Court Filing
Electronically Filed 3/10/2025 4:00 PM Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court By: Jennifer Keyes, Deputy Clerk LATAH COUNTY PROSECUTOR'S OFFICE WILLIAM W. THOMPSON, JR., ISB No, 2613 PROSECUTING ATTORNEY JEFF NYE, ISB 9238 SPECIAL ASSISTANT ATTORNEY GENERAL Latah County Courthouse 522 S. Adams Street, Ste. 211 Moscow, ID 83843 Phone: (208) 883-2246 ISB No. 2613 paservice@latahcountyid.gov IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA STATE OF IDAHO, Case No. CR01-24-31665 Plaintiff, STATE'S RESPONSE TO V. DEFENDANT'S MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE BRYAN C. KOHBERGER, Defendant. COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and responds to Defendant's Motion in Limine regarding investigative genetic genealogy (“ IGG ”). The defense's motion rests on inaccurate factual assertions and an erroneous legal standard. Nevertheless, the State does not object to — and has in fact also moved for the exclusion of the IGG information at trial. FACTS In June 2023, the State moved for “ an order protecting the information related to the use STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE 1 of IGG in this case, ” including “ [t] he raw data related to the SNP profile and the underlying laboratory documentation related to the development of the profile, such as chain of custody forms, laboratory standard operating procedures, analyst notes, etc. ” (Motion for Protective Order, p.7, filed 6/16/2023.) The State argued the IGG information did not fall within Rule 16 of the Idaho Criminal Rules because it was used only as a tip and the State “ has no plans to present the IGG information for which a protective order is sought as evidence at trial, ” other than having an investigator testify “ only that they received a tip pointing law enforcement to Defendant. ” Id. at 12-13 & n.6. The State suggested that the Court review the IGG information in camera to determine what, if any, of the IGG information should be disclosed to the defense. Id. at 17-18. The Court found " [t] he State's argument that the IGG investigation is wholly irrelevant since it was not used in obtaining any warrants and will not be used at trial is well supported. " (Order Addressing IGG DNA and Order for In Camera Review (“ In Camera Order ”), p.30, filed 10/25/2023), but also determined the defense may be entitled to some of the IGG information. Id. Accordingly, the Court “ grant [ed] the State's request for an in camera review of the IGG information. " Id. at 1. The State gathered the IGG information from the Idaho State Police; Othram, which is the private lab who contracted with the Idaho State Police; and the FBI and turned the information over to the Court. The information provided to the Court included original documents as well as some descriptions of other IGG-related information that was available for further review if the Court chose to do so. After the in camera review, the Court issued an order describing which pages of the IGG information had to be disclosed. (Sealed Order for Disclosure of IGG Information and Protection Order (“ Disclosure Order ”), filed 12/29/2023.) The State then provided the defense the materials the Court ordered disclosed. STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE 2 The Court's In Camera Order and Disclosure Order made it clear that all IGG discovery was to be filtered through the Court. Nevertheless, a few months later, the defense sent supplemental discovery requests to the State requesting additional IGG information. (Defendant's 15th Supplemental Request for Discovery, Exhibit N, filed 3/27/2024.) The State objected to all the requests. (State's Objection to Defendant's 15th Supplemental Request for Discovery, filed 4/4/2024.) The State explained the basis of its objection was that the State had already provided the IGG information to the Court, the Court had already ordered what IGG information should be disclosed to the defense, and the State had already disclosed that information. Id. at 1-2. At the hearing on the defense's motion to compel the IGG information, the State made the same argument asserted in the written objection. The State explained that, after it had received the In Camera Order, it reached out to the private lab and to the FBI and asked for everything related to IGG. (5/30/2024 Tr., p.83, L.6-16.) The State explained that it was not fighting the In Camera Order or trying to withhold from the Court any of the IGG information. (5/30/2024 Tr., p.83, L.22 – p.84, L.1.) The State asserted that, after receiving the new IGG requests, the State showed the new requests to Othram, and Othram said they had already given everything they had to the State. (5/30/2024 Tr., p.84, Ls.1-7.) To the extent the new requests were asking for anything beyond what had already been