaker 1: that forensic labs do, and there cannot be a direct
Speaker 1: comparison between the data obtained in this case by the
Speaker 1: Idaho State Forensic Crime Lab and the private lab. The
Speaker 1: tests used by a private lab are either SNP single
Speaker 1: nucleotide polymorphisms or whole genome sequencing. These tests are similar
Speaker 1: to the methods used by commercial services such as twenty
Speaker 1: three and meters and ancestry dot com. Now you see
Speaker 1: why I added the beginner's Guide to DNA for people
Speaker 1: who might not have any idea what we're talking about.
Speaker 1: That'll give you a bit of a reference point.
Speaker 2: Three.
Speaker 1: Based upon information from experts in the field, I have
Speaker 1: learned that once a genetic genealogy profile is created and
Speaker 1: the testing by the private lab is completed, the profile
Speaker 1: is uploaded to a database that contains similar data from
Speaker 1: other individuals. Once the genetic genealogy profile is uploaded, the
Speaker 1: profile is compared within that database and relatives are identified.
Speaker 1: Number four. It is my understanding that once possible relatives
Speaker 1: have been identified, their identities are used to construct a
Speaker 1: family tree to identify possible suspects, using public records and
Speaker 1: in some instances contacting individuals for further family information. This
Speaker 1: process leads to a pool of individuals rather than one
Speaker 1: specific individual. The possibility of other relatives who might be
Speaker 1: similar to mister Colberger is extremely important to the defense
Speaker 1: in this case. The processes used in this method of
Speaker 1: identification may be extremely important to mister Colberger's defense. The
Speaker 1: timing and steps utilized are extremely important to mister Colberger's
Speaker 1: investigation and defense.
Speaker 2: Five.
Speaker 1: I have reviewed a copy of an Idaho State Police
Speaker 1: announcement dated July twenty eighth, twenty twenty one that the
Speaker 1: Idaho State Police Forensic Service Laboratory secured a grant the
Speaker 1: fung genetic genealogy testing for unsolved Idaho cases. See attached
Speaker 1: exhibit A. ISPFS contracted with Authroom Laboratories in Texas. The
Speaker 1: bad news for the defense here. Authroom is one of
Speaker 1: the premier laboratories in the business, and IFMS getting the
Speaker 1: results they're getting, chances are your client's cooked. Number six.
Speaker 1: The US Department of Justice issued its Interim Policy for
Speaker 1: Forensic Genetic Genealogical DNA Analysis and Search in twenty nineteen.
Speaker 1: The policy describes the process that law enforcement engages in
Speaker 1: during these searches and the results. In limitations of the method,
Speaker 1: the identified individuals are one or more genetic associations. That
Speaker 1: means that the door of the forensic or reference sample
Speaker 1: may be related to a service user emphasis added, which
Speaker 1: may require additional investigative work and testing. If a suspect
Speaker 1: is identified, the agency is required to retain all FGG profiles,
Speaker 1: account information, and data for potential use during prosecution and
Speaker 1: subsequent judicial proceedings. See attached Exhibit B number seven. A
Speaker 1: new collaborative, National Technology Validation and Implementation Collaborative was established
Speaker 1: in twenty twenty two. Its purpose is to collaborate and
Speaker 1: formulate methods and policy for labs and law enforcement to
Speaker 1: establish forensic investigative genetic genealogy programs. The collaborative contributed to
Speaker 1: a forensic science journal. The publication includes contributors from Idaho
Speaker 1: Rileyan nauln, Idaho State Police Forensic Services, and Alanaminton, Office
Speaker 1: of the Attorney General, State of Idaho. This publication includes
Speaker 1: reference to the aforementioned US Department of Justice interim policy.
Speaker 1: Of particular note is the policy of release of information
Speaker 1: in accordance with rules of discovery. See attached Exhibit C
Speaker 1: number eight. I am aware of specific news reports in
Speaker 1: this case regarding mister Coberger's DNA, as published by the
Speaker 1: New York Times on June eleventh, twenty twenty three, that
Speaker 1: FBI personnel work with the profile that ATAM had produced.
Speaker 1: Spending days building out a family tree that began with
Speaker 1: distant relatives. Number nine, The New York Times source have
Speaker 1: more information than the State has disclosed to the defense.
Speaker 1: This New York Times article generated intense media coverage and interest,
Speaker 1: the scope of which is explained in the true Scope
Speaker 1: report attached as Exhibit D Number ten. In addition, mister
Speaker 1: Coberger's defense team has discussed the use of stats in
Speaker 1: this type of case with experts who have informed me
Speaker 1: that the manner of identifying mister Coburger via this type
Speaker 1: of search may have significant impacts on the statistical analysis
Speaker 1: of the CODIS profile generated by the Idaho State Police Lab.
Speaker 2: Without access to the actual.
