Court Filing
CASE NO. CR 29-22-2805
2023 June 16 3:28 CLERK OF DISTRICT COURT p.m
LATAH COUNTY PROSECUTOR'S OFFICE LATAH COUNTY
CM
WILLIAM W. THOMPSON, JR., ISB 2613 BY
PROSECUTING ATTORNEY DEPUTY
JEFF NYE, ISB 9238
SPECIAL ASSISTANT ATTORNEY GENERAL
Latah County Courthouse P.O. Box 8068 Moscow, ID 83843
Phone: (208) 883-2246 paservice@latahcountyid.gov
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. MOTION FOR PROTECTIVE
ORDER
BRYAN C. KOHBERGER
Defendant.
COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and respectfully moves the Court for a protective order pursuant to I.C.R. 16 (1) for information related to Investigative Genetic Genealogy. This case arises from a quadruple homicide. Law enforcement found the DNA of a potential suspect at the crime scene, and the FBI submitted the DNA to one or more publicly available genetic genealogy services to determine potential relatives of the suspect. The FBI then used common genealogical techniques to develop a family tree leading to Defendant. The State seeks to protect from disclosure the names and personal information of the hundreds of innocent relatives on the family tree, the names of the publicly available genetic genealogy services used, and certain
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other information described below. The disclosure of this information is not required by Rule 16 of the Idaho Criminal Rules and should be protected from disclosure for the good cause described below, including the State's privilege to protect the identity of informers as described in Idaho Rule of Evidence 509.
FACTUAL BACKGROUND
On November 13, 2022, law enforcement found the bodies of Madison Mogen, Kaylee Goncalves, Xana Kernodle, and Ethan Chapin at 1122 King Road in Moscow, Idaho.
All four victims died from apparent knife wounds. Law enforcement found a Ka-Bar knife sheath on a bed next to the bodies of Madison and Kaylee. The sheath was face down and partially under both Madison's body and the comforter on the bed. Law enforcement seized the Ka-Bar knife sheath pursuant to a search warrant. The Idaho State Police Lab in Meridian, Idaho, located DNA on the Ka-Bar knife sheath. The ISP laboratory determined the DNA came from a single source and that the source was male.
Once law enforcement had single-source DNA from the Ka-Bar knife sheath, they conducted what is called a short tandem repeat (" STR ") analysis. STR DNA analysis involves looking at 20 regions within human DNA and allows law enforcement to make a direct comparison between two STR DNA profiles. Law enforcement submitted the STR DNA profile obtained from the Ka-Bar knife sheath to the Combined DNA Index System (" CODIS "), a database of STR DNA profiles from convicted offenders, arrestees, and crime scene evidence, to identify the source of the DNA. No match was found.
Unable to find a match using STR DNA analysis, law enforcement decided to use Investigative Genetic Genealogy to find a lead. Genetic genealogy allows individuals to trace
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their lineage or connect with unknown family members using DNA. Typically, it involves sending a DNA sample, such as a tube of saliva, to a genetic genealogy service like Ancestry.com or 23andMe. The genetic genealogy service then creates a single nucleotide polymorphism (" SNP ") profile to use for genealogical purposes. A SNP profile is different than a STR DNA profile and is used more often for genealogical purposes.¹ The genetic genealogy service then uses an algorithm to compare the user's SNP profile to SNP profiles submitted to the genetic genealogy service by other users to determine ancestry and potential relatives. The genetic genealogy service shares with the user a list of potential relatives and, depending on the specific genetic genealogy service, personally identifying information on those individuals, like their name, email address, and the amount of DNA the user shares with the potential relatives. The user does not receive any genetic information pertaining to other database users (i.e., users ' DNA profiles are not shared with each other).
This same process, used frequently by members of the public, can also be used by law enforcement as part of their investigation-a technique referred to as Investigative Genetic Genealogy or " IGG. " Once a publicly available genetic genealogy service shows law enforcement potential relatives of the suspect, law enforcement applies traditional investigative and genealogical methods to build a family tree in an effort to follow the tree to the suspect or a close relative of the suspect. Family trees can be used to narrow down a potential suspect based on factors such as age, gender, opportunity, known physical 1 While an STR DNA analysis involves looking at 20 regions within human DNA, a SNP profile contains about 650,000 of the human genome's 3.3 billion nucleotides.
