Court Filing
Electronically Filed 3/24/2025 5:56 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, REPLY TO STATE'S RESPONSE TO V. DEFENDANT'S MOTION ΤΟ PRECLUDE THE DEATH PENALTY BRYAN C. KOHBERGER, AND ADOPT OTHER NECESSARY PROCEDURES Defendant. RE: DISCLOSURE VIOLATIONS COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby replies to the State's Response to his Motion to Preclude the Death Penalty and Adopt Other Necessary Procedures RE: Disclosure Violations. REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION ΤΟ PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES RE: DISCLOSURE VIOLATIONS Page 1 The volume of discovery in this case is exceptional. One of the last highly publicized death penalty case in Idaho involved three victims killed in separate incidents and a months-long investigation spanning multiple states. The discovery in that case totaled less than five terabytes. See Declaration of Mary Goody at 7, State v. Lori Vallow Daybell (filed March 14, 2023) (attached as Exhibit 1) (stating that discovery in the case exceeds four terabytes in a declaration filed two weeks prior to trial). The discovery provided in this case, more than 68 terabytes, dwarfs that number. It is not only an extreme outlier in Idaho, but in the entire country-courts often refer to cases involving less than 5 terabytes of data as containing a very significant volume of discovery. See, e.g., United States v. Salyer, No. CR. S-10-0061-LKK, 2011 WL 1466887, at * 1 (E.D. Cal. Apr. 18, 2011) (“ It is probably no exaggeration to state that 1–2 terabytes of information are involved... Of course, when one considers the terabytes of information in this case are comprised of thousands and thousands of individual records, the mass of documentation acquired in the investigation and turned over in discovery is extreme. ”); United States v. Puckett, No. 3: 15-CR- 42, 2015 WL 1815728, at * 2 (E.D. Tenn. Apr. 22, 2015) (“ [D] iscovery in this case is voluminous, involving half a terabyte of information ”); United States v. Valdez-Morales, No. 3: 15-CR-56, 2016 WL 919029, at * 9 (E.D. Tenn. Mar. 4, 2016) (“ Mr. Roskind stated that the four terabytes of discovery, the equivalent of about ten million files or documents, was the largest amount of discovery of any criminal case in which he had been involved. ”); United States v. Hofstetter, No. 3: 15-CR-27-TAV-CCS, 2018 WL 813254, at * 14 (E.D. Tenn. Feb. 9, 2018) (“ discovery in this case is massively voluminous, consisting of well over a terabyte of data, approximately fifty compact discs containing audio and video recordings, and numerous imaged computer hard drives "); United States v. Conley, No. 2: 22CR147, 2023 WL 5807835, at * 2 (E.D. Va. Sept. 7, 2023) (granting continuance in criminal case where the discovery totaled five terabytes, even where prosecution had “ diligently assisted defense counsel in navigating the voluminous discovery materials "). REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION ΤΟ PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES RE: DISCLOSURE VIOLATIONS Page 2 To put this into perspective, it would take hundreds of reviewers several years to review the discovery in this case: One terabyte is generally estimated to contain 75 million pages, [and therefore] a one-terabyte case could amount to 18,750,000 documents, assuming an average of four pages per document. Further assuming that a lawyer or paralegal can review 50 documents per hour (a very fast review rate), it would take 375,000 hours to complete the review. In other words, it would take more than 185 reviewers working 2,000 hours each per year to complete the review within a year [for a one terabyte data case]. " Jenia I. Turner, Managing Digital Discovery in Criminal Cases, 109 J. of Crim. L. and Criminology 237 (2019) at 249 n.70 (citations omitted). For video files, 1 TB is estimated to hold around 1,000 hours or about 40 days of video files. Id. Extrapolating to this case, even assuming for the sake of simplicity that all 68 terabytes consisted of video files, which take up significantly more space than documents and audio files, it would require 2,560 days or more than seven years to review all of the footage. Contrary to the State's assertion, the prosecution and defense are not “ on the same playing field. ” State's Response at 4. The prosecution has had the assistance of hundreds of investigators, law enforcement officers, prosecutors, and administrative staff from several different state and federal agencies working on this case and collecting, reviewing, and analyzing evidence. In addition to sheer manpower, the prosecution is using expensive, technologically powerful case management software that the defense does not have access to. According to its website, their case management system “ Prosecutor by Karpel ” allows for prosecutors to tag individuals in the case and pull up all documents related to them — both within a case and across cases; has a global search function to search all discovery and case documents at one time and even generate reports from such searches; and allows external individuals and agencies read-only access to the case and the ability to upload documents directly into the case system. See Prosecutor by Karpel, PbK: Case Management Software with Efficiency Enhancing Features, Person Centric (“ Comprehensive search and organization of data by person... Every time you update information on this person, REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION ΤΟ PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES RE: DISCLOSURE VIOLATIONS Page 3 the system automatically aligns the previous information ") ¹; id. at Information Management Features Enable Your Prosecutors to Do More in Less Time (“ Sifting through search results and going through mountains of paperwork just to find one piece of information saps valuable time that could be spent on more important tasks. PROSECUTORbyKarpel provides a wealth of features designed to not only find what you are looking for fast, but also to easily generate a report and share it with relevant parties. ") ²; id. (“ PROSECUTORbyKarpel has a powerful relational database that features broad search capabilities, so you can find your case information quickly and easily. "); id. at PbK Intergrates with the Court, Law Enforcement, Software, and More, External Agency Portal (“ PROSECUTORbyKarpel's External Agency Portal allows your justice partners “ view only ” privileges to basic case information and the ability to attach and submit supplemental media / documents to the Prosecutor's Office electronically. "). 