Speaker 1: Genetic genealogy search methods and results, it is impossible for
Speaker 1: qualified experts to address these issues. Number eleven. Council for
Speaker 1: mister Colberger notes that the state utilized a statistical analysis
Speaker 1: number to claim a high likelihood of a match between
Speaker 1: the DNA on the sheath and that of mister Coburger.
Speaker 1: The State, by its own admission, has taken a number
Speaker 1: of steps to identify mister Coberger as a match. The
Speaker 1: statistical probability is not an absolute. The size of comparison
Speaker 1: sample and the nature of the search are important to
Speaker 1: ascertain conclusion bias. And finally, number twelve, mister Coberger has
Speaker 1: a right to effective assistance of council. He has a
Speaker 1: right to front evidence. Counsel must undertake a thorough investigation
Speaker 1: of all parts of the case the state brings against
Speaker 1: mister Coberger. As such, the genetic genealogy investigation and process
Speaker 1: is necessary for the defense team to do its job.
Speaker 1: I declare, under penalty of perjury, that the foregoing is
Speaker 1: true and correct, and that those matters stated upon information
Speaker 1: and belief are true to the best of my knowledge.
Speaker 1: Dated this twenty second day of June and signed by
Speaker 1: Anne Taylor. All right, folks, that's gonna do it for
Speaker 1: this one. All of the information that goes with this
Speaker 1: episode can be found in the description box. Hello, what's
Speaker 1: up everyone, and welcome back to the program. In this episode,
Speaker 1: we're going to dive back into the Murder in Moscow
Speaker 1: court documents and take a look at some of the
Speaker 1: orders and various filings from the past few days. So
Speaker 1: let's just dive right in and get started. The first
Speaker 1: document that we have is the State supplemental response to
Speaker 1: defendants fourth Supplemental request for discovery Case number c R
Speaker 1: twenty nine DASH twenty two DASH twenty eight oh five
Speaker 1: State of Idaho Plaintiff first Brian C. Coberger, the defendant
Speaker 1: to the defendant Brian Christopher Coburger and Council and Taylor
Speaker 1: comes now the State of Idaho buy and through the
Speaker 1: Lata County Prosecuting Attorney, and submits the following supplemental response
Speaker 1: to the defendant's fourth supplemental requests for discovery filed on
Speaker 1: June sixteenth, twenty twenty three, which is attached as Exhibit one.
Speaker 1: The State incorporates its January twenty third, twenty twenty three.
Speaker 1: State's response to request for discovery dated February twenty first,
Speaker 1: twenty twenty three. State's response to defendant's first supplemental request
Speaker 1: for discovery dated March twenty ninth, twenty twenty three. State
Speaker 1: response to Defendant's second supplemental requests for discovery dated May twelfth,
Speaker 1: twenty twenty three. State's response to Defendant's third supplemental request
Speaker 1: for discovery dated May twelfth, twenty twenty three. State's response
Speaker 1: to Defendant's motion to compel discovery dated June eighth, twenty
Speaker 1: twenty three. State supplemental response to defendants first, second, and
Speaker 1: third supplemental requests for discovery dated June sixteenth, twenty twenty three,
Speaker 1: and State response to defendants fourth supplemental requests for discovery
Speaker 1: as if fully set fourth. At this point, the State
Speaker 1: has and will continue to provide discovery in accordance with
Speaker 1: Idaho Criminal Rule sixteen and applicable law. This was signed
Speaker 1: by Ashley Jennings. The next document we have is the
Speaker 1: Order Clarifying meaning of Agents and revised a Mended non
Speaker 1: Dissemination Order, Case number twenty nine Dashed twenty two DASH
Speaker 1: twenty eight oh five, State of Daho Plaintiff first Brian C. Coberger,
Speaker 1: the defendant. On June twenty third, twenty twenty three, the
Speaker 1: Court issued or revised Amended non Dissemination Order revised Order.
Speaker 1: Accompanying the revised order were two lengthy opinions, Order denying
Speaker 1: Shannon Gray's request to be exempt from the amended non
Speaker 1: dissemination Order and granting request that the order be clarified,
Speaker 1: and Order denying the Associated Press's motion to vacate the
Speaker 1: amended non dissemination Order. In this Court's view, those opinions
Speaker 1: made clear that agents of attorneys involved in the case,
Speaker 1: including law enforcement, could have and would have their speech
Speaker 1: regulated under the revised Amended Non Dissemination Order. However, following
Speaker 1: the issuance of this decision and the revised order, the
Speaker 1: Court took judicial notice of some news articles stating that
Speaker 1: law enforcement were no longer bound by the revised order.
Speaker 1: In an effort to clarify that misunderstanding, this Court issues
Speaker 1: the following guidance. The revised order applies to the prosecuting attorneys,
Speaker 1: defense attorneys, any agents of the prosecuting attorneys and defense attorneys,
Speaker 1: and any attorneys representing witnesses, victims, or the victim's families.
