Court Filing
Electronically Filed 2/24/2025 5:30 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, DEFENDANT'S MOTION ΤΟ V. PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY BRYAN C. KOHBERGER, PROCEDURES DUE TO THE STATE'S NUMEROUS DISCLOSURE Defendant. VIOLATIONS COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and respectfully requests that this Court remedy the State's failure to comply with its obligations under the state and federal constitutions, state law, the rules of the Supreme Court of Idaho, and the DEFENDANT'S MOTION TO PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES DUE TO THE STATE'S NUMEROUS DISCLOSURE VIOLATIONS Page 1 scheduling order of this Court. The State has failed to provide expert disclosures that are specific enough to understand what testimony and discovery it intends to rely on, depriving Mr. Kohberger of the ability to conduct independent review and investigation of the evidence it will rely on. Additionally, as counsel has previously stated, the discovery in this case has been provided in a manner that is as though the State took tens of thousands of documents, photos, and video clips and shook them up in a snow globe. While defense counsel has made herculean efforts to review the discovery provided, there is no possible way that all of the discovery — which is equivalent to 68,000 copies of the Encyclopedia Brittanica¹ — can be reviewed prior to the trial date. Indeed, a defense expert informed counsel it would require 3 additional years to review all of the discovery from the 67 electronic devices and digital data alone. By providing discovery in this manner, the State is failing to comply with their obligations under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), Kyles v. Whitley, 514 U.S. 419 (1995); State v. Lankford, No. 35617, 2016 Ida. LEXIS 212 (July 25, 2016), and Grube v. State, 134 Idaho 24 (2000). These cases require the prosecution to provide exculpatory and impeaching information to the defense, including any information that would tend to mitigate the punishment, even if it is not constitutionally material, in a manner and timeframe that it could be reasonably relied upon in preparing for trial. As discussed in this Motion, in cases with enormous amounts of electronic data, the prosecution does not meet that standard by providing discovery in a manner that effectively buries exculpatory, impeachment, and mitigation information. Timely and meaningful disclosure is indispensable to the effectuation of the right to a fair trial, due process, effective assistance of counsel, and the right to be free from cruel and unusual punishment, pursuant to the 6th, 8th, and 14th Amendments to the United States Constitution and Sections 6 and 13 of Article I of the Constitution of the State of Idaho. 1 A single Encyclopedia Brittanica contains more than 30 volumes. DEFENDANT'S MOTION TO PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES DUE TO THE STATE'S NUMEROUS DISCLOSURE VIOLATIONS Page 2 Mr. Kohberger requests that the Court exclude evidence and testimony that the State has not yet provided in adequate expert disclosures. An accompanying Motion in Limine has been filed regarding the specifics of this evidence; the details are not repeated herein but incorporated by reference. Exclusion of that evidence, however, is insufficient to cure the whole of the prejudice to Mr. Kohberger. Like other trial courts around the country, this Court must also (1) order the prosecution to provide a detailed index of documents it intends to rely on as well as an index of Brady information and (2) preclude the death penalty at the upcoming trial in order to meet the constitutional standards of due process and a fair trial. Mr. Kohberger acknowledges this motion requests preclusion of the death penalty as one of the remedies after this court's ordered deadline. However, good cause exists for this filing. The State has produced an enormous amount of disorganized data, continues to provide discovery past their deadline, refuses to provide requested supplemental discovery² and has failed to abide by expert disclosure rule and order. TABLE OF CONTENTS RELEVANT FACTUAL BACKGROUND. 4 ARGUMENT. 6 I. The Prosecution's Discovery Obligations under the Federal and Idaho Constitutions and Idaho Law........... 6 A. The Prosecution Has a Constitutional Duty to Identify, Preserve, and Disclose Exculpatory Information... 7 B. The State Suppresses Exculpatory Evidence when It Does Not Timely Disclose this Evidence. 