Defense Motion in Limine 11 - Exclude IGG Evidence

Electronically Filed
2/24/2025 4:54 PM

Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court Anne Taylor Law, PLLC By: Jennifer Keyes, Deputy Clerk Anne C. Taylor, Attorney at Law PO Box 2347 Coeur d'Alene, Idaho 83816
Phone: (208) 512-9611 iCourt Email: info@annetaylorlaw.com Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, Idaho 83661
Phone: (208) 642-3797; Fax: (208)642-3799 Bicka Barlow Pro Hac Vice 2358 Market Street San Francisco, CA 94114
Phone: (415) 553-4110 Assigned Attorney:
Anne C. Taylor, Attorney at Law, Bar Number: 5836 Elisa G. Massoth, Attorney at Law, Bar Number: 5647 Bicka Barlow, Attorney at Law, CA Bar Number: 178723 Jay W. Logsdon, First District Public Defender, Bar Number: 8759
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 NUMBER CR01-24-31665

Plaintiff,
V. MOTION IN LIMINE # 11

BRYAN C. KOHBERGER, RE: EXCLUDE IGG EVIDENCE

Defendant.

COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and pursuant to the Idaho Rules of Evidence, moves this Honorable Court for an Order to Exclude Evidence of IGG testing and searches. This motion is based on the Idaho Rules 16 (b) (1-8) and that presentation of such evidence would violate Mr. Kohberger's State and Federal Constitutional
MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE Page 1

rights to a fair trial under the Fifth and Fourteenth Amendments and his right to confront the evidence against him and to have competent counsel under the Sixth Amendment.

RELEVANT FACTS

A knife sheath that was recovered at 1122 King Road, Moscow Idaho on November 13,
2022. The sheath was tested using standard DNA STR methods by the Idaho State Police (ISP) lab. This profile was uploaded to the CODIS DNA database and resulted in no hits to known offenders.

The Moscow Police Department, with the assistance of the Idaho State Forens ics Lab, transferred extracted DNA from Q1.1 to Othram labs, located in Texas on November 22, 2022.

Othram promised to preserve all of its work in this case in the engagement agreement and proceeded to test the Q1.1 DNA using SNP (Single Nucleotide Polymorphism) techniques. Othram generated a " profile ” using SNP and began building a family tree for Q1.1, looking for the closest relatives of the sample in commercial databases that allow law enforcement searches, GEDMatch Pro and FamilyTreeDNA.

On December 10, 2022, Othram was asked to cease work on the case by the prosecutors despite the fact that their genealogy investigation was incomplete.¹ Othram reported that they had identified a number of close relations to the knife sheath via searches of FamilyTreeDNA and GEDMatch Pro and suggested obtaining DNA samples from three individuals to further their investigation. In an email, directing the stop work, lab manager Matthew Gamette directed Othram to " preserve the whole genome profile that you have generated on this case, any remaining DNA extract, any data generated on this case, and any other records [Othram] has on this case, and anything else laid out in the state contract with Idaho, until the Moscow PD and the Latah County POA communicate that such information does not need to be retained by Othram labs. " 2 1 Motion in Limine 11 Exhibit 1 Othram report December 16, 2022.

2 Motion in Limine # 11 Exhibit 2 Discovery, Bates 15378.

MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE Page 2

After Mr. Kohberger was charged, he swiftly requested discovery relating to the IGG testing and family tree building that led to his arrest (May 3, 2023, Defendant's 3rd Supplemental Request for Discovery). Mr. Kohberger laid out the rationale for his request in his 3rd Motion to Compel, and a series of affidavits (filed June 22, 2023).

The State filed a Motion for Protective Order (June 16, 2023) in advance of Mr.