3 The system also has the capacity to integrate with advanced evidence-management software including Axon Justice's Evidence.com, which has artificial intelligence capabilities including automatic transcriptions of audio and video files. See, e.g., “ Axon Evidence User and Administrator Reference Guide, ” Axon Auto-Transcribe a p.174 (“ No more having to watch every 1 Available at https://www.prosecutorbykarpel.com/efficiency (last visited March 22, 2025), saved at https://web.archive.org/web/20250322141834/https://www.prosecutorbykarpel.com/efficiency/. 2 Available at https://www.prosecutorbykarpel.com/information-management/ (last visited March 22, 2025), saved at https://web.archive.org/web/20250322142619/https://www.prosecutorbykarpel.com/information -management /. 3 Available at https://www.prosecutorbykarpel.com/integrations/#services (last visited March 22, 2025), saved at https://web.archive.org/web/20250322143312/https://www.prosecutorbykarpel.com/integrations / # services. 4 The defense does not know the extent to which prosecutors and LEOs at different agencies working on this case have access to such software, but they are widely available to the government and to law enforcement agencies. For example, the Latah County Sheriff's Office recently contracted with a similar technologically advanced evidence management software called “ POLARIS by Utility. " See https://www.utility.com/news/2024/04/19/latah-county-sheriffs-office-topurchase-a - new-state-of-the-art-digital-evidence-system /. REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION ΤΟ PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES RE: DISCLOSURE VIOLATIONS Page 4 moment of digital evidence. Instead, users can simply scan the auto-transcript to quickly survey what happened and jump to the significant section by clicking on the spoken words. "). 5 Despite access to sophisticated technology, the prosecution has not organized the discovery in a way that facilitates review. PDF files are provided without names that correspond to their contents. Individual PDF files contain several documents grouped together into one file. For example, a single pdf file might contain 17 different documents and be labelled “ Kohberger Unredacted 550-750. ” Thus, the defense must manually scroll through each PDF file to discern the number and type of documents it contains. Because the State protects each pdf with a password, it is extremely cumbersome to then separate the combined PDF into individual documents, which would allow the defense to rename and organize the documents individually. The State has refused to either provide the password or cease password-protecting the pdfs despite several requests. While redacted documents are sent through the case management system's integrated email system, the State provides hard drives containing audio and video files (without transcriptions) and unredacted reports that the defense must pick up in person. They must then be manually loaded into a shared storage file for defense team access. The subfolders of video and audio files must be recreated in the defense system one by one and the files then uploaded into each. Because transcripts were not routinely provided, even once these video or audio files are uploaded into the defense system, they are not searchable. Without the sophisticated technology that the prosecution has access to, the defense cannot conduct global searches of the documents turned over, nor “ tag ” individuals or topics in order to catalogue or group relevant documents together. It is necessary to individually open up a PDF in 5 Available at https://public.evidence.com/help/pdfs/latest/EVIDENCE.com+Administrator+Reference+Guid e.pdf, saved at https://web.archive.org/web/20250310170651/https://public.evidence.com/help/pdfs/latest/EV IDENCE.com + Administrator + Reference + Guide.pdf. REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION ΤΟ PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES RE: DISCLOSURE VIOLATIONS Page 5 order to use text search, and therefore the defense team cannot search the discovery unless it knows that something already exists and approximately where to find it. The State's assertion that it has provided an index of the discovery is misleading. The " index " is really an accounting of hard drives and groups of files and the dates they were turned over; it does not address the overarching problems regarding lack of organization, labels, and clarity about what is actually being discovered. For example, within the discovery response the State likens to an index, there is a chart that identifies almost the full range of videos provided in this case-nearly 1,000 — in which the only descriptions are “ audio / video files. ” See State's Response and Supplemental Responses to Defendant's Discovery Requests for Discovery (Sept 4, 2024) at 25. The same exists for large numbers of documents; for example, nearly 16,000 pages of Bates Stamped documents ” is described as “ documents and reports, ” and a “ Hard Drive " given on a specific date contains “ FBI One Drive – Production [number redacted]. ” Id. at 3. There are also several places in which the State asserts it has provided something related to a specific topic and then provides examples, specifically stating that the relevant documents and video / audio files " include but are not limited to ” those listed, making it impossible to know whether other relevant documents exist with the 68 terabytes of discovery. While there are some entries that provide more detail and can accurately be likened to an “ index, ” such as a list of reports by name beginning on page 7, this accounts for an extremely small fraction of the discovery provided in the case. Nor has the State facilitated defense review of the discovery in any other manner, such as by providing a list of “ hot documents " or by outlining the evidence they intend to use in a presentation to the defense. These types of efforts are common in large cases, even when those cases contain multitudes less discovery than here. See, e.g., United States v. Bussey, No. 5: 21-CR- 