Court Filing
CASE NO CR 29-22-2805
2023 June 22 4:36
CLERK OF DISTRICT COURT P.M.
Anne C. Taylor, Public Defender LATAH COUNTY Kootenai County Public Defender BY DEPUTY 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 LATAH
STATE OF IDAHO
CASE NUMBER CR29-22-0002805
Plaintiff,
V. DECLARATION OF ANNE C. TAYLOR
IN SUPPORT OF DEFENDANT'S THIRD
BRYAN C. KOHBERGER, MOTION TO COMPEL
Defendant.
I, Anne C. Taylor, do state and declare:
1. Counsel for Mr. Kohberger filed a specific request for discovery related to the DNA in this case titled Defendant's 3rd Supplemental Request for Discovery.
2. The State filed a specific response to that request. After reviewing the materials provided, the following remains to be discovered:
a. Request 3 Profiles uploaded to a DNA database: The State has provided information related to this request for the seized item the knife sheath only. The DECLARATION OF ANNE C. TAYLOR IN SUPPORT OF 3rd MOTION TO COMPEL Page 1
Defense has requested ALL DNA profiles, including three additional unidentified male DNA profiles developed during the course of law enforcement investigation.
This information has not been supplied.
b. Request 6. Communications: The State has not provided all emails, text messages, electronic messages or other messages and conversations regarding biological testing in this investigation.
c. Request 9 and 10. Unexpected results and corrective actions: This request has been partially complied with; however the response lacks the full scope of the request-6 month before and 6 months after testing related to this investigation.
Further, information relating to ALL lab personnel has not been provided.
3. Part of the Third Supplemental Discovery Request was for materials related to Genetic Genealogy Testing.
a. The State has objected to this request in its entirety, and has filed a Motion for a Protective Order. Counsel for Mr. Kohberger requests this Court consider the contemporaneous Objection to the State's motion and Declarations in Support of the Motion to Compel. The requested discovery is properly sought pursuant to Idaho Criminal Rule 16. This discovery is necessary to the preparation of Mr.
Kohberger's defense:
i. Counsel for Mr. Kohberger has reviewed the materials provided in this case regarding the DNA testing; laboratory reports, bench notes and photographs. Further, experts in the field of Genetic Genealogy and DNA have consulted and offered information and guidance. The State acknowledges it used genetic genealogy testing in this case but claims it does not have to produce the records in the specific request for discovery. The defense disagrees.
ii. Counsel has learned, through consultation with experts and sources referenced below, that the use of genetic genealogy databases does not necessarily lead to a single individual as a potential suspect and that reports of these searches often reference multiple individuals for further investigation and DNA testing. In fact, the State acknowledges such in its Motion for Protective Order when it acknowledges "... hundreds of relatives... " (page 5 motion for protection order). The testing conducted by DECLARATION OF ANNE C. TAYLOR IN SUPPORT OF 3rd MOTION TO COMPEL Page 2
a private lab is completely different in nature than the testing done by forensic labs. Genetic genealogy labs do not generate a " profile " in the same way that forensic labs do and there cannot be a direct comparison between the data obtained in this case by the Idaho State Forensic Crime Lab and the private lab. The tests used by private labs are either SNP (single nucleotide polymorphisms) or whole genome sequencing. These tests are similar to the methods used by commercial services such as 23andMe and Ancestry.com.
iii. Based upon information from experts in the field, I have learned that once a genetic genealogy profile is created and the testing by the private lab is completed, the profile is uploaded to a database that contains similar data from other individuals. Once the genetic genealogy profile is uploaded, the profile is compared within that database and relatives are identified.
iv. It is my understanding that once possible relatives have been identified, their identities are used to construct a family tree to identify possible suspects using public records and, in some instances, contacting individuals for further family information. This process leads to a pool of individuals rather than one specific individual. The possibility of other relatives who might be similar to Mr. Kohberger is extremely important to the Defense in this case. The processes used in this method of identification may be extremely important to Mr. Kohberger's defense. The timing and steps utilized are extremely important to Mr. Kohberger's case investigation and defense.
v. I have reviewed a copy of an Idaho State Police Announcement dated July 28, 2021, that the Idaho State Police Forensic Services Laboratory (ISPFS) secured a grant to fund genetic genealogy testing for unsolved Idaho cases.