8 2 Mr. Kohberger has litigated the state's identification of him through its IGG investigation. Multiple discovery requests, motions to compel have been heard. During his Motion to Suppress Mr. Kohberger learned new information relating to procedures and protocol, laboratory information about its work, and additional investigation that took place. He promptly requested the same through discovery. His request resulted in the State acknowledging it withheld information sought, and a refusal to provide it. The state further promised some discovery which has not yet arrived but overall said Mr. Kohberger was too late to get the information. Mr. Kohberger has filed a motion in limine to exclude IGG. Those arguments are incorporated but not repeated herein. DEFENDANT'S MOTION TO PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES DUE TO THE STATE'S NUMEROUS DISCLOSURE VIOLATIONS Page 3 C. Mitigating Evidence Is Material when It “ May Well ” Have Been Consequential to a Jury's Deliberations on Punishment. 9 D. The Obligation to Disclose Exculpatory Evidence Extends beyond what the Prosecutors Are Personally Aware Of and Beyond Four Walls of a Prosecutor's Office; It Applies to Federal Law Enforcement Officers, State Lab Technicians, and other State Actors. 10 E. Idaho Criminal Rule 16 (a) Requires the Timely Disclosure of Exculpatory Evidence. 12 F. The Idaho Rules of Professional Conduct Require the Timely Disclosure of Exculpatory Evidence. 12 II. The Prosecution Has Turned Over Mountains of Unorganized Electronically Stored Data That Defense Counsel Cannot Possibly Review Prior to Trial.... 13 III. Example: the State Has Not Timely Produced Indexed or Identifiable Portions of Contents Relating to the 67 Electronic Devicesother digital data it Intends to Rely On. 15 IV. Reviewing the Discovery is Only the Beginning of Defense Counsel's Obligations; the Defense Must Have Time and Opportunity to Conduct Independent Investigation of the State's Evidence.. 20 V. This Is a Capital Case and Heightened Due Process Applies. 22 VI. Mr. Kohberger Has Been Prejudiced by the State's Failure to Fulfill Its Disclosure Obligations and Judicial Remedy Is Required. 23 1. Preclude Experts and Testimony Not Properly and Timely Disclosed by the State...... 24 2. Require the State to Provide a “ Hot Documents ” Index of Information it Intends to Rely on, As Well As Brady / Giglio Evidence, in Accordance with The Minimum Standards for Voluminous Electronic Discovery. 24 3. Preclude the Death Penalty as a Potential Sentencing Option. 25 RELEVANT FACTUAL BACKGROUND Mr. Kohberger has consistently demanded that the prosecution comply with its obligations under the state and federal constitutions to provide exculpatory and impeaching information to the defense, as well as any information that would tend to mitigate the punishment. The defense has filed more than 20 supplemental requests for discovery, specifying evidence the State has failed to turn over. The State has turned over more than 68 terabytes of data. That much data is the equivalent of 68,000 copies of the Encyclopedia Britannica. See Elizabeth Stafford, Pretrial Discovery of DEFENDANT'S MOTION TO PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES DUE TO THE STATE'S NUMEROUS DISCLOSURE VIOLATIONS Page 4 Electronically Stored Information in Federal Criminal Cases, MICH. BAR J. 20, 22 (Mar. 2013) (explaining that 1-2 terabytes equal 1,000-2,000 copies of Encyclopedia Britannica); see also United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013) (“ The average 400-gigabyte laptop hard drive can store over 200 million pages — the equivalent of five floors of a typical academic library. "). Put another way, “ one gigabyte of text files will average over 677,000 text file pages and over 100,000 pages of email files. ” United States v. Salyer, CR. S-10-0061 LKK (GGH), 5 n.3 (E.D. Cal. Aug. 2, 2010). One terabyte contains 1000 gigabytes. Thus, 68 terabytes of text files will average more than 46,000,000,000 text pages or nearly 7,000,000,000 pages of email files. The discovery that has been provided includes more than 13,000 photographs, more than 15,000 video clips from businesses and more than 8,000 video clips from residences. It also includes more than 60+ digital devices and digital data and search warrant data, including cell phones and laptops from Mr. Kohberger, the victims, alternate suspects, and various other individuals who knew the victims. While the State has had access to many dozens or even hundreds of detectives and investigators from multiple law enforcement agencies including the FBI, in addition to the use of expensive AI and technological programs, to facilitate production and review of this massive amount of discovery, the defense team consists of three attorneys, a mitigation specialist, and three investigators. There is no way, even through the greatest of