Notice of Intent Not to Cross Examine Defense Witnesses

CASE NO CR 29-22-2805

2023 August 29!!!!

CLERK OF DISTRICT COURT p.m
LATAH COUNTY

LATAH COUNTY PROSECUTOR'S OFFICE AM

WILLIAM W. THOMPSON, JR., ISB 2613 BY DEPUTY

PROSECUTING ATTORNEY

JEFF NYE, ISB 9238

SPECIAL ASSISTANT ATTORNEY GENERAL

Latah County Courthouse P.O. Box 8068 Moscow, ID 83843
Phone: (208) 883-2246 paservice@latah.id.us
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAH

STATE OF IDAHO, Case No. CR29-22-2805 Plaintiff,
V. NOTICE OF INTENT NOT TO

CROSS-EXAMINE DEFENSE

BRYAN C. KOHBERGER WITNESSES, DISTRICT COURT

Defendant. DECISION, AND RECORDS TO
EXPLAIN WITNESS CONTACT

At the hearing on the State's motion for a protective order and Defendant's third motion to compel, held on August 18, 2023, the Court allowed the State to reserve crossexamination of two witnesses: Gabriela Vargas, who the defense disclosed-without a CVthe day before the hearing, and Leah Larkin, for whom the defense disclosed a PowerPoint presentation for the first time during her direct examination. The State has determined that it need not cross-examine either of these witnesses.

In addition, the State mentioned during its argument at the hearing that Judge Whitney in Canyon County ruled on a similar issue one week prior to the hearing and that
NOTICE OF INTENT NOT TO CROSS-EXAMINE DEFENSE WITNESSES, DISTRICT COURT
DECISION, AND RECORDS TO EXPLAIN WITNESS CONTACT

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the State would provide the written ruling once available. The transcript of that hearing is now available, and the relevant portion of the transcript is attached as Exhibit A.

Finally, at the hearing on August 23, 2023, defense counsel suggested in open court that the State had improperly contacted Ms. Vargas. The State has attached under seal as Exhibit B the reports and other records that explain the contact.

The State would ask this Court to grant the requested protective order or permit the State to present the information it seeks to protect to the Court in an in-camera hearing.

A

RESPECTFULLY SUBMITTED this 29 day of 2023.

William W. Thompson, J Jeff Nye Prosecuting Attorney Special Assistant Attorney General
NOTICE OF INTENT NOT TO CROSS-EXAMINE DEFENSE WITNESSES, DISTRICT COURT
DECISION, AND RECORDS TO EXPLAIN WITNESS CONTACT

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CERTIFICATE OF DELIVERY

I hereby certify that true and correct copies of the NOTICE OF INTENT NOT TO
CROSS-EXAMINE DEFENSE WITNESSES, DISTRICT COURT DECISION, AND
RECORDS TO EXPLAIN WITNESS CONTACT was served on the following in the manner indicated below:
Anne Taylor Mailed Attorney at Law X E-filed & Served / E-mailed PO Box 9000 Faxed Coeur D Alene, ID 83816-9000 Hand Delivered Dated this 29th day of August, 2023.

S

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NOTICE OF INTENT NOT TO CROSS-EXAMINE DEFENSE WITNESSES, DISTRICT COURT
DECISION, AND RECORDS TO EXPLAIN WITNESS CONTACT

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Filed: 08/18/2023 13:23:10 Third Judicial District, Canyon County Chris Yamamoto, Clerk of the Court
By: Deputy Clerk-Harris, Angela
IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT

OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF CANYON

STATE OF IDAHO,) Case No. CR14-20-07840 ) Plaintiff,) ) VS.) Motion Hearing )
DAVID ALLEN DALRYMPLE,)

) Defendant.) )
TRANSCRIPT OF PROCEEDINGS

Held on August 11, 2023, before the Honorable Thomas W. Whitney District Court Judge
TRANSCRIPTION BY:

Kimberly R. Hofkins, RPR, CSR # 703 Canyon County Courthouse 1115 Albany Street Caldwell, Idaho 83605 kim.hofkins@canyoncounty.id.org
EXHIBIT A

i

INDEX

APPEARANCES

For the State: CANYON COUNTY PROSECUTORS OFFICE
CANYON COUNTY COURTHOUSE

By: Virginia Bond Theodore W. Lagerwall Sean Jorgensen 1115 Albany Caldwell, Idaho 83605
For the Defendant: CANYON COUNTY PUBLIC DEFENDERS
OFFICE

CANYON COUNTY ADMINISTRATION BLDG.

By: Gabriel McCarthy 111 Ν. 11th Ave, Suite 120 Caldwell, Idaho 83605 ii

REPORTER'S CERTIFICATE

STATE OF IDAHO)

) SS.

