Response to State Notice Regarding Defense Witnesses

Electronically Filed
9/1/2023 3:25 PM

Second Judicial District, Latah County Julie Fry, Clerk of the Court
By: Tamzen Reeves, Deputy Clerk Anne C. Taylor, Public Defender Kootenai County Public Defender PO Box 9000 Coeur d'Alene, Idaho 83816
Phone: (208) 446-1700; Fax: (208) 446-1701
Bar Number: 5836 iCourt Email: pdfax@kcgov.us Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, Idaho 83661
Phone: 208-642-3797; Fax: 208-642-3799 Assigned Attorney:
Anne C. Taylor, Public Defender, Bar Number: 5836 Jay W. Logsdon, Chief Deputy Public Defender, Bar Number: 8759 Elisa G. Massoth, Attorney at Law, Bar Number: 5647
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAН

STATE OF IDAHO CASE NUMBER CR29-22-2805

Plaintiff, RESPONSE TO STATE'S NOTICE OF
INTENT NOT TO CROSS-EXAMINE

V. DEFENSE WITNESSES, DISTRICT

COURT DECISION, AND RECORDS TO

BRYAN C. KOHBERGER, EXPLAIN WITNESS CONTACT

Defendant.

COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby responds to the State's Notice of Intent Not to Cross-Examine Defense Witnesses, District Court Decision and Records to Explain Witness Contact.

RESPONSE TO STATE'S NOTICE OF INTENT NOT TO CROSS-EXAMINE

DEFENSE WITNESSES, DISTRICT COURT DECISION, AND RECORDS TO

EXPLAIN WITNESS CONTACT Page 1

PROCEURAL HISTORY

This Court conducted a hearing on August 18, 2023 on Mr. Kohberger's Third Motion to Compel. Four witnesses testified for the defense and the State reserved the right to crossexamine two witnesses. On August 30, 2023, the State filed notice that it does not intend to reopen the hearing and cross-examine the two witnesses.

RESPONSE

Referenced in the State's Notice of Intent Not to Cross-Examine Defense Witnesses, District Court Decision, and Records to Explain Witness Contact (“ State's Notice ”) are a Third District Court Transcript from CR14-20-07840. Mr. Kohberger's defense team has reviewed the exhibit and provides the following response.

At first blush it appears the issue before Judge Whitney in State v. Dalrymple CR14-20- 07840 was that the State was seeking a protective order relating to a database that produced information leading to Mr. Dalrymple's arrest. However, the decision Judge Whitney announced was on a different issue and was made without the benefit of expert testimony relating to the Forensic / Investigative Genetic Genealogy process. It is noteworthy that even without the benefit of that testimony Judge Whitney concluded that the State needed to turn over in discovery everything in its possession relating to Genetic Genealogy and the defense was welcome to bring further motion on the issue.

This Court's is asked to decide something different. The information sought by Mr.

Kohberger, through his motion to compel, is the same information that the State seeks to protect with it motion for protective order: the SNP profile created on behalf of the State and the genetic genealogy process directly used by the State to identify Mr. Kohberger. Mr. Kohberger is not asking for a genetic genealogy database, rather the analysis and documentation utilized to
RESPONSE TO STATE'S NOTICE OF INTENT NOT TO CROSS-EXAMINE

DEFENSE WITNESSES, DISTRICT COURT DECISION, AND RECORDS TO

EXPLAIN WITNESS CONTACT Page 2

identify him. Mr. Kohberger has also asked for the SNP profile and the state has agreed to provide it.¹ This Court is left to decide whether to shield the analysis and documentation developed and used to identify Mr. Kohberger or to order it be provided for his defense. This Court makes its decision with the benefit of expert Steve Mercer explaining the duties of attorneys to examine this evidence and the types of legal decisions that could be made based on this evidence. This court has the benefit of knowing, based on expert testimony, how SNP results are produced using bioinformatics. Further, expert testimony described how genetic genealogy tracing is conducted and the documents generated by a genetic genealogist showing the analysis and result. Further, this court has the benefit of expert testimony describing how SNP testing can be compared against STR testing for contaminants and mixtures as well as how the SNP and genealogical data can impact statistics. Lastly, this court has knowledge of the intricacies of prohibited law enforcement access to various DNA databases. The testimony the court received in the hearing relating to this loophole is not something Judge Whitney had the benefit knowing. It is important for the court to be aware that this same information has now been published on August 18, 2023 in the Intercept. This article details Forensic Genetic Genealogy and the loopholes utilized to obtain information in contradiction of authorization. (Attached as Exhibit A) The Intercept is an online journal that has existed since 2014. Open source information states this is an award winning news organization dedicated to exposing the powerful and holding them accountable.