9, 2024 WL 4879865, at * 3 (S.D. Ga. Nov. 25, 2024) (in case involving 15 terabytes of data, the government took several steps to facilitate review including (1) providing an inventory of discovery; (2) organizing the discovery by seizing and producing agency, by category or type of REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION ΤΟ PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES RE: DISCLOSURE VIOLATIONS Page 6 evidence, by individuals, and by H-2A petitions, (3) offering assistance to defense counsel in reviewing discovery, explaining what was produced, and explaining how the productions were organized; and (4) meeting with defense counsel to present a PowerPoint outlining the evidence against the client); United States v. Skilling, 554 F.3d 529 (5th Cir. 2009) (the government provided a searchable electronic file, produced an index of “ hot documents ” indicating the documents that were important to its case as well as to documents that included potentially exculpatory evidence, and created a number of other databases to assist the defense's review of the evidence); United States v. Perraud, No. 09-60129-CR, 2010 WL 228013, at * 11 (S.D. Fla. Jan. 14, 2010) (“ the Government has separately directed Defendants to the materials it deems to be most relevant to this case, and it has given Defendants an index to the remaining searchable database to enable Defendants to focus their review efforts on those documents most likely to be relevant to Defendants ' defense. Moreover, the United States has provided Defendants with the same search capabilities upon which the Government must rely in reviewing the materials in the database. "); cf. Salyer, 2011 WL 1466887, at * 5 (“ When the amount of information in a criminal case reaches the hundreds of gigabytes / terabyte stage, the government should consider whether everyone is better served if this information is placed in a common data base. ") (citations omitted); id. at 6 (“ It is also clear that the defense team does not have access to the number of support staff available to the government. Even with a searchable data base, either from multiple sources or a common data base, culling the pertinent information with a degree of accuracy will take time. ”); The volume and format of discovery — which has been a constant issue in this case-is the backdrop to the present circumstances requiring relief. The State wants to paint away the problem by reducing it entirely to the size of the case. See State's Response at 10 (“ in essence the Defendant is arguing that in cases that involve a large amount of discovery such as this one, the death penalty cannot be pursued because there is so much information for defense counsel to review prior to trial "). But the death penalty must be precluded because whether by design or inattention, the REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION ΤΟ PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES RE: DISCLOSURE VIOLATIONS Page 7 defense continues to be inundated with late discovery and late expert disclosures mere months prior to trial, creating an untenable situation. This Court set a discovery deadline in September 2024 and an expert disclosure deadline of January 2025. Pursuant to that scheduling order, the defense would have had 10 months to engage with the discovery and determine priorities in preparation for trial, and more than six months to be aided in that review by completed expert disclosures largely laying out the State's case. But the State has not abided by these deadlines; for example, the State just turned over discovery that the defense specifically asked for more than one year ago. Among the documents are things dated November 2023-things that existed long before the State's discovery deadline and could have been turned over more than a year ago. And the late expert disclosures continue to roll in, even after the Motions in Limine deadline. As one court explained, each disclosure creates a cascading set of responsibilities for defense counsel; in addition to reviewing its contents, defense counsel must also file any relevant pretrial motions, the court must hold hearing on those motions and issue an order, and then the defense must integrate the information and " prepare for trial in light of those rulings. " United States v. Covington, No. 3: 15-CR-23, 2015 WL 3883522, at * 2 (E.D. Tenn. June 24, 2015) (granting continuance in criminal case involving four terabytes of data, described by the government as “ an immense universe of discovery ”). Thus, each and every late disclosure requires attention to be turned to the new disclosure, and to the attendant follow-up investigation, rebuttal, and / or litigation, and away from preparing for trial in a streamlined manner. There is truth to the assertion that “ the facts before the Court in Kohberger's case are nothing like the facts before the Court in the Vallow case. ” State's Response at 10. They are significantly worse because of the State's discovery abuses. As the State correctly points out, the judge precluded the death penalty in the Vallow Daybell case after the State turned over 100 hours of jail calls one (1) day after the discovery deadline and two weeks before trial. Though it would technically be possible to listen to all 100 REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION ΤΟ PRECLUDE THE DEATH PENALTY AND ADOPT OTHER NECESSARY PROCEDURES RE: DISCLOSURE VIOLATIONS Page 8 hours of recordings in two weeks, the Court recognized that the size and complexity of the case mattered. The Court concluded that the “ problem here is a timing problem ” and that “ prejudice has occurred because of the proximity to trial, the volume of discovery, and the inability of the defense to adequately review that discovery before trial begins. ” State's Response at 8-9 (quoting video proceedings of hearing). The mitigation specialists ' declaration, see State's Response at 8, explains the prejudice of late disclosures in a case already involving four terabytes of discovery: Sifting through such a huge number of investigative documents, audio and video files, and metadata and other scientific evidence, and determining how each piece of information applies to either the fact or mitigation (or both) sides of the defense case is a very timeconsuming job. There is absolutely no time to begin inve