Kohberger's motion to compel. In the Motion for Protective Order the State drew a strong distinction between the work done by Othram to generate a SNP profile and the work done to generate a family tree from the SNP data, in effect arguing that the family tree building did not fall under the Idaho rule of discovery for a number of reasons. However, in this motion and during argument on the motion, the State conceded that the testing done by Othram to generate the SNP data fell under I.C.R. 16 (b) (5) and stated: “ the private laboratory developed the SNP profile from the DNA on the Ka-Bar knife sheath. As required by Rule 16 (b) (5), the State will produce the report that documents that DNA test. ” (Motion for Protective Order at 14).

The court after hearing testimony from a number of defense expert witnesses, found that the defense had met the threshold “ required to show at least some of the IGG information sought is material to the preparation of the defense ” and issued an order for production of the “ all of the IGG information in the possession, custody or control of the State ” for in camera review. (Order Addressing IGG DNA and Order for In Camera Review, at 20, 31 October 25, 2023). On November 30, 2023, the State provided materials to the Court for review, along with a table of items. The listed items included FBI materials, ISP emails, Othram emails and documents, shipment of DNA profile documents and ISP / Othram contracts³. The Court ordered release of the majority of the materials, with the exception of the generic contract documents of the MOU 3 Motion in Limine # 11 Exhibit 3 Bates 15302.

MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE Page 3

between the ISP, Moscow PD, Latah County POA and Othram. (Sealed Order for Disclosure of IGG Information and Protection Order, December 29, 2023.) After review of these materials, Mr. Kohberger requested additional discovery materials in his 15th Supplemental Discovery Request relating to work done by Othram and the FBI.4 He sought materials to encompass essentially all of the materials that are normally produced along with lab reports for scientific testing. The State objected and Mr. Kohberger filed his 5th Motion to Compel (Filed April 15, 2024). In a hearing on May 30, 2024, extensive expert testimony was again heard by the Court as to the necessity of the materials sought. The requested items included, among other things, raw data files for SNP testing, standard operating procedures (SOPs), validation summaries, contamination logs, and bioinformatics programs and protocols. At the end of the testimony, the State through Mr. Nye argued the motion to compel. In a striking exchange, Mr. Nye represented to the Court:
the Court makes the decisions, and so we complied with that order. And we reached out to the FBI and Othram and said, you got to give us what you have. We've talked a lot about -- and we've referenced a letter from the FBI today. I thought the letter itself did a pretty good job laying out what they do and don't have, what they have access to and what they don't. 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 the 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. (Transcript, 5/30/24 at pg 84-85.) Items 1-6 in Exhibit N are the materials described above that pertain to the SNP DNA testing done by Othram labs. Mr. Nye emphasized that Othram told the prosecution that as to the specific requests outlined in Items 1-6 of Exhibit N, “ Othram is just telling us we don't have it, so there's nothing we can do. ” (Id. at 85). The Court then inquired:
4 Motion in Limine # 11 Exhibit 4 Discovery Request “ Exhibit N ”
MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE Page 4

THE COURT: So Othram has said – you've asked them, and they said we've given you everything we have?

MR. NYE: Yes. (Id. at 86).

Mr. Nye reiterated that the State knew that if the documents listed in Exhibit N, 1-6, existed, the State had an obligation to turn those material over to Mr. Kohberger: “ And with the rest of it, we are turning it over if it exists and if we have it. That's all. " (Id. at 92).

In the court's order related to the specific request in Exhibit N, the court relied in toto on the representations of the State, specifically referencing Mr. Nye's statement about items 1-6: “ The State indicated that the material sought in this request does not exist. ” (Order on Defendant's 4th and 5th Motions to Compel Discovery, at 8, June 14, 2024.) On January 23, 2025, a hearing was held before this Court regarding the suppression of DNA-IGG and Mr. Kohberger's Franks proffer hearing. During that hearing Matthew Gamette testified regarding the state's relationship with Othram, the contracting process and specific information about the IGG work done by Othram prior to its SNP data being passed to the FBI.

Mr. Gamette was involved in the original process that led to the IGG contract with Othram (TX 1- 23-25, at 89) which involved coming up with specifications for the scope of work for the contract.