provided, Othram had told the State it did not exist. (5/30/2024 Tr., p.84, Ls.3-7.) The Court clearly understood the State's argument to be that the requested materials either had been turned over to the Court or did not exist because it concluded the discussion on Othram's materials with this question: THE COURT: So Othram has said – you've asked them and they said we've given you everything we have? [THE STATE]: Yes. (5/30/2024 Tr., p.85, Ls.16-18.) The Court denied the defense's motion to compel as it related to STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE 3 the IGG information. (Order on Defendant's 4th and 5th Motions to Compel Discovery, pp.8-12, filed 6 / 14 / 2024.1) The defense later moved to suppress all evidence collected as a result of IGG on the basis that the IGG process violated Defendant's rights under the Fourth Amendment. At the January 23, 2025, hearing on the motion to suppress, ISP Lab Director Matthew Gammette testified that ISP had received Othram's standard operating procedures in the context of the bidding process used by ISP to secure a private lab to perform work related to IGG. (1/23/25 Tr., p.58, Ls.1-13.) Shortly after the hearing, the defense sent additional discovery requests to the State related to the IGG information, including a request for Othram's protocols and procedures as testified to by Matthew Gammette. (Defendant's 22nd Supplemental Request for Discovery, Exhibit U, filed 1/28/2025.) The State put together a response objecting to each of the IGG requests for the same or similar reasons it had objected to previous IGG-related discovery requests: the IGG discovery had already been handled through the process established by the Court's In Camera Order and Disclosure Order. ¹ Consistent with the colloquy at the hearing, the Court's order gave the defense the benefit of the doubt and interpreted the requests related to Othram to be asking for additional materials that were not already known to the Court rather than as an attempt to evade the Court's protective order and secure from the State materials the Court had already ruled on. The defense's interpretation, that the Court was saying none of the requested information existed at all, is not consistent with the record. For example, one of the requests asked for the names and CVs of the individuals responsible for work done at Othram. (See Defendant's 15th Supplemental Request for Discovery, Exhibit N, p.1, filed 3/27/2024.) Obviously, the State never represented to the Court that the individuals who worked at Othram did not have names or CVs. In fact, the State had already disclosed in camera information about the chief scientist who did the work at Othram, including his name and qualifications. (In Camera Materials, ISP Othram Contract Documents, p.80, filed 11/30/23.) Similarly, another Othram-related discovery request asked for any data file that was uploaded to any commercially available database, and the State expressly told the Court both in writing and at the hearing that documents existed that were responsive to the request but had already been turned over. (See 5/30/24 Tr., p.85, Ls.3-13; Second Supplemental Response to Defendant's Fifth Motion to Compel, p.2 (stating in response to Request 3 that " [n] o such data file exists other than the SNP profile (s) already provided) (emphasis added), filed 5/28/24.). STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE 4 In putting together its response, the State learned that Othram had provided its standard operating procedures to ISP, but ISP had not provided them to the Latah County prosecutor's office to be disclosed to the Court in response to the Court's December 29, 2023, In Camera Order. Specifically, on February 9, 2025, the State first recognized that the form Othram filled out during the bidding process asked the bidder to submit written standard operating procedures, and Othram's response indicated that Othram uploaded its standard operating procedures as the file SOPs.zip. (In Camera Materials, ISP Othram Contract Documents, p.80, filed 11/30/23.) The State compared Othram's response to the information provided to the Court in response to the In Camera Order and found the State did not provide the SOPs.zip file as an attachment to the bid. Upon further review of its records, the State found that ISP had not provided the file SOPs.zip to the Latah County prosecutor's office. The State then confirmed with ISP that Othram had provided the standard operating procedures to ISP but that they were inadvertently not provided to the Latah County prosecutor's office. Just two days after learning this information, the State provided to the defense and filed with the Court its response to the defense's discovery requests. (State's Response to Defendant's 22nd Supplemental Request for Discovery, filed 2/11/2025.) The State