1 The State wrote, in its June 2023 Motion for Protective Order that it would provide the SNP profile. Again, during the August 18, 2023 hearing the State stated it would provide the SNP profile. At this time Mr. Kohberger has not been given this information.

RESPONSE TO STATE'S NOTICE OF INTENT NOT TO CROSS-EXAMINE

DEFENSE WITNESSES, DISTRICT COURT DECISION, AND RECORDS TO

EXPLAIN WITNESS CONTACT Page 3

The court in State v. Dalrymple also lacked the following documents that establish the relationship between the Idaho State Forensic Laboratory, local police departments, and prosecuting entities in the State of Idaho. This Court received such documentation attached to the Declaration of Anne C. Taylor in Support of Third Motion to Compel. The agreement is attached again herein as Exhibit B. This memorandum shows that Idaho utilizes Federal money to work with Othram laboratories to identify suspects in certain cases. This memorandum shows the intricate relationship between agencies for identifying which cases qualify for identification through genetic genealogy.

In Mr. Kohberger's case the Latah County Prosecutor, the Moscow Police Department, the Idaho State Police and the FBI worked together to investigate the case and identify a suspect.

At some point Genetic Genealogy was utilized for identification. That information remains withheld from Mr. Kohberger. Mr. Kohberger does not even know when this began or when he was supposedly identified.

The memorandum contains a requirement that the Federal Department of Justice Policies (hereinafter “ DOJ ”) must be adhered to and that agencies must sign a memorandum of agreement to follow such policies the DOJ has a policy, regarding Forensic Genetic Genealogical DNA Analysis and Searching. (This policy was attached to Taylor Dec. in Support of Third Motion to Compel, and is again attached herein as Exhibit C.) That policy requires that the prosecutor and investigating agency collaborate (see p. 5-6). That policy also requires that investigative agencies only enter and search DNA data bases that permit law enforcement to use their services (see p. 6). That policy requires that all Forensic Genetic Genealogy “ profiles, account information, and data shall be retained by the investigative agency for potential use
RESPONSE TO STATE'S NOTICE OF INTENT NOT TO CROSS-EXAMINE

DEFENSE WITNESSES, DISTRICT COURT DECISION, AND RECORDS TO

EXPLAIN WITNESS CONTACT Page 4

during prosecution and subsequent judicial proceedings. " (see p.7) There is a relationship between local, state and the federal government to work together. DOJ policy requires retention of analysis and materials for use in judicial proceedings. This knowledge, in addition to the potential for misuse of information is something that is discoverable and necessary to Mr.

Kohberger.

Idaho Rule of Criminal Procedure 16 (a) reads:
the prosecuting attorney's obligations under this paragraph extend to material and information in the possession or control of members of prosecuting attorney's staff and of any others who have participated in the investigation or evaluation of the case who either regularly report, or have reported in that case, to the office of the prosecuting attorney.

The duty of disclosure “ is an obligation of not just the individual prosecutor assigned to the case, but of all the government agents having a significant role in investing and prosecution the offense. " State v. Garnder, 126 Idaho 428, 433 (Ct. App. 1994). The FBI has been compelled to turn over its CAST report related to cellular data evidence and its investigation related to identification of the car. The investigation related to the car included hundreds of names of individuals owning white a white Elantra. The evidence held regarding DNA is no different.

The court in Dalrymple incorrectly permitted the State to hide material from the defense by claiming they did not have it. That is not how discovery works when the State decides to work with outside agencies to take liberty from someone. This Court has thus far shown that the FBI does not exist outside the discovery rules. It should not grant them immunity now.

CONCLUSION

The transcript provided from the Judge Whitney does little to instruct this court about what should be decided. This court has a different question – Mr. Kohberger requests materials
RESPONSE TO STATE'S NOTICE OF INTENT NOT TO CROSS-EXAMINE

DEFENSE WITNESSES, DISTRICT COURT DECISION, AND RECORDS TO

EXPLAIN WITNESS CONTACT Page 5

and analysis not a database. These materials are required by the DOJ to be retained for use in judicial proceedings. This Court has the benefit of understanding the process and the materials that were created in this identification of Mr. Kohberber by the state and its agents. Mr.