due diligence, that the defense can independently review all of this discovery. In providing discovery, the State has not provided it in a searchable format, has not provided detailed logs and indexes that would facilitate the defense's review of the evidence, and has not provided an index of Brady evidence or evidence that may be relevant to the defense. Additionally, the Court set an expert disclosure deadline that passed more than one month ago. While the defense complied, the State provided vague disclosures that failed to identify opinions that experts would provide or detail the facts and evidence they would rely on for those DEFENDANT'S MOTION TO PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES DUE TO THE STATE'S NUMEROUS DISCLOSURE VIOLATIONS Page 5 opinions. For example, the State's expert disclosure listed three alleged experts who would testify relating to the 67 electronic devices, digital data, and search warrant return data as provided in discovery; the scope of that evidence is so broad that a defense expert estimated it would take more than 3 years to review. The State did not identify any actual opinions it intends to elicit about these devices and failed to identify any portions of the data that would be presented or relied upon. Well after the disclosure deadline, the State turned over a report stating that examinations of the devices are ongoing, which only heightens the prejudice to Mr. Kohberger and further depletes his time to conduct any independent review or evaluation of the State's evidence. This is only one of many disclosures in which the State failed to identify what opinion the expert would testify to and failed to point to specific evidence or discovery that would be relied upon. Moreover, even after this Court told the State that its “ job was not done ” with its expert disclosures, the State produced a circular argument blaming the defense in its rebuttal disclosures about the electronics, digital data and third party warrants. No additional opinions, clarifications, or specifics were provided. And finally, Mr. Kohberger requested additional discovery, related to IGG, after he learned of it's existence for the first time in his Motion to Suppress. The State acknowledge it had undisclosed information but refused, in part, to provide it, and promised, in part, to provide some information. No discovery has not been disclosed. (See also, Mr. Kohberger's Motion in Limine to Exclude IGG,) As discussed below, the State has gained a tactical advantage that cannot be remedied now, and therefore this Court must take affirmative steps to put Mr. Kohberger back on equal ground. ARGUMENT I. The Prosecution's Discovery Obligations under the Federal and Idaho Constitutions and Idaho Law. Both the Federal and Idaho Constitutions, as well as Idaho law, require that the prosecution turn over any materials to the defense which may help the accused, either by negating the guilt, DEFENDANT'S MOTION TO PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES DUE TO THE STATE'S NUMEROUS DISCLOSURE VIOLATIONS Page 6 mitigating punishment, or impeaching the State's witnesses. See Brady v. Maryland, 373 U.S. 83 (1963); Kyles v. Whitley, 514 U.S. 419 (1995); State v. Lankford, No. 35617, 2016 Ida. LEXIS 212 (July 25, 2016); Grube v. State, 134 Idaho 24 (2000); I.C.R. 16 (a). A. The Prosecution Has a Constitutional Duty to Identify, Preserve, and Disclose Exculpatory Information. Under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and Article I, § 13 of the Idaho Constitution, criminal defendants are entitled to proceedings that “ comport with prevailing notions of fundamental fairness. ” California v. Trombetta, 467 U.S. 479, 485 (1984). These notions of fundamental fairness require that a defendant be provided with evidence favorable to the defense. See, e.g., Brady, 373 U.S. at 87. Accordingly, the State violates a defendant's due process rights whenever the State suppresses evidence that “ is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. ” Grube, 134 Idaho at 27. The prosecutor's duty to produce this material is self-executing: she must turn over Brady material regardless of whether the defense has made a specific request. United States v. Bagley, 473 U.S. 667, 682 (1985). The good faith or bad faith of the prosecutor is not relevant to the Brady inquiry. See Giglio v. United States, 405 U.S. 150, 154 (1972) (“ Whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor's office is an entity and as such it is the spokesman for the Government ”). The duty exists even if the defense conceivably might have access to the information independently. See, e.g., United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) (non-disclosure