Idaho student murders: Bryan Kohberger defense claims surviving roommate has 'exculpatory' evidence

[Leroy N. Soetoro]

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A defense investigator working on behalf of University of Idaho student
murders suspect Bryan Kohberger asserted in a newly unveiled court filing
that a surviving housemate has "exculpatory" information that is "material
and necessary" to the alleged killer's defense.

Kohberger, a former criminology Ph.D. candidate, is accused of entering an
off-campus home on Nov. 13 around 4 a.m., after the occupants, all
undergrad students at the school, had been out on a Friday night into
early Saturday morning.

Police allege he fatally stabbed four of the six people inside, Madison
Mogen and Kaylee Goncalves, both 21, along with Xana Kernodle and Ethan
Chapin, both 20. The three women lived there with the two survivors, while
Chapin, Kernodle's boyfriend, was spending the night.

Of the two survivors, one allegedly heard a commotion and witnessed a
masked man exit through a rear sliding door, according to a police
affidavit.

The second, a Nevada native named in the Nevada court filing made public
Monday, allegedly heard or saw things that could clear the suspect,
according to Richard Bitonti, a defense investigator working for Anne
Taylor, Kohberger's court-appointed attorney.

"During the course of my investigation, it became known to me that [she]
has information material to the charges against Mr. Kohberger," Bitonti
wrote in an affidavit in support of the subpoena, revealed by a Reno
reporter assisting the New York Times after online sleuths found the case
listed on a Washoe County, Nevada, court docket.

A portion of that information, Bitonti added, "is exculpatory to the
defendant."

The "information is unique to her experiences and cannot be provided by
another witness," according to the documents.

As a result, Kohberger's defense is asking the court to compel her
testimony at his scheduled preliminary hearing in June, as they hope to
challenge the probable cause used to justify his arrest.

However, as Fox News Digital has reported, prosecutors can sidestep his
attempts to disprove probable cause by seeking a grand jury indictment
behind closed doors.

"If there is no preliminary hearing, because there was a superseding
indictment, the issue of the subpoena (at least for that hearing) becomes
moot," Edwina Elcox, a Boise-based criminal defense attorney who
previously represented Lori Vallow, told Fox News Digital.

Even if a grand jury is empaneled behind closed doors, without involvement
from Kohberger's defense team, prosecutors would be ethically bound to
disclose potentially exculpatory evidence, she said.

However, a grand jury would enable prosecutors to present the case without
subjecting any witnesses to harrowing cross-examination from Kohberger's
defense before trial.

"The prosecutor has to present such exculpatory evidence to the grand
jury, even though the defense is not present," she said.

IDAHO MURDERS: PROSECUTOR SAYS VICTIM'S FAMILY ‘POTENTIAL WITNESSES’ AS
DEFENSE OPPOSES GAG ORDER APPEAL

The law firm representing the surviving roommate declined to comment,
citing Idaho Magistrate Judge Megan Marshall's gag order on the case.

However, in a court filing opposing the subpoena, also published Monday,
Reno-based attorney Kelli Anne Viloria argued that the Idaho subpoena was
improperly filed and "there is no authority for an Idaho criminal
defendant to summon a Nevada witness to Idaho for preliminary hearing."

"There is also no authority for an Idaho criminal defendant to summon a
Nevada witness to an Idaho matter without a hearing and there is no
authority to summon a Nevada witness to an Idaho matter without a Nevada
judge making a finding of materiality, necessity and the lack of undue
hardship," she added.

At the time of the stabbings, Kohberger was a Ph.D. criminology student at
Washington State University, a neighboring school less than 10 miles away
from the Idaho campus. He finished out the semester and drove home, cross-
country, with his dad riding shotgun.

After his initial arrest, Kohberger's previous public defender in his home
state of Pennsylvania said his client was looking forward to being
exonerated.

Taylor, his attorney in Idaho, ignored requests for comment from Fox News
Digital prior to the gag order and has since remained silent.

In court filings, her office has slammed what it calls "grotesquely
twisted" media coverage of the home invasion stabbing that left four
college students dead of multiple stab wounds each – some of whom were
believed to have been sleeping at the start of the ambush.

Experts have told Fox News Digital that they expect Latah County
prosecutor Bill Thompson to be extra careful as he seeks a conviction in
the potential death penalty case in order to avoid possible grounds for
appeal.

Last month, he informed Judge Marshall and Kohberger's team that his
office would be disclosing this week "potential Brady/Giglio material"
related to a police officer involved in the massacre probe – but that
doesn't mean there is a connection with the stabbings of four University
of Idaho students in November.

Brady material is information that could potentially prove a defendant's
innocence, experts tell Fox News Digital. Giglio material is damaging to
the integrity of a witness – in this case, one of the officers involved in
the investigation.

In previously released court documents, investigators alleged they had
linked the suspect to the crime scene through surveillance images of his
car and phone records. They also found a knife sheath next to Mogen's body
that allegedly contained DNA.

Kohberger faces four counts of first-degree murder and another of felony
burglary. His preliminary hearing is scheduled to begin on June 26 and
could take several days.


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