Kohberger respectfully requests the Court Order the state to disclose the materials. Mr.

Kohberger is happy to comply with any limiting order the Court deems appropriate.

DATED this 1 day of September, 2023.

ANNE C. TAYLOR, PUBLIC DEFENDER

ΚΟΟΤΕΝΑI COUNTY PUBLIC DEFENDER

an
BY:

ANNE TAYLOR

PUBLIC DEFENDER

CERTIFICATE OF DELIVERY

I hereby certify that a true and correct copy of the foregoing was personally served as indicated below on the 1 day of September, 2023 addressed to:
Latah County Prosecuting Attorney –via Email: paservice@latahcountyid.gov Elisa Massoth – via Email: legalassistant@kmrs.net Dul
RESPONSE TO STATE'S NOTICE OF INTENT NOT TO CROSS-EXAMINE

DEFENSE WITNESSES, DISTRICT COURT DECISION, AND RECORDS TO

EXPLAIN WITNESS CONTACT Page 6

POLICE ARE GETTING DNA

DATA FROM PEOPLE WHO

THINK THEY OPTED OUT

Forensic genetic genealogists skirted GEDmatch privacy rules by searching users who explicitly opted out of sharing DNA with law enforcement.

Jordan Smith August 18 2023, 11:10 a.m.

DONATE -

018 @ pree-peds B Otherwise, your sampre
ONAOSMOTEK

8476107 FILL

900 107 100-009-090 TO

in bag Mail in kit 4 Detach funnel / 5 Seal 3 Close funnel Screw on cap drink 2 Spit to fill line 1 No food minutes or for 30 The DNA kit genetic genealogist CeCe Moore used to help a woman find her biological mother on June 8, 2015.

Photo: MediaNews Group via Getty Images
DEFENDANT'S

EXHIBIT NO. A

IDENTIFICATION / EVIDENCE

CASE NO-CR29-22-2805

DATE: 9/1/23

CECE MOORE, AN actress and director-turned-genetic genealogist, stood behind a lectern at New Jersey's Ramapo College in late July.

Propelled onto the national stage by the popular PBS show " Finding Your Roots, " Moore was delivering the keynote address for the inaugural conference of forensic genetic genealogists at Ramapo, one of only two institutions of higher education in the U.S. that offer instruction in the field. It was a new era, Moore told the audience, a turning point for solving crime, and they were in on the ground floor.

" We've created this tool that can accomplish so much, " she said.

Genealogists like Moore hunt for relatives and build family trees just as traditional genealogists do, but with a twist: They work with law enforcement agencies and use commercial DNA databases to search for people who can help them identify unknown human remains or perpetrators who left DNA at a crime scene.

The field exploded in 2018 after the arrest of Joseph James DeAngelo as the notorious Golden State Killer, responsible for more than a dozen murders across California. DNA evidence collected from a 1980 double murder was analyzed and uploaded to a commercial database; a hit to a distant relative helped a genetic genealogist build an elaborate family tree that ultimately coalesced on DeAngelo. Since then, hundreds of cold cases have been solved using the technique. Moore, among the field's biggest evangelists, boasts of having personally helped close more than 200 cases.

The practice is not without controversy. It involves combing through the genetic information of hundreds of thousands of innocent people in search of a perpetrator. And its practitioners operate without meaningful guardrails, save for " interim " guidance published by the Department of Justice in 2019.

The last five years have been like the " Wild West, ” Moore acknowledged, but she was proud to be among the founding members

of the Investigative Genetic Genealogy Accreditation Board, which is developing professional standards for practitioners. " With this incredibly powerful tool comes immense responsibility, " she solemnly told the audience. The practice relies on public trust to convince people not only to upload their private genetic information to commercial databases, but also to allow police to rifle through that information. If you're doing something you wouldn't want blasted on the front page of the New York Times, Moore said, you should probably rethink what you're doing. “ If we lose public trust, we will lose this tool. " Despite those words of caution, Moore is one of several high-profile genetic genealogists who exploited a loophole in a commercial database called GEDmatch, allowing them to search the DNA of individuals who explicitly opted out of sharing their genetic information with police.

Join Our Newsletter Original reporting. Fearless journalism. Delivered to you.

Email address I'm in By signing up, I agree to receive emails from The Intercept and to the Privacy Policy and Terms of Use.