See attached exhibit A ISPFS contracted with Othram Laboratories in Texas. See attached Exhibit A.
vi. The U.S. Dept. of Justice issued its Interim Policy for forensic genetic genealogical DNA analysis and search in 2019.
(https://www.justice.gov/olp/page/file/1204386/download). The policy describes the process that law enforcement engages in during these searches DECLARATION OF ANNE C. TAYLOR IN SUPPORT OF 3rd MOTION TO COMPEL Page 3
and the results and limitations of the method. The identified individuals are " one or more genetic associations " that " means that the donor of the (forensic or reference) sample may be related to a service user, " [emphasis added], which may require additional investigative work and testing. If a suspect is identified, the agency is required to retain " [a] ll FGG profiles, account information, and data for potential use during prosecution and subsequent judicial proceedings. " See attached Exhibit B vii. A new collaborative, National Technology Validation and Implementation Collaborative was established in 2022. Its purpose is to collaborate and formulate methods and policy for labs and law enforcement to establish Forensic Investigative Genetic Genealogy programs. This collaborative contributed to a forensic science journal. The publication includes contributors from Idaho; Rylene Nowlin Idaho State Police Forensic Services and Alana Minton Office of the Attorney General, State of Idaho.
This publication includes reference to the aforementioned U.S. Department of Justice Interim Policy. Of particular note is the policy of release of information in accordance with rules of discovery. See attached Exhibit C viii. I am aware of specific news reports in this case, regarding Mr. Kohberger's DNA, as published by the NY Times on June 11, 2023, that " FBI personnel worked with the profile that Othram had produced.... spending days building out a family tree that began with distant relatives. " ix. The NY Times sources have more information than the State has disclosed to the Defense. This NY Times article generated intense media coverage and interest, the scope of which is explained in the Truescope Report attached as Exhibit D.
x. In addition, Mr. Kohberger's defense team has discussed the use of statistics in this type of case with experts who have informed me that the manner of identifying Mr. Kohberger via this type of search may have significant impacts on the statistical analysis of the CODIS profile generated by the Idaho State Police Lab. Without access to the actual genetic genealogy search methods and results, it is impossible for qualified experts to address these issues.
DECLARATION OF ANNE C. TAYLOR IN SUPPORT OF 3rd MOTION TO COMPEL Page 4
xi. Counsel for Mr. Kohberger notes that the State utilized a statistical analysis number to claim a high likelihood of a match between the DNA on the sheath and that of Mr. Kohberger. The State, by its own admission, has taken a number of steps to identify Mr. Kohberger as a match. The statistical probability is not an absolute; the size of comparison sample and the nature of the search are important to ascertain conclusion bias.
xii. Mr. Kohberger has a right to effective assistance of counsel. He has a right to confront evidence. Counsel must undertake a thorough investigation of all parts of the case the State brings against Mr. Kohburger. As such the genetic genealogy investigation and process is necessary for the defense team to do its job.
I declare under penalty of perjury that the foregoing is true and correct, and that those matters stated upon information and belief are true to the best of my knowledge.
DATED this 22 day of June, 2023.