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characteristics of the suspect, etc.
In this case, investigators used IGG to begin the process of developing a lead to the individual who left DNA on the Ka-Bar knife sheath. The Idaho State Police utilized a private laboratory to develop a SNP profile from the DNA on the Ka-Bar knife sheath. The private laboratory started using genetic genealogy to develop a family tree, but after law enforcement decided the FBI would take over, the private laboratory ceased its efforts and sent the SNP profile to the FBI.2 The FBI uploaded the SNP profile to one or more publicly available genetic genealogy services to identify possible family members of the suspect based on shared genetic data. The FBI could then view through the genetic genealogy service's portal information regarding potential relatives of the suspect who left DNA on the Ka-Bar knife sheath. Based on information the FBI could see in the genetic genealogy service's portal, the FBI went to work building family trees of the genetic relatives to the suspect DNA left at the crime scene in an attempt to identify the contributor of the unknown DNA. The FBI built the family tree using the same tools and methods used by members of the public who wish to learn more about their ancestors. For example, the FBI consulted social media, viewed vital records such as birth and death certificates, and viewed other information already contained in the user portal for the genetic genealogy service, including unverified information submitted by other users of the genetic genealogy service. The FBI also consulted subscription-based databases available to law enforcement for information on 2 For ease of reference, this motion focuses on the FBI's IGG efforts. The State is also seeking to protect the partial family tree created by the private lab, and it should be protected for the same reasons the FBI's IGG efforts should be protected.
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individual people. The product of the genealogy conducted by the FBI was a family tree that contained the name, birthdate, and death date (if applicable) of hundreds of relatives as well as their familial connections between each other and the suspect: Bryan C. Kohberger. The FBI then sent to local law enforcement a tip to investigate Defendant.
The IGG process pointed law enforcement toward Defendant, but it did not provide law enforcement with substantive evidence of guilt. The FBI did not, for example, conduct a direct comparison between the SNP profile from the Ka-Bar knife sheath and Defendant's SNP profile. That type of direct comparison required the more traditional STR DNA analysis, which was conducted by the Idaho State Police, not the FBI.
Prior to the FBI's IGG efforts, the ISP laboratory developed the traditional STR DNA profile from the DNA found on the Ka-Bar knife sheath.³ After identification of Defendant, law enforcement recovered trash from the home of Defendant's parents and ISP laboratory did STR DNA analysis of items from the trash for comparison to the unknown crime scene DNA. That comparison indicated the DNA found on the trash belonged to the biological father of the individual who left the DNA on the Ka-Bar knife sheath.4 Pursuant to a search warrant, law enforcement then collected DNA from Defendant via a buccal swab. A traditional STR DNA comparison was done between the STR profile found on the Ka-Bar knife sheath and Defendant's DNA. The comparison showed a statistical match- 3 STR DNA analysis has been used in criminal cases for inculpatory purposes for more than 20 years. See e.g., United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir. 1996) (“ We believe the reliability of the PCR [STR] method of DNA analysis is sufficiently well established to permit the courts of this circuit to take judicial notice of it in future cases ").
4 STR analysis is routinely used for kinship analysis such as paternity.
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specifically, the STR profile is at least 5.37 octillion times more likely to be seen if Defendant is the source than if an unrelated individual randomly selected from the general population is the source.
The genealogy conducted by the FBI resulted in a lead that pointed law enforcement to Defendant, but it did not result in the creation of many documents or records. Much of the information relied on by the FBI was only viewed through the user portal in the publicly available genetic genealogy service (s) and other investigative databases. The FBI did not download or create copies of those records. Once Defendant was in custody, the FBI removed the SNP profile from the genetic genealogy service (s) pursuant to the United States Department of Justice Interim Policy for Forensic Genetic Genealogical DNA Analysis and Searching (" DOJ Policy "). 5 This means the FBI no longer has access to view much of the information it used to create the family tree and cannot view it again without resubmitting the SNP profile to the genetic genealogy service (s). To the State's knowledge, the only records that reflect the FBI's efforts to create Defendant's family tree is the family tree itself, notes jotted down by FBI agents as they constructed the family tree, and any records created to document the removal of the SNP profile from the genetic genealogy service (s) pursuant to the DOJ Policy. The State has not seen-nor does the State possess these records or copies of these records.