The loophole, which a source demonstrated for The Intercept, allows genealogists working with police to manipulate search fields within a DNA comparison tool to trick the system into showing opted-out profiles. In records of communications reviewed by The Intercept, Moore and two other forensic genetic genealogists discussed the loophole and how to trigger it. In a separate communication, one of the genealogists described hiding the fact that her organization had made an identification using an opted-out profile.

The communications are a disturbing example of how genetic genealogists and their law enforcement partners, in their zeal to close criminal cases, skirt privacy rules put in place by DNA database companies to protect their customers. How common these practices are remains unknown, in part because police and prosecutors have fought to keep details of genetic investigations from being turned over to criminal defendants. As commercial DNA databases grow, and the use of forensic genetic genealogy as a crime-fighting tool expands, experts say the genetic privacy of millions of Americans is in jeopardy.

Moore did not respond to The Intercept's requests for comment.

To Tiffany Roy, a DNA expert " If we can't trust these and lawyer, the fact that genetic genealogists have practitioners, we accessed private profiles certainly cannot trust while simultaneously law enforcement. " preaching about ethics is - troubling. " If we can't trust these practitioners, we certainly cannot trust law enforcement, " she said. " These investigations have serious consequences; they involve people who have never been suspected of a crime. " At the very least, law enforcement actors should have a warrant to conduct a genetic genealogy search, she said.

" Anything less is a serious violation of privacy. "

Meg Kelly 1000000 CeCe Moore appears as a guest on " Megyn Kelly Today " on Aug. 14, 2018. Photo: Zach Pagano / NBCU Photo Bank / NBCUniversal via Getty Images The Wild West Forensic genetic genealogy evolved from the direct-to-consumer DNA testing craze that took hold roughly a decade ago. Companies like 23andMe and Ancestry offered DNA analysis and a database where results could be uploaded and searched against millions of other profiles, offering consumers a powerful new tool to dig into their heritage through genetics.

It wasn't long before entrepreneurial genealogists realized this information could also be used to solve criminal cases, especially those that had gone cold. While the arrest of the Golden State Killer captured

national attention, it was not the first case solved by forensic genetic genealogy. Two weeks earlier, genetic genealogists Margaret Press and Colleen Fitzpatrick joined officials in Ohio to announce that " groundbreaking work " had allowed authorities to identify a young woman whose body was found by the side of a road back in 1981.

Formerly known as " Buckskin Girl " for the handmade pullover she wore, Marcia King was given her name back through genetic genealogy.

" Everyone said it couldn't be done, " Press said.

MOST READ

Georgia GOP Gears Up to Biden Administration Adds NSA Orders Employees to Spy Remove Atlanta Prosecutor Insulin to Drug Price on the World " With Dignity an Who Indicted Donald Trump Negotiation List in Major Blow Respect " Akela Lacy to Big Pharma Ken Klippenstein Ryan Grim The type of consumer DNA information used in forensic genetic genealogy is far different from that uploaded to the Combined DNA Index System, or CODIS, a decades-old network administered by the FBI.

The DNA entered in CODIS comes from individuals convicted of or arrested for serious crimes and is often referred to as " junk " DNA: short pieces of unique genetic code that don't carry any individual health or trait information. “ It's not telling us how the person looks. It's not telling us about their heritage or their phenotypic traits, " Roy said. " It's a string of numbers, like a telephone number. " In contrast, the DNA testing offered by direct-to-consumer companies is " as sensitive as it gets, " Roy said. " It tells you about your origins. It tells you about your relatives and your parentage, and it tells you about your disease propensity. " And it has serious reach: While CODIS searches the

DNA of people already identified by the criminal justice system, the commercial databases have the potential to search through the DNA of everyone else.

Individuals can upload their test results to any number of databases; at present, there are five main commercial portals. Ancestry and 23andMe are the biggest players in the field, with databases containing roughly 23 million and 14 million profiles. Individuals must test with the companies to gain access to their databases; neither allow DNA results obtained from a different testing service. Both Ancestry and 23andMe forbid police, and the genetic genealogists who work with them, from accessing their data for crime-fighting purposes. " We do not allow law enforcement to use Ancestry's service to investigate crimes or to identify human remains " absent a valid court order, Ancestry's privacy policy notes. The two companies provide regular transparency reports documenting law enforcement requests for user information.

MyHeritage, home to some 7 million DNA profiles, similarly bars law enforcement searches, but it does allow individuals to upload DNA results obtained from other sources.

And then there are FamilyTreeDNA and GEDmatch, which grant police access but give users the choice of opting in or out. Both allow anyone to upload their DNA results and have upward of 1.8 mill