Speaker 1: These individuals are not completely barred from speaking about the case,
Speaker 1: but must adhere to the restrictions on their speech imposed
Speaker 1: by the revised order. Agent is defined as someone who
Speaker 1: is authorized to act for or in place of another,
Speaker 1: a representative agent. Black Laws Dictionary, eleventh edition, twenty nineteen.
Speaker 1: Agents of the prosecuting attorneys include law enforcement working on
Speaker 1: this case or privy to confidential information involving the case.
Speaker 1: Investigators hired by the defense are agents of the defense.
Speaker 1: This is because those indo visuals are working at the
Speaker 1: direction of the attorneys to investigate the case, interview witnesses,
Speaker 1: and gather evidence. Stated differently, law enforcement and defense investigators
Speaker 1: are acting representatives of the attorneys. The attorneys have the
Speaker 1: authority to direct certain actions of those individuals when it
Speaker 1: comes to building their case for trial. Other agents include
Speaker 1: staff in the prosecutors and defense attorney's offices and expert witnesses.
Speaker 1: This order does not change anything in the revised order,
Speaker 1: but merely helps to further clarify who the revised order
Speaker 1: applies to. This was signed by Judge Judge and it
Speaker 1: was dated June twenty ninth of twenty twenty three. The
Speaker 1: next document we have is the Order on Defendants Second
Speaker 1: Motion to Compel Discovery Case number CR twenty nine DASH
Speaker 1: twenty two DASH twenty eight oh five, State of Idaho
Speaker 1: plaintiff versus Brian C. Coberger, the defendant. On June fifteenth,
Speaker 1: twenty twenty three, defendant Bryan C. Coburger filed defendant second
Speaker 1: motion to compel discovery. Oral argument on the motion was
Speaker 1: heard on June twenty seventh, twenty twenty three. Coburger was
Speaker 1: represented by Ann Taylor and Jay Logsden, Cootney County Public
Speaker 1: Defender's Office and Alissa maysof. The State was represented by
Speaker 1: William Thompson Junior and Ashley Jennings Letai County Prosecutor's Office,
Speaker 1: and Ingrid Beatty and Jeff Nye, Office of the Attorney General.
Speaker 1: At the outset of the hearing, the parties informed the
Speaker 1: court that they had reached agreements on all issues except
Speaker 1: Requests one four and one oh nine. During the hearing,
Speaker 1: the State represented that they are working with the FBI
Speaker 1: to obtain the information requested and would provide it to
Speaker 1: the defense once it was received and reviewed. The defense
Speaker 1: moved the court to impose a deadline for the materials
Speaker 1: to be turned over to the court, and the parties
Speaker 1: agreed that July fourteenth, twenty twenty three was reasonable. Therefore,
Speaker 1: the court order is the following. The State shall provide
Speaker 1: the Defense the materials requested in Requests one four and
Speaker 1: one oh nine of defendant second Motion to compel Discovery
Speaker 1: no later than July fourteenth, twenty twenty three, unless the
Speaker 1: State demonstrates good cause for an extension of time to
Speaker 1: turn over the requested material. Dated this twenty ninth day
Speaker 1: of June twenty twenty three and signed by Judge Judge.
Speaker 2: Moving on to the next document.
Speaker 1: We have the order on Defendant's motion to compel discovery
Speaker 1: Case number c R twenty nine DASH twenty two DASH
Speaker 1: twenty eight oh five, State of Idaho Plaintiff versus Bryan C. Coburger,
Speaker 1: the defendant. On May fourth, twenty twenty three, Defendant Bryan C.
Speaker 1: Coburger filed a motion to compel discovery stemming from defendant
Speaker 1: twos second supplemental requests for discovery filed on March twenty fourth,
Speaker 1: twenty twenty three. Oral arguments on the motion was heard
Speaker 1: on June twenty seventh, twenty twenty three. Colberger was represented
Speaker 1: by Ann Taylor and Jay Logsden Cootney County Public Defender's
Speaker 1: Office and Alyssa Masov. The State was represented by William
Speaker 1: Thompson Junior and Ashley Jennings Leta County Prosecutor's Office, and
Speaker 1: Ingrid Beatty and Jeff nine, Office of the Attorney General.