explained in its response that the bidding documents included for the Court's in camera review revealed the existence of Othram's standard operating procedures, but the State had inadvertently failed to disclose the standard operating procedures themselves. Id. at 1. The State also explained that the standard operating procedures were covered by the Court's protective order because the Court had not required the disclosure of any of the bidding documentation other than the MOU, including the document that revealed the existence of the standard operating procedures, on the basis that " [t] he remaining contract documents are not relevant to any issue in the case. ” (State's Response to STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE 5 Defendant's 22nd Supplemental Request for Discovery, Ex. S-1, p.1, filed 2/11/2025 (quoting Disclosure Order, p.5).) Two weeks later, the defense filed a motion in limine asking the Court to exclude IGG evidence from the trial on the basis that the State allegedly violated Brady. ARGUMENT The defense's motion is based on a mischaracterization of the record and inapposite case law. The State did not act in bad faith; the State never made the concession the defense now claims; and the defense's reliance on Youngblood is legally erroneous. The defense has failed both legally and factually to substantiate a Brady violation. A. The defense's motion is based on the wrong legal standard. The defense's motion relies on the wrong legal standard by confusing Brady and Youngblood. The Brady standard asks if the State withheld exculpatory evidence that had a reasonable probability of changing the outcome of the proceeding and applies “ irrespective of the good faith or bad faith of the prosecution. ” Thumm v. State, 165 Idaho 405, 422-23, 447 P.3d 853, 870-71 (2019). Brady applies when the State possesses but fails to disclose allegedly exculpatory evidence. See State v. Campbell, 170 Idaho 232, 247, 509 P.3d 1161, 1176 (2022). “ However, a separate issue arises when the allegedly exculpatory evidence was not withheld by the State, but rather lost or destroyed by the State. ” State v. Davis, 165 Idaho 709, 714, 451 P.3d 422, 427 (2019). In that circumstance, the Youngblood standard asks whether the State acted in bad faith. See id. Idaho's appellate courts have been clear about this distinction for decades. See, e.g., State v. Sarbacher, 168 Idaho 1, 5, 478 P.3d 300, 304 (2020) (“ While we have consistently held that Brady applies when the State fails to disclose known exculpatory evidence, we have applied [Youngblood] in cases where the State has failed to preserve material evidence of unknown exculpatory value. "); State v. Ward, 135 Idaho 68, 74, 14 P.3d 388, 394 (Ct. App. 2000) STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE 6 (explaining “ the district court failed to distinguish between the state's duty to disclose evidence and the state's duty to preserve evidence ” and that Youngblood “ applies only to situations where the state failed to preserve potentially exculpatory evidence ”). Determining which legal standard applies is as easy as it sounds. For example, in a case where the State possessed but failed to disclose an allegedly exculpatory social media post, the Idaho Supreme Court held Brady was the correct standard. See Campbell, 170 Idaho at 247-49, 509 P.3d at 1176-78. But in a different case when the State “ destroyed or deleted " an allegedly exculpatory social media post, the court held that Youngblood applied. See Davis, 165 Idaho at 715, 451 P.3d at 428. Here, Brady applies because the defense alleges that the State failed to disclose Othram's standard operating procedures. Youngblood does not apply because the defense has not alleged that the State lost or destroyed Othram's standard operating procedures. Because Brady applies rather than Youngblood, whether the State acted in good faith or bad faith is irrelevant. Thus, the defense's motion, which rests entirely on its faulty accusations of bad faith, fails from the get-go. Though legally correct, it is unfortunate for the State that Youngblood does not apply because there is no reasonable reading of the record that supports a finding of bad faith. “ Bad faith is a high bar, requiring more than mere negligence; rather, bad faith refers to a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny. ” State v. Sarbacher, 168 Idaho 1, 7, 478 P.3d 300, 306 (2020) (internal quotations omitted). There was no calculated effort to circumvent Brady. The State disclosed to the Court the records it had received regarding the bidding process. Then, just two days after learning that the standard operating procedures themselves were inadvertently left out of the material provided for in camera review, the State notified the defense and the Court still six months before the