Mr. Gamette specifically testified that “ manuals, protocols were provided back to us as part of the bid " (Id. at 91). Mr. Gamette also testified that the contract with Othram specifies that they would keep any data or other things associated with that... And so in this case I don't know if they have other data or other records that they have kept, they have retained. We had asked them, as part of the termination in this case of our work, that they would preserve those things or that they would communicate with both the prosecutor's office and with Moscow Police Department if any of that information was to be disposed or whatnot. (Id.at 92 [emphasis added].) Mr. Gamette stated that protocols and procedures were received from Othram in 2021 during the bidding process, he believed would “ likely exist. ” (Id. at 112). In response to the new revelations in Mr. Gamette's testimony that the State had in its possession the protocols of the lab through the
MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE Page 5

contracting process as well as other significant materials, Mr. Kohberger filed his 22nd supplemental discovery request on January 28, 2025, requesting multiple items relating to Mr.

Gamette's testimony. In its response, dated February 11, 2025, the State objected to a number of items. For purposes of this motion, the State response to request numbers 424 and 425 raises the specter of prosecutorial misconduct. Mr. Kohberger specifically requested “ All Othram lab Protocols / Policy and Procedures, and validation studies in place in December 2022 as testified about by Matthew Gamette on 1/23/25, ” as well as all bench notes, electronic data files (.fastq), photographs and quality records.5 The State objected to this request in particular as being untimely and stated that “ [t] he court did not require the State to produce any of the other bidding documentation, including Othram's bid submission that discussed Othram's accreditation status, other customers, past cases, the name and qualifications of the primary genealogist, the name and qualifications of the chief scientist, and the SOPs or analytical methods that were to be used. " This was the first time that the defense had been made aware of the contents of the material provided to the court for in camera review. Had Mr. Kohberger known that the materials contained the information described, certainly would have sought the specific listed information. Because Mr. Kohberger did not know the materials provided to the court included reference to SOPs and analytical methods, and because Mr. Nye affirmatively represented that Othram had no such documentation, Mr. Kohberger did not ask the court to reconsider its order regarding production of the materials after the in camera review or at the hearing on May 30, 2024 (See Attached Exhibit 4, Item 4,).

Most troubling is the last statement in the State's February 11, 2025, objection, that while the materials provided to the court for review contained references to the SOPs, the SOPs were 5 These items are essentially identical to Items 1-6 from Exhibit N filed in support of Mr. Kohberger's Fifth Motion to Compel.

6 Motion in Limine # 11 Exhibit 5 State's response to Defendant's 22nd Supplemental Discovery Request
MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE Page 6

" inadvertently excluded from the materials. ” Consequently, the court was misled about the materials reviewed in camera resulting in deprivation of clearly discoverable documentation. The State objects to the production of materials that it conceded in 2023 Mr. Kohberger was entitled to.

Just six days later, on February 17, 2025, in its Expert Witness Rebuttal, the State provided a disclosure for David Mittelman. ” Mittelman is the CEO of Othram labs. The proposed testimony concerns the testing done by Othram to generate the SNP profile. The proposed testimony covers the testing methods used by Othram, validation and quality standards. All of these topics were covered in Mr. Kohberger's Fifth Motion to Compel.

ARGUMENT

" Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed ‘ what might loosely be called the area of constitutionally guaranteed access to evidence. ” (California v. Trombetta 467 U.S.

479,485 (1984) [citations omitted].) “ ' [S] uppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. ” (Arizona v Youngblood 488 U.S. 51, 53 (1988), quoting United States v. Valenzuela – Bernal, 458 U.S. 858, 867 (1982).) The Idaho Supreme Court recognized that non disclosure cases can be place into three different categories: 1) “ " the undisclosed evidence demonstrates that the prosecution's case includes perjured testimony and that the prosecution knew, or should have known, of the perjury ” (United States v Agurs, 427 U.S. 97, 103 (1976)); 2) Brady type cases where the prosecution is put on 7 David Mittelman was disclosed in the State's Rebuttal Expert disclosure.

MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE Page 7

notice of " what is specifically desired. Thus, the prosecutor should be well aware of what evidence will be of assistance, and such notice should correspondingly raise the level of the prosecution's duty to disclose; " and 3) where no specific request for newly discovered and potentially exculpatory evidence was made by the defense. (Paradis v. State, 110 Idaho 534, 538-39 (1986).) Separately, " the problem of alleged loss or destruction by the state of allegedly exculpatory evidence.... raise additional difficulties, such as that of deciding how materially favorable the evidence is to the defendant's case and implementing an adequate remedy where justified. Usually, the only feasible remedy is dismissal of the prosecution or suppression of evidence that would have been impeached by the lost or destroyed evidence. ” Id. at 539 [emphasis added].

Mr. Kohberger is now asking for the remedy of exclusion because at this late date, he will be unable to investigate the impact of the evidence itself as well as the consequence of withholding such evidence, even if the missing discovery is produced at this point. Mr. Kohberger's right to receive and review this evidence is guaranteed by the 5th, 6th and 14th Amendments to the United States Constitution and Article 1 Section 13 of the Idaho Constitution.

In this case, the question of whether the State has withheld or concealed evidence specifically requested by Mr. Kohberger, is evident in the record as laid out above. Knowing that Mr. Kohberger was seeking such evidence, the State in bad faith failed to produce the evidence it conceded Mr. Kohberger was entitled to as early as 2023 and now for the first time has informed Mr. Kohberger and this court that some of the material sought was in their possession in 2023.

A. Brady violation The basic tenet of Brady stands to this day: “ the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. ” (Brady v Maryland 373 U.S. 83, 87 (1963).)

MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE Page 8

if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.

(Paradis v. State 110 Idaho 534 (1986) [quoting Augurs, 427 U.S. at 106].) Here, Mr. Kohberger repeatedly requested materials related to IGG and the court found that he had made a showing of materiality as to the records sought through discovery requests and motions to compel. The Court held two hearings on Mr. Kohberger's motion to compel. In its first order dated November 13, 2022, Judge Judge of the Latah County District Court, after hearing evidence, issued an order explaining that Mr. Kohberger had established sufficient evidence at the hearing to meet the “ low threshold " of materiality for “ at least some of the IGG information sought ” (Order Addressing IGG DNA and Order for In Camera Review, at 20). The focus of the order was on the second bucket of material identified by both Mr. Kohberger and the State, noting that " [a] ccording to the State, the rule only requires the disclosure of the results or reports themselves, in this case the STR DNA profile and the SNP DNA profile created from the Ka-Bar knife, ” and “ [i] t is undisputed that the SNP profile itself is the result of a scientific test done on evidence in the case, ” acknowledging that the State had conceded that under Rule 16 (b) (5), it was required to produce the results of the testing done by Othram labs. (Id. at 22-23).

The court then conducted an in camera review of the totality of the IGG material provided by the State concerning the construction of the family tree by Othram and then the FBI. The court ordered the production of essentially all of the reviewed material with the exception of certain documents pertaining to the contract between Othram and the State (Sealed Order for Disclosure of IGG Information and Protection Order, dated December 29, 2023).

The State provided test results in the form of two large text files, one identified as being the data produced by Othram and the second as the data produced by the FBI. Still not having received the promised material regarding the SNP testing conducted by Othram, Mr. Kohberger
MOTION IN LIMINE # 11 RE: EXCLUDE IGG EVIDENCE Page 9

renewed his request for the material in his 15th Supplemental discovery request and filed his Fifth Motion to Compel Discovery. A hearing was held in the Latah County District Court on May 30, 2024, during which the State reiterated that Mr. Kohberger was entitled to the requested material but that requested material did not exist. The requested material was laid out in Exhibit N and included all bench notes, all electronic data, all protocols and