COUNTY OF CANYON)

I, KIMBERLY R. HOFKINS, RPR, CSR 23703%, one of the duly appointed qualified and acting official reporters of the Third Judicial District of the State of Idaho, do hereby certify that the foregoing transcript made of the proceedings in the matter of the motion hearing before the Honorable Thomas W.

Whitney is complete a transcription as I was able to make.

IN WITNESS WHEREOF, I have hereunto set my hand this 18th day of August 2023.

Bombily
KIMBERLY ERLY R. R. JOFKINS WOFKINS,, RPR, CSR # 703

iii

1 purchased Fairfax Identity Lab, and they were involved 2 in examination of one of the hairs recovered from the 3 victim's underwear, and that is why we are making this 4 request. That's the only way we can get this 5 information from them.

6 THE COURT: All right. So that motion is 7 granted. I will sign the order, or rather I will sign 8 the subpoena.

9 All right. The next issue is the state's 10 Motion in Limine for Nondisclosure or for a Protective 11 Order Barring Disclosure. That was filed on July 14, 12 2023.

13 And, Mr. Lagerwall, Mr. Jorgensen, who is 14 going to be addressing that issue?

15 MR. JORGENSEN: I'll be addressing that today, 16 Judge.

17 THE COURT: Okay. Do you wish to be heard on 18 that motion?

19 MR. JORGENSEN: Yes, Your Honor.

20 THE COURT: Go ahead, please.

21 MR. JORGENSEN: Thank you, Your Honor. So your 22 Honor, as to the legal argument contained in the 23 state's brief or Memorandum in Support of this Motion 24 in Limine I don't have much to add. So what I would 25 like to do is give the court for the record a general 20

1 overview of specifically what we're asking not be 2 disclosed and why. And then if the court has any 3 questions for me as to the nature of this investigative 4 genetic genealogy or to our legal argument, I will 5 defer to the court.

6 But the overarching purpose of this motion, 7 Judge, is to ensure that the state is fully transparent 8 both with the court and with the defense regarding the 9 investigation of the case and what evidence the state 10 will or, in this case, will not be introducing at 11 trial. Because as we know we will not be introducing 12 any of this evidence at trial, that is why we believe 13 it is not discoverable and is immaterial to the 14 defense's preparation.

15 That being said it is not the state's 16 prerogative to decide and dictate what is and is not 17 discoverable, and that is why we brought this motion 18 before the court.

19 With respect to what is investigative 20 genealogy, investigative genetic genealogy I would 21 just also note for the record that Section 3 in the 22 factual and procedural background of our memorandum is 23 really more an offer of proof, or rather the state's 24 recitation of the facts as we understand them.

25 Sections 1 and 2 really just detail the 21

1 history of the case. I don't think there's any dispute 2 as to that background. But as to Section 3 I just want 3 to clarify we are not asking the court to make findings 4 of fact. We are offering to the court our 5 understanding of this investigative practice.

6 So with that, what is investigative genetic 7 genealogy. I would begin by noting I am not a 8 scientist. This information that we are proffering to 9 the court is really a broad overarching layman's 10 perspective and understanding of what this DNA profile 11 is and what was done with it with respect to the 12 genealogy part of the investigation.

13 So I begin first by noting the difference 14 between STR and SNP, or SNP, in the context of DNA 15 science.

16 Now, STR stands force short tandem repeat.

17 When we think of DNA evidence just colloquially, 18 culturally, that is generally what we're talking about 19 is this short tandem repeat profile that is obtained 20 from a sample of DNA at a crime scene and is then 21 screened through the CODIS database.

22 So what a short tandem repeat is is this is 23 a technique that has been again, according to my 24 understanding has been developed by DNA scientists 25 over the course of decades. And the purpose of it is 22

1 basically to identify the portions of the genome where 2 we see the greatest variability.

3 So human beings, just as a species, share 4 approximately 99.9 percent of their DNA. So STR is a 5 technique that is designed to get to that.01 percent 6 or approximately 3 million points of data from the DNA.

7 So the genome has approximately 3 billion. STR looks 8 at 3 million specific points. And those are taken from 9 particular loci or locations along the various 10 chromosomes. So every individual has 23 chromosomes.

11 22 are autosomes where all that genetic information is, 12 and then the 23rd is an X or a Y which determines the 13 individual's sex.

14 And so STR looks again at specific points, 15 and it compares those for variability. And from that 16 scientists are able to gain probability estimates to 17 link a sample to a suspect.

18 An SNP or a SNP is a single nucleotide 19 polymorphism. Now, in STR these variability points, 20 they're summarized in letters Ts, As, Cs, and Gs.

