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By Lauren del Valle and Jean Casarez, CNN
(CNN) — A judge in Idaho is set to make decisions about what evidence can and cannot be submitted at the upcoming death penalty trial of Bryan Kohberger, who’s accused of murdering four University of Idaho students in November 2022.
Kohberger faces four counts of first-degree murder in the deaths of Madison Mogen, Kaylee Goncalves, Xana Kernodle and Ethan Chapin at an off-campus home in Moscow, Idaho. Not guilty pleas have been entered on his behalf.
In a marathon hearing Wednesday, Judge Steven Hippler heard arguments from both sides about evidence they think the jury should or should not see at Kohberger’s trial, which is set to start in August.
Issues at the heart of Wednesday’s arguments included defense theories on alternate suspects, Kohberger’s Amazon purchase history and his autism spectrum disorder diagnosis.
The judge made a few decisions during the hearing, but said he will issue final rulings on a collection of outstanding motions in written orders soon. The parties are due back in the courtroom for a pretrial hearing May 15.
Here’s what we learned from the nearly eight-hour hearing:
A tip says they have the wrong guy, defense says
Lead defense attorney Anne Taylor said at the hearing that she’s planning to call an expert witness who will say it’s likely that two people committed the crime with two weapons.
She didn’t expand on the theory but later said she’s also chasing a lead on an alternate suspect.
The lead was buried in thousands of tips collected by law enforcement that Taylor said she’s still combing through.
“We came across a tip that would appear to be an alternate suspect and we’re trying to work through that as rapidly as we can,” Taylor said. “It was quite a surprise to come up with that. There’s got to be more in there that I need to know were disclosed.”
The tip was brought up as Taylor argued that the judge should take the possibility of the death penalty off the table for Kohberger because there’s too much discovery that the defense team can’t get through before the August trial.
Kohberger’s legal team has previously said it plans to present evidence of alternate perpetrators ahead of trial. On Wednesday, Hippler said he’ll set a May deadline for the defense to present that evidence because waiting for it to come up at trial would be too late.
Prosecutors can show Amazon knife purchase at trial
State prosecutors are expected to present trial evidence that Kohberger’s DNA was recovered on a knife sheath found on the bed next to Mogen’s body at the crime scene.
Judge Hippler said Wednesday over defense objections that the government can call an expert witness to testify about Amazon data they say reveals that Kohberger bought a knife with a sheath and sharpener made by the same company as the sheath found at the crime scene. The expert can also address a product search for the same items soon after the murders.
He also said the defense can make its own assertions to the jury that the online shopping data for the account, which Kohberger shared with others, could show the items were bought by someone else.
“The defense is entitled to challenge the data in terms of does it really show who bought it, what else did they buy, in what circumstances,” Hippler said.
Jury may not hear ‘bushy eyebrows’ description
One of the surviving roommates, Dylan Mortensen, who has said she saw a masked man wearing all black in the home around the time of the murders, described the intruder as having “bushy eyebrows.”
Kohberger’s defense team on Wednesday called her an unreliable eyewitness, arguing prosecutors shouldn’t be able to mention that description because Mortensen’s recollection has been inconsistent, muddied by intoxication and post-event media exposure.
Mortensen didn’t initially mention the description until law enforcement asked her if she recalled anything about the person’s eyebrows in her second police interview, defense attorney Elisa Massoth said.
Mortensen has also acknowledged to law enforcement that she had been drinking since the morning that day and has said she “felt like she was in a dream state, frozen shock, fuzzy and cloudy,” Massoth said.
Prosecutors have stressed the importance of Mortensen’s testimony as the only living person to see the intruder.
“(Mortensen) is the only living individual who saw the person responsible for these four homicides,” prosecutor Ashley Jennings said Wednesday. “Her description of the male, including any characteristics, including bushy eyebrows is relevant to the identity of the killer. It is prejudicial, but it’s not unfair.”
The judge said he’d have to think about it.
The attorneys also debated what cell phone activity from Mortensen and the other surviving roommate, Bethany Funke, in the hours around the murders should come in at trial. The defense, echoing previous court filings, said the judge should consider all the data that shows the two were on their phones for hours before they eventually called 911 just before noon November 13, 2022.
The judge did not make a ruling but said he wants to hear the expected trial testimony from Mortensen and Funke. He also acknowledged that people in their age group use social media to communicate more than older generations and that should be considered.
“My experience with that age group has shown that where you or I might phone somebody, others might check out their social media to see where they’re at or what they’re doing … and so understanding how they’re using those apps is also important,” Hippler said.
The judge also said he’ll likely allow the jury to hear most of the emotional 911 call Mortensen and Funke made with two other friends who came over to help them that morning.
Kohberger’s autism spectrum disorder might come into play
Kohberger’s defense team wants to tell the jury that he has autism spectrum disorder during opening statements in the first phase of the trial – a condition they say will explain what might be perceived as odd behavior as he sits at the defense table.
“Aside from his flat affect, piercing stare, stiffness, holding still, when emotional evidence or picture evidence comes in that a neurotypical person will react to he will not react, and that is only because he has a physical disability that prevents a neurotypical reaction. It would be unfair for him to be judged for that, given his disability,” Massoth said.
Autism spectrum disorder is a neurological and developmental disorder that can affect how people interact with others, communicate, learn and behave, according to the National Institute of Mental Health.
His diagnosis is expected to come into play during the penalty phase, should the jury convict him, but his lawyers say the panel needs the information to decide if he’s guilty.
Prosecutors disagreed, and though the judge said he understood the defense’s concern, he wasn’t sure how to approach the issue given legal precedent.
A jury is typically instructed only to consider evidence presented at trial and the credibility of witnesses who take the stand – which implies they shouldn’t consider anything about Kohberger’s demeanor at the defense table.
His attorneys have repeatedly said it’s unlikely that he’ll take the stand in his own defense because of his diagnosis.
The defense has also said Kohberger’s autism diagnosis should disqualify him from the death penalty. “He has no ability to understand and help us develop a case for him for mercy,” Massoth said.”
She argued that his behavior in the courtroom could get him sentenced to death.
“This is important because of the impact that jurors assign and give tremendous weight to perceived remorse or the lack thereof,” Massoth argued.
Prosecutors opposed the motion, pointing to a lack of legal precedent. Hippler said he’d take the matter under advisement and issue a written opinion.
Kohberger wants his family at trial, but they might be witnesses
Kohberger wants his parents and two sisters in the courtroom for his capital trial, but prosecutors have said they may call some of them as witnesses.
The state hasn’t said who they plan to subpoena, but if the relatives are subpoenaed, they would not be allowed to sit in the courtroom listening to trial evidence until they take the stand – something the defense has warned could prevent them from supporting Kohberger in court if they are called late in the trial.
The presence of Kohberger’s family in the courtroom could be an important signal to jurors that the suspect has a support system, Elisa Massoth said.
“From the minute this trial begins, the jury is going to study Mr. Kohberger and they are going to figure out who is in this courtroom sitting behind him to support him,” Massoth said, noting the family “has no desire to be used as witness against him.”
The judge asked prosecutors to consider “humanity” as they plan their case. He suggested any of Kohberger’s relatives could be called early in the trial – which is expected to take at least three months – so they could sit in the courtroom for the majority of the proceedings after they’ve testified.
“I can only imagine the family of Mr. Kohberger is devastated by these things,” Hippler said. “I think their ability to be here to see the trial is important.”
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