of government witness ' paid informant status not absolved even if defendant might have uncovered it through independent sources; tapes disclosed to co-defendant not effectively disclosed to defendant because “ trial strategies of codefendants often conflict "). DEFENDANT'S MOTION TO PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES DUE TO THE STATE'S NUMEROUS DISCLOSURE VIOLATIONS Page 7 B. The State Suppresses Exculpatory Evidence when It Does Not Timely Disclose this Evidence. To comply with their constitutional obligations, the State must disclose exculpatory evidence in time for its effective use at trial. See, e.g., Bagley, 473 U.S. at 676 (assessing materiality based on the impact of “ effective ” use of the exculpatory evidence); United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001) (“ With respect to when the prosecution must make a disclosure required by Brady, the law also appears to be settled. Brady material must be disclosed in time for its effective use at trial or at a plea proceeding. ”) (emphasis in original) (internal citations omitted). When the State fails to produce exculpatory evidence in time for its use at trial, the State has suppressed the evidence in violation of a defendant's due process rights. See, e.g., United States v. Beasley, 576 F.2d 626 (5th Cir. 1978) (finding that the government suppressed exculpatory evidence by failing to timely produce statement of prosecution witness that differed from trial testimony). Additionally, when exculpatory materials have been disclosed too late for their effective use at trial, the untimely disclosure implicates a defendant's constitutional right to the effective assistance of counsel under the Sixth Amendment to the U.S. Constitution and Article 1, § 13 of the Idaho Constitution. The right to the timely disclosure of favorable evidence “ guarantees an accused sufficient time to investigate and evaluate the evidence in preparation for trial. ” Moreno v. Commonwealth, 392 S.E.2d 836, 417 (Va. App. 1990). In addition to allowing for full investigation which could lead to more favorable or exonerating evidence, the timely disclosure of Brady material can alert defendants to viable pre-trial challenges, such as suppression of evidence. United States v. Gamez-Orduno, 235 F.3d 453, 455 (9th Cir. 2000) (holding that Brady was violated in the pretrial context by suppression of a report that would have demonstrated Fourth Amendment standing to challenge a search). DEFENDANT'S MOTION TO PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES DUE TO THE STATE'S NUMEROUS DISCLOSURE VIOLATIONS Page 8 Idaho Criminal Rule 16 (a), the Idaho Rules of Professional Conduct, the ABA Rules of Professional Conduct, and Brady progeny all require timely disclosure of discovery materials, meaning prosecutors must turn over information at the earliest feasible opportunity. See I.C.R. 16 (a) (“ As soon as practicable following the filing of charges against the accused "); Idaho Rules of Prof'l Conduct R. 3.8 (d) (mandating “ timely disclosure to the defense ”); ABA Rules of Prof'l Conduct R. 3.8 (d) (mandating “ timely disclosure to the defense "). C. Mitigating Evidence Is Material when It “ May Well ” Have Been Consequential to a Jury’s Deliberations on Punishment. In death penalty cases, Brady includes information that may not exculpate but that nonetheless mitigates punishment. See, e.g., Cone v. Bell, 556 U.S. 449, 475 (2009) (remanding for resentencing so jury could consider suppressed evidence relating to defendant's drug addiction incurred as a result of honorable military service). As such, even when evidence is not probative at all regarding a defendant's guilt or innocence — or even when the evidence is more likely to support a finding of guilt during the first phase of a capital trial — the evidence may still be Brady material if it could lead to lesser punishment. As the Supreme Court has emphasized, while “ [e] vidence that is material to guilt will often be material for sentencing purposes as well, the converse is not always true. ” Id. at 474. As such, when the State has elected to seek the death penalty, the Supreme Court has required a lesser showing of materiality to establish a Brady violation; a sentence will be reversed when the cumulative impact of the evidence “ may well ” have been material to the jury's sentencing decision. See id. at 475 (vacating Cone's sentence because the cumulative impact of the missing witness statements, police teletypes and interview notes regarding Cone's drug use “ may well ” have been material to the jury's sentencing deliberations, even though they were not material to the insanity defense in the guilt-