ARGUMENT
The State seeks a protective order for a narrow category of information-namely, 5 See DOJ Policy, effective November 1, 2019, pp.7-8 & n.28, available at https://www.justice.gov/olp/page/file/1204386/download.
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information related to the use of IGG in this case. " Idaho Criminal Rule 16 governs discovery in criminal proceedings. " State v. Ish, 166 Idaho 492, 510 (2020). Rule 16 is broad, but it is not a free-for-all. The rule contemplates the exchange of discrete categories of information between the State and the defense. As relevant here, the rule contemplates the State will provide three discrete categories of information: any material or information that would tend to negate the guilt of the accused, see I.C.R. 16 (a); any documents or objects that are material to the preparation of the defense, intended for use by the prosecutor as evidence at trial, or were obtained from the defendant or belong to the defendant, I.C.R. 16 (b) (4); and reports of scientific tests or experiments, see I.C.R. 16 (b) (5). If a defendant believes he should receive information that does not fall within one of the discrete Rule 16 categories, the rule allows the defendant to seek an order from the court for information where the defendant can show a substantial need for the information in the preparation of his case. See I.C.R. 16 (b) (10).
Here, Defendant served on the State a request for discovery that calls for the IGG information, even though the IGG information falls outside of Rule 16, without first obtaining an order from this Court. The State now seeks and the Court should enter-an order protecting the information related to the use of IGG in this case.
Specifically, the State seeks to protect the following information:
• The raw data related to the SNP profile and the underlying laboratory documentation related to the development of the profile, such as chain of custody forms, laboratory standard operating procedures, analyst notes, etc.
• All information related to IGG efforts in creating a family tree and identifying Defendant's potential relatives, including the identities of the genetic genealogy service (s) and the personally identifying information
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of Defendant's relatives.
The State does not seek to protect and has or will disclose the following information:
• A Genotype Kit Report from the private lab utilized by the Idaho State Police, which documents that a DNA test was performed.
• Information related to the STR DNA analysis conducted using the DNA recovered from the Ka-Bar knife sheath and the DNA recovered from Defendant's parents ' trash.
• Information related to the STR DNA analysis conducted using the DNA recovered from the Ka-Bar knife sheath and the DNA recovered from Defendant via a buccal swab.
This Court should grant an order protecting the IGG information in this case because the IGG information does not fit into any of the discrete categories listed in Rule 16 and good cause exists to protect the information, including the need to protect the privacy of Defendant's relatives.
A. Rule 16 (a) does not require the disclosure of the IGG information because the IGG information is not exculpatory.
Rule 16 (a) of the Idaho Criminal Rules does not require the disclosure of the IGG information because the IGG information does not tend to negate the guilt or reduce the potential punishment of Defendant. The rule requires the State to disclose " any material or information in the prosecuting attorney's possession or control... that tends to negate the guilt of the accused as to the offense charged or that would tend to reduce the punishment for the offense. " I.C.R. 16 (a). As written, this rule largely mirrors the federal Brady requirement that the State produce to a criminal defendant all material exculpatory information. See State v. Boehm, 158 Idaho 294, 300 (Ct. App. 2015). But Rule 16 (a) and Brady are limited to exculpatory information. They do not require " the prosecutor to make
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a complete and detailed accounting to the defense of all police investigatory work on a case. " State v. Horn, 101 Idaho 192, 195 (1980) (quoting Moore v. Illinois, 408 U.S. 786, 795 (1972)).
While the question of whether IGG information must be disclosed as exculpatory is one of first impression in Idaho, courts outside of Idaho have correctly decided that IGG information need not be disclosed as exculpatory. See, e.g., In the Matter of: Michael Green, Case No. PDL20200007, Ruling on Motion to Compel Production of Discovery (Sup. Ct.
