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By Jean Casarez, CNN
(CNN) — Bushy eyebrows. DNA on a knife sheath. Amazon purchase records.
The evidence that Judge Steven Hippler is allowing prosecutors to admit in the death penalty trial of Brian Kohberger is substantial.
Defendants in other high-profile death penalty cases have been down Kohberger’s road, faced with potentially making a life-or-death decision before a jury does it for them. Take a plea deal if prosecutors will agree and avoid a potential death sentence or go to trial?
Some defendants don’t want to take the risk of being sentenced to death so they plead guilty to murder charges and agree to live the rest of their life in state prison. Others assert their innocence and hope the strength of the defense will show reasonable doubt is on their side, so they go to trial.
Prosecutors aren’t required to entertain a plea deal to bargain away the death penalty but often they do.
Whether Kohberger is actually considering a plea deal in the killing of four University of Idaho students on November 13, 2022, is unknown. Not guilty pleas have been entered on his behalf.
The brutality of the killings of Madison Mogen, Kaylee Goncalves, Xana Kernodle and Ethan Chapin at an off-campus home in Moscow, Idaho, and the lack of clarity on Kohberger’s potential connections to the group of friends have made it one of the highest-profile cases in the US.
Due to a wide-ranging gag order, prosecutors, defense lawyers, and attorneys for victims’ families and witnesses are prohibited from saying anything publicly, aside from what is already in the public record.
How other defendants played it
In Idaho just last year, Chad Daybell was facing the death penalty, charged with murder and conspiracy to commit murder in the deaths of his first wife and the two children of his current wife. The killings took place in small-town communities in Idaho, but the trial was moved to Boise to ensure Daybell’s right to a fair and impartial jury. For similar reasons, Kohberger’s trial was moved from Moscow to Boise.
Daybell decided to proceed to trial.
Last May he was convicted of all murder charges during the guilt phase of the trial. During the penalty phase, the jury found all aggravating factors beyond a reasonable doubt. He was then sentenced to death.
Notorious serial killer Gary Ridgway, also known as the Green River Killer, pleaded guilty in Washington State in June 2003 to 48 counts of aggravated murder in exchange for prosecutors not seeking the death penalty.
For his part, Ridgway had to provide complete truthful and candid information concerning his crimes and had to provide a written statement to the court describing what he did to all 48 victims and why. The prosecutor read the statement in court at sentencing.
Scott Peterson, accused of murdering his wife, Laci, and their unborn son, Conner, in central California in 2003, was offered a plea bargain early on in lieu of seeking the death penalty if he would tell them where the victims were.
He refused, maintaining his innocence, according to local prosecutors at the time, so they filed notice of intent to seek death.
Peterson was convicted for the murders in 2004, with the jury recommending death. He was sentenced in 2005 and put on death row in California. His death sentence was overturned in 2020 because of a jury issue. The next year, Peterson was resentenced to life in prison without the possibility of parole. He is still seeking to get his conviction overturned.
In Florida, Casey Anthony was charged with first-degree murder in the death of her daughter Caylee. Indicted in 2008, prosecutors announced in 2009 they would be seeking death.
Anthony decided to proceed to trial. During the course of the trial, she was offered a plea to get death off the table. She refused the offer and ultimately was acquitted of all major charges by a unanimous jury.
Jurors must be willing to vote for death
In the Kohberger case, the judge has denied the defense team’s two motions to strike the death penalty, one on Kohberger‘s autism spectrum disorder diagnosis, and the other on a voluminous amount of discovery that defense attorneys say they can’t begin to look at because there isn’t time. The trial is in August, with jury selection beginning the end of July.
When prosecutors in June 2023 filed notice of intent to seek the death penalty, they alleged aggravating factors warranting death, which included the fact there were multiple victims, that the killings were heinous, atrocious and cruel and that the defendant would be a continuing threat to society.
As a result, before the trial itself begins this summer, during jury selection there will be an added layer to the process.
Selected jurors must be death qualified, meaning they are willing to vote for death after convicting Kohberger if they believe beyond a reasonable doubt that aggravating factors exist which warrant the ultimate punishment.
For a defendant considering how to proceed in a criminal trial, it is all about reasonable doubt. Reasonable doubt can lead to an out-and-out acquittal or even a mistrial, which can be a gift to the defendant if prosecutors decide to not try the case again.
DNA evidence key to prosecution’s case
Key evidence for prosecutors is the single source DNA found from a knife sheath found on a bed close to Mogen.
The single source profile was determined to be male and the probable identity of the DNA came from investigative genetic genealogy, which is the process of taking unknown DNA to public databases and finding relatives that share the profile.
Old-fashioned investigative work follows, looking at age, geographical location, and gender of relatives. That can determine a possible source of the unknown, genetic material.
In this case, the FBI did the testing along with some investigation early on, and the results culminated into the tip that led Idaho investigators to a Ph.D student in criminology at nearby Washington State University named Kohberger.
Doing forensic DNA testing from trash outside the Kohberger family home in northeastern Pennsylvania in December 2022 gave Idaho law enforcement the probable cause to arrest Kohberger.