21 Each one of those T and A or T and T or C and G, that 22 is a single nucleotide polymorphism is a SNP.

23 In cases such as this where the genetic 24 material that was found at the crime scene, or in this 25 case found in the victim's underwear, that particular 23

1 in this case it was a hair. That particular hair 2 may not contain enough genetic information to get an 3 entire STR profile. That was the case in this case.

4 And so when the state sent the hair that was 5 tested by Dr. Green to his lab at UC Santa Cruz what 6 Dr. Green's methodology is is to use his proprietary 7 and developed method to extract essentially every SNP 8 that he can from that hair. Every single single 9 every single nucleotide polymorphism that he can 10 extract he extracts.

11 Now, again, that doesn't necessarily give 12 him enough for an STR profile, but what it did do in 13 this case is it enabled him to create a SNP profile 14 that can be used for genealogical purposes.

15 Now, what we're talking about with SNP 16 profile for genealogical purposes is ultimately really 17 the same thing that we're now familiar with in our 18 common everyday culture with things such as 19 Ancestry.com.

20 For example, I myself got an Ancestry.com 21 profile for me. I had to spit in a little tube. You 22 send your spit off. They make a SNP profile, and they 23 upload into their database. And that's precisely what 24 investigative genetic genealogy is.

25 So from this SNP profile that Dr. Green 24

1 developed from his testing of that hair, an 2 investigator uploaded that profile into a genealogical 3 database, just as you or I would with Ancestry or 23 4 and Me. Something along those lines.

5 In this case particularly as we noted in 6 chambers the investigator was affiliated with the FBI.

7 And then the database, whatever database they use, that 8 is a private company, a private third-party. And so 9 the state the state does not have any information 10 from that private third-party or from the FBI that we 11 could tender to defense at this time. We're not 12 certain what we could or would get if we were ordered 13 by the court to try.

14 But the point that we want to make is 15 regardless of the court's ruling on that this was 16 simply an investigative technique that was aimed at 17 trying to find a suspect. And, again, it's not going 18 to be used at trial because the whole purpose of it is 19 simply to identify potential suspects.

20 Once a genealogist constructs a family tree 21 and identifies a particular family line that may be 22 connected to again that hair from which the SNP profile 23 was derived, it is incumbent on law enforcement to then 24 find their own independent evidence to investigate 25 those individuals to determine whether there is actual 25

1 reason to believe any of them may have committed this 2 crime.

3 And just to emphasize, the genealogist is 4 doing the same sort of genealogy that you and I would 5 do with an Ancestry-type profile. There is, of course, 6 the added reality that law enforcement has access to, 7 you know, databases and things that a common citizen 8 would not. But, again, it is purely investigative.

9 It's purely for a lead or a tip to give investigators a 10 potential avenue to investigate the suspect again 11 independently.

12 And so that is why we're not introducing it 13 at trial. It was just an investigation. It is not 14 substantive evidence. And that again is why we believe 15 it is not discoverable.

16 And as I noted at the outset, Your Honor, 17 our brief I think really says all that needs to be said 18 about Rule 16 and our position as to how it relates to 19 this type of investigation. If the court has any 20 questions for me on that, I would be happy to address 21 it or any additional questions as to IGG.

22 THE COURT: So take your time.

23 MR. JORGENSEN: So, Your Honor, sorry about that.

24 I will get to your question. Mr. Lagerwall just wanted 25 me to take a brief moment to clarify some of the 26

1 science that I summarized with respect to STR.

2 SO STR I think I generally described it 3 correctly, but specifically it is a genotyping of 4 allele length at defined loci along these chromosomes.

5 And then an allele being a variation of a gene at that 6 locus. So that's the variability we're talking about.

7 I just wanted to make sure we're accurate for the 8 record as to again our description of that practice.

9 With that, Your Honor, I would be happy to 10 address your questions.

11 THE COURT: So genealogical databases of some 12 sort were used to narrow down the search by law 13 enforcement in this case. But those databases were not 14 used to specifically identify Mr. Dalrymple as the 15 person the state believes to have committed the crime 16 in this case. Is that accurate?

17 MR. LAGERWALL: That is my understanding, Your 18 Honor. My understanding is that the genealogical work 19 that was done identified the Dalrymple family line, and 20 then it was from it was that information that our 21 local law enforcement used to begin looking into 22 various members of the Dalrymple family, ultimately 23 identifying Mr. Dalrymple as their prime suspect.

24 THE COURT: Got it. Okay. All right. I don't 25 have any other questions. And thank you very much, 27

1 Mr. Jorgensen.

2 MR. JORGENSEN: Thank you, Judge.

3 THE COURT: Mr. McCarthy, are you ready to be 4 heard on this motion, or do you need a break to talk to 5 Mr. Dalrymple?