ANNE C. TAYLOR, PUBLIC DEFENDER
ΚΟΟΤΕΝAI COUNTY PUBLIC DEFENDER
an
BY:
ANNE TAYLOR
PUBLIC DEFENDER
ASSIGNED ATTORNEY
CERTIFICATE OF DELIVERY
I hereby certify that a true and correct copy of the foregoing was personally served as indicated below on the 22 day of June, 2023 addressed to:
Latah County Prosecuting Attorney -via Email: paservice@latahcountyid.gov
Elisa Massoth-via Email: legalassistant@kmrs.net
Ingrid Batey-via Email: ingrid.batey@ag.idaho.gov
Jeff Nye-via Email: jeff.nye@ag.idaho.gov Dul DECLARATION OF ANNE C. TAYLOR IN SUPPORT OF 3rd MOTION TO COMPEL Page 5
IDAHO GREAT SEAL
Idaho State Police OF
POLICE
STATE THE IDAHO
Service Since 1939
STATE
OF
Colonel Kedrick R. Wills Brad Little Director Governor
To: Idaho Chiefs, Sheriffs, and Prosecutors
From: Matthew Gamette, ISP Forensic Services Laboratory System Director
Subject: Cold Case Help -- Molecular Genealogy Resources
Date: July 28, 2021 The Idaho State Police Forensic Services Laboratory (ISPFS) is extremely excited to announce that we have secured a Bureau of Justice Assistance grant to fund genetic genealogy testing and searching of unsolved Idaho cases. The cases we are starting with are unsolved homicide, sexual assault, and missing person / unidentified remains cases. Idaho is the first state in the country to take the state-wide approach for this technology. Instead of each law enforcement (LE) agency having to negotiate their own contract, pricing, and quality control with a private lab and genealogist, ISPFS has done that at the state level through the Idaho Department of Purchasing. In addition, by ISPFS securing federal grant funding, we can offer these services to local, county, and state agencies at no cost to the local LE agency. In order to facilitate this, ISPFS has formed a State Genetic Genealogy Investigation team consisting of laboratory personnel, an Idaho State Police investigator / detective, and a representative from the Rocky Mountain Information Network (RMIN) to identify cases eligible for testing under this grant. Once a case is identified as eligible, the team is reaching out to the local law enforcement agency and prosecutor to bring them onto the team for that case. The state team is a resource for local LE. Idaho now has a formal contract with Othram Laboratories (a prominent leader in forensic genealogy) to conduct the genealogy testing and forensic genealogy searching. ISPFS is ensuring that Othram follows accepted laboratory processes and procedures, and complies with the United States DOJ interim policy on Forensic Genetic Genealogy DNA Analysis and Searching.
ISPFS has already searched our records for cases we know would be eligible under this program. We have started contacting individual Idaho law enforcement entities and prosecutors on approximately 15 of those cases. The law enforcement entity and prosecuting attorney are being asked to confirm certain case criteria and sign an MOU that they will investigate this case if the molecular genealogy technique generates investigative leads, that they will follow DOJ policy for investigating these cases, and that they will take all appropriate prosecution actions as an outcome of the investigation.
We want to be very clear that the local or county law enforcement agency will retain jurisdiction and responsibility for the case. The state team is in place to identify cases, coordinate with local entities, provide investigation resources (if requested), safeguard that the molecular genealogy technology and techniques are being appropriately used in Idaho, and ensure that all necessary resources are reliable and available at no cost to local LE for use of this technique. ISPFS is committed to ensuring that the lab science and genealogy work is robust, that the evidence is treated appropriately by the contract lab and in a way that allows for appropriate prosecution, and that the contract with the private lab and federal funding are spent appropriately. If more funding resources are needed to support this effort, ISPFS will obtain those resources in support of all Idaho law enforcement. ISPFS is also evaluating offering these services in Idaho if the need is demonstrated from this project.
We are accepting requests to work other cases that have not been identified by our team. If you have those cases, please reach out to our appointed project lead on this effort Ms. Rylene Nowlin. She can be reached at 208-884- 7148 or Rylene.Nowlin@isp.idaho.gov All cases accepted into this program are subject to an MOU.
700 S. Stratford Drive Meridian, Idaho 83642-6202
EQUAL OPPORTUNITY EMPLOYER
DEFENDANT'S
EXHIBIT NO. A
IDENTIFICATION / EVIDENCE
CASE NO CR29-22-2805
DATE: 6/22/23
UNITED STATES DEPARTMENT OF JUSTICE
INTERIM POLICY
FORENSIC GENETIC GENEALOGICAL DNA ANALYSIS AND SEARCHING
I. Purpose and Scope¹ The purpose of this interim policy is to promote the reasoned exercise of investigative, scientific, and prosecutorial discretion in cases that involve forensic genetic genealogical DNA analysis and searching (' FGGS '). 2 It provides guidance to Department agencies when formulating a thoughtful and collaborative approach to important interdisciplinary decisions in cases that utilize this investigative technique. Collaboration between investigators, laboratory personnel, and prosecutors is important because the decision to pursue FGGS may affect privacy interests, the consumption of forensic samples, and law enforcement's ability to solve violent crime.