A DNA profile obtained from the trash “identified a male as not being excluded as the biological father of the Suspect,” according to the probable cause affidavit.
Once that testing was confirmed, Kohberger was arrested in December 2022.
According to legal filings, buccal swab DNA testing from Kohberger himself, following the arrest, proved to be a “statistical match” to the DNA on the knife sheath.
Both sides have agreed they do not want the jury to hear about the genetic genealogy process in this case, but that it will only be referred to before the jury as a tip.
But the single source DNA identification on that KA-BAR knife sheath will come into evidence.
Legal documents give a preview on how the defense will counter this by questioning when and how the DNA on the sheath was transferred there.
DNA found under the nails of one of the victims has been determined to be inconclusive as to the defendant, a plus for the defense.
Amazon purchase records evidence allowed at trial
Along with DNA, the judge is also allowing purchase records of the alleged murder weapon.
Eight months before the killings, Kohberger purchased on Amazon a knife, sheath, and sharpener made by the same company as the KA-BAR sheath found at the crime scene, according to prosecutors’ court filings.
In a recent hearing, Judge Hippler noted the purchase was made under Kohberger’s name, and after the purchase searches were made on the Amazon account to find out where the items were during the shopping and delivery process.
After the homicides, on the same Amazon account, the purchaser looked at “knives” again, according to documents and oral arguments during a recent pre-trial hearing.
While the defense argued to keep this Amazon click activity out of the trial because the account is a family account, the judge responded by saying the purchase was under Kohberger’s particular name on the account and the evidence would come in.
Hippler is allowing the account’s click activity pertaining to knives and knife accessories, the payment method used, and details of items in the cart, including all items added to the cart and removed from the cart or wish listed in the shopping bag. The defense can cross-examine using an expert on the Amazon activity and purchases.
‘Bushy eyebrows’ testimony allowed
Another critical piece of evidence involves the identity of the attacker, who prosecutors allege is Kohberger.
One of the two surviving roommates in that home in the early morning hours of November 13, 2022, stepped out of her bedroom at that time and, according to the probable cause affidavit, “saw a figure clad in black clothing and a mask that covered the person’s mouth and nose walking towards her.”
The surviving roommate, identified as D.M., described the figure as 5 feet, 10 inches or taller, male, not very muscular, but athletically built with bushy eyebrows, according to the affidavit.
The defense at a recent hearing fought hard to keep that description out, especially “bushy eyebrows,” because they argued the roommate did not originally give that information to law enforcement. It didn’t come out until the second interview with police and one of the detectives asked her about the man’s eyebrows. D.M. did not independently bring it up.
The judge disagreed, allowing the witness to testify about it.
According to prosecutors, later on that morning, at 10:30 a.m., Kohberger took a close-up picture of himself in a bathroom. The jurors will be allowed to consider this photo and assess his eyebrows themselves.
Law restricts alibi defense
The judge has determined that an alibi instruction to the jury will not be given at the end of trial, unless the defendant can bring to the court more substantial evidence of an actual alibi.
Carving out an alibi has been difficult for the Kohberger defense because they have consistently maintained their client was out driving alone during the early morning hours of November 13, 2022.
The defense has offered an expert witness who would testify using location data from phone records to show approximately where the defendant was driving during some of those hours.
Hippler responded asking what witnesses were going to say, “He’s driving around looking at the stars?” The judge insisted to the defense, “You have to have someone testify to that.”
The judge determined the defense expert will be able to show that Kohberger was at a certain place until 2:50 a.m. That is when his phone was turned off, a little more than an hour before the killings took place.
The only other way for information to come in after that 2:50 a.m. phone shut off would be for Kohberger himself to take the stand.
Under Idaho law, before trial, a defendant must provide not only the specific place they were during the time the crimes were being committed but also names and addresses of those who saw the defendant at that alternate location.
Defense floats alternate suspect theory
Lead defense attorney Anne Taylor said at that hearing in April they are planning to call an expert witness who will say it’s likely that two people committed the crime with two weapons.
Taylor 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 is 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…”
Kohberger’s legal team has previously said it plans to present evidence of alternate perpetrators ahead of trial.
Hippler has said there will be a May deadline for the defense to present that evidence because waiting for it to come up at trial would be too late. At this time nothing has been filed by the defense in the court’s docket.
No one can accurately predict what will happen in a trial. Jurors are selected based on their word that they can be fair and impartial in looking at the evidence.
But the emotion within those four walls of that Boise courtroom coming from the reality that four young lives were taken right as they were beginning their adulthood may be as strong a force as the evidence heard.
Kohberger, however, has a presumption of innocence under the Constitution, and reasonable doubt also can be a strong force in the mind of a juror as they deliberate.
As Taylor said to the court during the change of venue hearing last year, Kohberger “is innocent, your Honor, but it’s the country that has decided he is guilty.”
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Jean Casarez is a licensed attorney in Texas and Nevada. She is CNN’s trial correspondent.
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