Speaker 1: At the outset of the hearing, the parties informed the
Speaker 1: court that they had reached agreements on all issues except
Speaker 1: Request one sixty. Requests one sixty asked the state to
Speaker 1: provide the defendant training records of three specific law enforcement
Speaker 1: officers Idaho criminal Rule sixteen B four states that papers
Speaker 1: and documents that are material to the preparation of the
Speaker 1: defense that are in the possession, custody, or control of
Speaker 1: the prosecuting attorney are discoverable. Additionally, Rule sixteen B ten
Speaker 1: allows the court to order material and information be made
Speaker 1: available to a defendant where the defendant shows substantial need
Speaker 1: and preparation of the defendant's case for additional material or
Speaker 1: information not otherwise covered by Rule sixteen, and that the
Speaker 1: defendant is unable without undue hardship, to obtain the substantial
Speaker 1: equivalent by other means. During oral argument, the defense argued
Speaker 1: that it needs the training records for the three specific
Speaker 1: officers identified in their request to understand the processes and
Speaker 1: methods the officers utilize. Specifically, the defense wants to see
Speaker 1: what training these officers have received in interviewing witnesses and
Speaker 1: collecting and evaluating evidence. The defense argued that the three
Speaker 1: officers identified each played a critical role in the investigation
Speaker 1: of this case. One officer interviewed witnesses at the scene
Speaker 1: of the crime and worked on the search for a
Speaker 1: specific car of interest. The second officer interviewed key witnesses
Speaker 1: expected to testify at trial. The defense expects to subpoena
Speaker 1: this officer for trial. Finally, the third officer conducted multiple
Speaker 1: interviews of key witnesses after Coberger was arrested, attended the
Speaker 1: victims' autopsies, and made decisions about what tips provided to
Speaker 1: law enforcement warranted further investigation. The state argued that the
Speaker 1: three officers identified are not material to the state's case
Speaker 1: and will not be called a trial. Further, the state
Speaker 1: argued that the defense has not shown a substantial need
Speaker 1: for the information requested. In State vs. Coohagen, one sixty
Speaker 1: two Idaho seven seventeen seven twenty five four h four
Speaker 1: page dot three D six fifty nine six sixty seven,
Speaker 1: twenty seventyen, the Idaho Supreme Court, in applying the attenuation doctrine,
Speaker 1: discussed how the training that law enforcement officers received regarding
Speaker 1: law of search and seizure should play a role in
Speaker 1: evaluating the flagrancy of their behavior. Similarly, courts have required
Speaker 1: the government to disclose relevant canine training and certification records
Speaker 1: to allow defendants to assess the canine's reliability and effectively
Speaker 1: cross examined the dogs handler c. United States Verse Right,
Speaker 1: number two zero eight dash cr dash five dash zero
Speaker 1: two two zero zero eight w L eight seven nine
Speaker 1: seven eight four one at three D DOT, Vermont, November three,
Speaker 1: two thousand and eight, citing United States at Verse Sadano
Speaker 1: Ariano three thirty two f Dot three D five sixty
Speaker 1: eight five seventy one, Ninth Circuit, two thousand and three,
Speaker 1: by the way of this Court's one experience. When testifying
Speaker 1: at pre trial hearings or a trial, officers often based
Speaker 1: their testimony on their training and experience. Here, the three
Speaker 1: officers training records requested by the defense are material to
Speaker 1: the preparation of the defense, and Coberger has established a
Speaker 1: substantial need for the material in the preparation of his case. First,
Speaker 1: the defense adequately articulated the role each of these officers
Speaker 1: played in interviewing witnesses and finding and collecting potential evidence. Second,
Speaker 1: the training records of these officers are potentially relevant to
Speaker 1: a suppression issue like in Kohagen, or to challenge the
Speaker 1: credibility of the officers and the reliability of their methods,
Speaker 1: similar to the training records of canine officers. Other potential
Speaker 1: uses for the training records include to help prepare the
Speaker 1: defense for examination or cross examination of the officers at trial,
Speaker 1: or to help established or challenge a foundation for admissibility
Speaker 1: of evidence gathered by those officers at trial. While generally
Speaker 1: all personnel records of a current or a former public
Speaker 1: official are exempt from disclosure under the Public Records Act
Speaker 1: I dot C. Section seventy four Tosh one oh six,
Speaker 1: public disclosure of the personnel records sought here can be
Speaker 1: prevented by the issuance of a protective order stipulated by
Speaker 1: all parties. Therefore, the court order is the following. The
Speaker 1: State shall provide the defense the training records requested in
Speaker 1: Request one sixty of defendant second Supplemental Requests for Discovery
Speaker 1: and Motion to compel discovery no later than July fourteenth,
Speaker 1: twenty twenty three, unless the State demonstrates good cause for
Speaker 1: an extension of time to turn over the requested material. Further,
Speaker 1: the parties shall provide the court with a stipulation for
Speaker 1: a protective order and a proposed protective order for the
Speaker 1: training records. This was dated on June thirtieth, twenty twenty three,
Speaker 1: and it was signed by Judge Judge. All Right, folks,
Speaker 1: that's going to do it for this one. All of
Speaker 1: the information that goes with the episode can be found
Speaker 1: in the description box.