trial. The State acted STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE 7 in good faith and there is no reasonable basis to conclude otherwise. B. The defense has not and cannot prove a Brady violation. The defense has not and cannot prove a Brady violation related to Othram's standard operating procedures. “ There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it's exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. ” State v. Hall, 163 Idaho 744, 830, 419 P.3d 1042, 1128 (2018). The defense has not proven any of three components. First, the defense has not shown that Othram's standard operating procedures are exculpatory or impeaching. Much of the defense's argument is based on a misreading of the transcript of May 30, 2024, to say the State conceded the IGG information is relevant to the case. Of course, relevance is not the proper standard. See State v. Campbell, 170 Idaho 232, 247, 509 P.3d 1161, 1176 (2022) (explaining Brady only applies where the evidence is “ favorable to the defense "). In any event, the defense is wrong about the State's concession. The defense omitted from its motion the beginning of the State's argument at the hearing, which demonstrates that the State maintained its position that none of the IGG information is relevant and that the State's references to the Court's order were referring to the In Camera Order requiring the State to turn IGG information over to the Court, not the Disclosure Order requiring the State to turn some of the IGG information over to the defense: [THE STATE]: Thanks, Judge. So I just want to start with maybe a bigger picture for a second. You know, we started with arguments about whether the IGG stuff is relevant at all. We, of course, made our argument that it is not relevant at all. It shouldn't even have to be produced. The Court made a ruling on that. We still don't agree with it, but we understand [THE COURT]: I understand. STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE 8 [THE STATE]: the Court makes the decisions, and so we complied with that order. (5/30/2024 Tr., p.83, Ls.6-15.) In light of that portion of the State's argument, it is clear that the next portion of the State's argument was nothing more than the State acknowledging that — to the extent the requested materials exist — those materials fell within the scope of the Court's In Camera Order and, pursuant to that order, the State had to turn over those materials to the Court: [THE STATE:] We have talked to Othram. We've spoken to Othram since we have gotten this Exhibit N and provided them these requests. And we are not in a position for example, request 1 through 6, we are not fighting those. I'm not saying, we are not going to turn those over. In my view, they fall pretty clearly under the Court's order. The issue is, we go to Othram and show them these, and Othram says, we have given you everything. You have everything. Everything we have was given to the Court and then provided to the Defense. So, there's nothing on this list that we are holding back because we think we have some justification for doing so. Othram is just telling us we don't have it. (5/30/2024 Tr., p.83, L.20 – p.84, L.7.) That the State was referring to the In Camera Order and turning over materials to the Court is also clear from the orders themselves. The In Camera Order required the State to disclose a category of information to the Court: all the IGG information related to the case. (In Camera Order, pp.30-31.) The Disclosure Order, on the other hand, specified precisely which pages or discrete information reviewed in camera needed to be turned over to the defense. (See Disclosure Order, pp.1-5.) Given the nature of the orders, it would make no sense for the State to assert that any additional information not provided in camera was subject to the Disclosure Order. The defense's misreading of the transcript pales in comparison to its misreading of the State's motion for a protective order. (Mot. at 3.) The defense tries to claim the State conceded in its motion that all information related to Othram's work was relevant because the State agreed to provide the lab report pursuant to Rule 16 (b) (5). Id. Nothing could be further from the truth. The STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE 9 State dedicated an entire section of the motion to explaining why Rule 16 (b) (5) required only the disclosure of the scientific report and nothing else. (Motion for Protective Order, pp.13-15, filed 6/16/2023.) The State also affirmatively argued the rest of the IGG information should be protected because it fell outside of Rule 16, including any “ raw data related to the SNP profile and the underlying laboratory documentation related to the development of the profile, such as chain of custody forms, laboratory standard operating procedures, analyst notes,