6 MR. MCCARTHY: I'm ready. And my comments will 7 be brief.

8 THE COURT: Okay. You can go ahead.

9 MR. MCCARTHY: Judge, I'm not sure that I 10 understand the controversy that the state is bringing 11 before the court. As long as the state turns over 12 every document and tangible item in their possession or 13 in state law enforcement's possession, then I believe 14 that they've complied with discovery.

15 If there is if there is discoverable 16 information out there that for some reason they want a 17 protective order, then I'd ask that they file a motion 18 for a protective order. And if it's reasonable, we 19 would agreed to not share it with outside parties as 20 long as the defense has complete access to it.

21 I don't so I don't have any objection to 22 the court entering an order as long as it preserves the 23 disclosure of the scope of the discovery that I've 24 described, and as long as it does not foreclose the 25 defense in the future filing either a Motion to Compel, 28

1 one, or, two, a Motion to Exclude evidence if 2 discoverable information has not been provided to the 3 defense.

4 I don't I don't have any information that 5 that has occurred today. I don't know what's going to 6 happen in the future. So as long as we get everything 7 discoverable from the state, and as long as we can file 8 motions in the future if we want to, I don't have any 9 objection to whatever order that the court wants to 10 enter.

11 THE COURT: All right. Thank you, Mr. McCarthy.

12 Mr. Jorgensen, anything further?

13 MR. JORGENSEN: Yes, Judge. Just a brief 14 response to Mr. McCarthy's point. First, I forgot to 15 note for the record that with respect to the SNP 16 profile itself, that SNP profile that was uploaded to a 17 database to begin the genealogical research, that will 18 be tendered to defense. At the moment it remains in 19 Dr. Green's possession. There will be additional 20 testing. And once everything is done, the defense will 21 get that. So the defense can essentially recreate a 22 genealogical investigation if they see fit.

23 As to the substance of Mr. McCarthy's 24 comments I would I'd simply voice my concern that 25 the state's the purpose of the state's motion is 29

1 essentially to seek an order from the court finding 2 that the IGG information as we've described it that is 3 in the possession of outside third-parties the FBI 4 and databases, private companies that we are not 5 obligated to disclose that. Again, I don't know what 6 we could reasonably expect to discover if we had to 7 attempt to obtain any of that documentation. And I 8 would note for the record as well that anything we have 9 as far as physical documentation will go to defense, 10 including again that SNP profile.

11 So I don't think it would make sense to 12 leave open the possibility of a Motion to Compel 13 because what we're really asking the court to rule on 14 is that the state is correct in its assessment that we 15 do not have an obligation under Rule 16 to pursue or 16 disclose any additional information that is not in our 17 possession at this time.

18 THE COURT: All right. Thank you, Mr. Jorgensen.

19 Mr. McCarthy, anything else?

20 MR. MCCARTHY: Judge, I'd ask that the court not 21 enter that order because it because I don't know 22 what I don't know. The defense doesn't know what it 23 doesn't know in that we haven't filed a Motion to 24 Compel. I trust that the state has disclosed 25 everything or will disclose every document, tangible 30

1 item, everything subject to Rule 16, but I don't want 2 an order out there that stops the state from taking any 3 affirmative action in the future that I mean, 4 frankly, I just don't know what the investigation is.

5 I don't know the people to contact and everything.

6 And also apparently we're talking about an 7 investigation that was partially conducted by the FBI.

8 And I'm not prepared to answer anything about that 9 today. I understand that Mr. Lagerwall and 10 Mr. Jorgensen don't have fiat over the FBI and can't 11 order them around. But I'm not prepared to answer 12 today what obligations the State of Idaho has with 13 respect to information that an investigation that 14 was conducted by federal authorities and whether or not 15 you can say today, well, just forget about it, you 16 don't have to look into it any further.

17 So I just think that what we're talking 18 about right now would just be the subject of a Motion 19 to Compel if the defense chose to bring one later. But 20 we haven't done that, and I don't know that we will.

21 And so I don't know that the court needs to enter an 22 order at all.

23 THE COURT: All right. Thank you.

24 Well, let me start with the motion itself.

25 Again, it was filed on July 14th, 2023. And it's 31

1 entitled State's Motion in Limine for Nondisclosure or 2 in the Alternative Motion for Protective Order Barring 3 Disclosure.

4 And in the first paragraph here's what the 5 state is seeking, quote, " An order finding that the 6 state is not required to disclose any information 7 relating to the use of investigative genetic genealogy, 8 (IGG),, as an investigative technique in this case, " 9 unquote.

10 So that's overbroad. I understand what 11 you're arguing, Mr. Jorgensen. I am going to enter an 12 order that you're not obligated the state is not 13 obligated to disclose any genealogical database not in 14 its possession.

15 So the databases that were used during the 16 IGG process my understanding is you don't possess them.

17 That's ri