The Department must use FGGS in a manner consistent with the requirements and protections of the Constitution and other legal authorities. Moreover, the Department must handle information and data derived from FGGS in accordance with applicable laws, regulations, policies, and procedures. When using new technologies like FGGS, the Department is committed to developing practices that protect reasonable interests in privacy, while allowing law enforcement to make effective use of FGGS to help identify violent criminals, exonerate innocent suspects, and ensure the fair and impartial administration of justice to all Americans.
The Department will continue to assess its investigative tools and techniques to ensure that its policies and practices properly reflect its law enforcement mission and its commitment to respect individual privacy and civil liberties. This interim policy establishes general principles for the use of FGGS by Department components during criminal investigations and in other circumstances that involve Department resources, interests, and equities.
The scope of this interim policy is limited to the requirements set forth herein. It does not control investigative, scientific, or prosecutorial activities or decisions not specifically addressed.
The Department's individual law enforcement components may issue additional guidance that is consistent with the provisions of this interim policy.
This interim policy provides Department components with internal guidance. It is not intended to, does not, and may not be relied upon to create any substantive or procedural rights or benefits enforceable at law or in equity by any party against the United States or its departments, agencies, entities, officers, employees, agents, or any other person in any matter, civil or criminal. This interim policy does not impose any legal limitations on otherwise lawful investigative or prosecutorial activities or techniques utilized by the Department of Justice, or limit the prerogatives, choices, or decisions available to, or made by, the Department in its discretion.
2 As used in this interim policy, the term ' forensic genetic genealogical DNA analysis and searching, ' or ' FGGS, ' means the forensic genetic genealogical DNA analysis of a forensic or reference sample of biological material by a vendor laboratory to develop an FGG profile and the subsequent search of that profile in a publicly-available opendata personal genomics database or a direct-to-consumer genetic genealogy service.
1 DEFENDANT'S
Approved: 09.02.2019 Effectiv EXHIBIT NO. B
IDENTIFICATION / EVIDENCE
CASE NO. CR29-22-2805
DATE: 6/22/23
II. Application
This interim policy applies to: 1) all criminal investigations in which an investigative agency in the Department of Justice (' investigative agency ') has exclusive or concurrent jurisdiction of the crime under investigation and the agency has lawful custody, control, or authority to use a forensic sample for FGG / FGGS; or 2) any criminal investigation in which the Department provides funding to a federal, state, local, or tribal agency to conduct FGG / FGGS; or
3) any criminal investigation in which Department employees or contractors conduct genealogical research on leads generated through the use of FGGS; or 4) any federal agency or any unit of state, local, or tribal government that receives grant award funding from the Department that is used to conduct FGG / FGGS.4 III. Background a. STR DNA Typing and CODIS Forensic DNA typing has historically been used to compare 13-20 STR DNA markers5 between a forensic sample and one or more reference samples. When a suspect's identity is unknown, a participating crime laboratory may upload a forensic profile into the FBI's Combined DNA Index System (CODIS). CODIS is a law enforcement database that compares DNA profiles derived from forensic samples to those of known offenders.
CODIS was created by the DNA Identification Act of 1994, Pub. L. No. 103-322 (1994), codified at 34 U.S.C. § 12592. This legislation authorized the FBI to create and maintain a national database comprised of designated DNA indices that are routinely searched against one another. If a CODIS search results in a confirmed match between a forensic profile and a known offender, a law enforcement lead is generated and the name of the matching offender is released.
If the search does not result in a confirmed match, no lead is generated.
3 As used in this interim policy, the term ' investigative agency ' includes any federal, state, local, or tribal law enforcement agency that receives funding from the Department of Justice to conduct FGG / FGGS.
4 The Department will implement this policy under its federal grant programs (as applicable) through the inclusion of a specific condition (s) in federal awards.
5 STR DNA typing is a widely-used forensic DNA technology that examines 13-20 (or more) genetic locations on the non-sex chromosomes that contain 2 to 6 base-paired segments known as nucleotides, which tandemly repeat at each location. A ' marker ' is a genetic locus, or location.
6 A ' forensic sample ' is biological material reasonably believed by investigators to have been deposited by a putative perpetrator and that was co