Cal. Oct. 5, 2020), attached hereto as Exhibit A.
In Green, law enforcement used DNA recovered from the victim's nightgown to identify the defendant as a possible suspect. See Green, op.2. Then they surreptitiously recovered items from the defendant's garbage that contained DNA and found through STR DNA testing that the DNA in the defendant's garbage matched the DNA found on the victim's nightgown. Id. at 2-3. A saliva test then confirmed that the defendant's DNA matched the DNA on the victim's nightgown. Id. at 3. The defendant moved to compel the disclosure of the IGG information. Id. at 1. After an in-camera hearing, the court denied the motion. Id. at 6, 13. The court explained:
[T] he evidence that is material to [the defendant's] guilt or innocence is the testing that followed the [IGG] investigation, which directly compared a fresh swab of [the defendant's] DNA with the DNA profile collected from the victim's nightgown. It is only this evidence that the People intend to present at trial. The People are not obligated to provide its preliminary search of the genealogy databases for possible matches, which is investigatory in nature and is not exculpatory or material to [the defendant's] defense.
Id. at 11-12.
As this case illustrates, the State is not required to disclose the IGG information under
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Rule 16 (a) because the IGG information the State seeks to protect is not favorable to Defendant on the issues of guilt or punishment. The information provided to local law enforcement by the FBI was nothing more than a tip, a lead for local law enforcement to follow up on, should they choose to. The genealogical tip did not prove or substantiate Defendant's guilt. Rather, the tip allowed local law enforcement to focus their investigation on Defendant and obtain independent material evidence of his guilt, all of which the State has disclosed or will disclose. Specifically, with respect to DNA, an STR DNA analysis found Defendant's DNA matched the DNA collected from the Ka-Bar knife sheath. To the extent the IGG information has any relevance, the fact that it led law enforcement to Defendant means it is inculpatory rather than exculpatory in nature. Thus, Rule 16 (a) does not require the disclosure of the IGG information because it is not relevant to and certainly not favorable to the defendant on the issues of guilt or punishment.
B. Rule 16 (b) (4) does not require the disclosure of the IGG information because the IGG information does not satisfy any of the required criteria.
The nature of the IGG information is such that its disclosure is not required under Rule 16 (b) (4). That rule requires the disclosure of books, papers, documents, photographs, tangible objects, and buildings or places only when they (1) are material to the preparation of the defense, (2) are intended for use by the prosecutor as evidence at trial, or (3) were obtained from the defendant or belong to the defendant. I.C.R. 16 (b) (4). The IGG information does not satisfy any of these criteria.
First, the IGG information is not material to the preparation of the defense. Defendant is charged with killing four people, not with being related to a particular person. The mere fact that uploading the completed SNP profile into a publicly available genetic genealogy
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service led law enforcement to relatives of Defendant does not affect the strength of the evidence against him. The strength of the evidence against Defendant in terms of DNA evidence depends upon the confirmatory result from the STR DNA analysis between Defendant's DNA profile and the DNA recovered from the Ka-Bar knife sheath. As explained further below, the State intends to introduce the STR DNA analysis at trial, and does not intend to enter any evidence pertaining to the development of a SNP profile or the tree building process for inculpatory purposes. The State has disclosed or will disclose the information it has related to the STR DNA analyses conducted in connection with this case.
The immateriality of the IGG information to the preparation of the defense is perhaps best understood by way of analogy. The tip that came from the IGG process is no different than other types of technology " hits " that put law enforcement on the trail of a suspect. See United States v. Johnson, 2011 WL 472966, at * 3-4 (N.D. Ohio Oct. 7, 2011). For example, in Johnson, law enforcement recovered a suspect's DNA from a ballcap left at the scene of a bank robbery. Id. at * 1. Law enforcement ran the DNA profile through CODIS, which resulted in multiple " hits " including the defendant. Id. A scientist narrowed down the hits to the defendant, and law enforcement confirmed it was the defendant's DNA after acquiring a buccal swab from the defendant. Id. The defendant moved to compel the other CODIS " hits " from the government, b