4 Univ of Idaho Students Murdered, Bryan Kohberger Arrested, Moscow, Nov 2022 #97

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@wendy44
To be fair, a statement that deliberately omits relevant facts, is a false statement.
Outside the legal field it's known as lying by omission.
On page 13 of the motion to suppress the 119 Lambsden Dr search, the defense states their belief that omissions were likely intentional.
I'm not saying they're correct, just relaying their exact claim.
 

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wendy44 said:
I was really surprised by that too. Did they hand the list over to the Moscow PD and they hadn't looked at it or were still going through it? Did WSU police know that at least one of the images captured a vehicle without a front plate, which should have put the Elantra with the PA plates to the top of the list? I need to listen to the remainder of the hearing to see if he's pressed on this.
Click to expand...
He was not pressed. I just listened to Payne's entire testimony, covering AT's examination and cross by the state. Payne talks about one section of the arrest affidavit that included BK Elantra info from wsu officers. He also briefly mentions Pullman Elantra video footage, input from FBI cell and vehicle experts. I don't find anything there as regards the arrest PCA that suggests Payne omitted either IGG information because he was aware of the IGG result or he 'conspired' with FBI car specialist to expand the Elantra years up to 2016. It's absurd imo. The fact is, that hearing shows zero to suggest Payne relied on the IGG and then omitted it from the PCA or that he pressured the FBI car agent to change his report. The hearing does not reveal any facts that conspiracy, omissions or lies took place.

The PCA came after the AT &T phone warrants. Here Payne cites a combo of Elantra video footage, the PPD report re Kohberger's Elantra, Payne's checking his licence, interviews with surviving housemates. Moo, yes he relied in part on FBI expert's reassessment and expansion if the Elantra years in combo with his analysis of suspect Pullman 2015 Elantra footage in the supporting affidavit.

Payne comes across as credible and honest. I guess maybe AT was fishing for omission of FBI IGG section tip pointing to BK for AT &T warrant? Could be but again how does AT prove this if this is the insinuation,? . Moo, if by 23rd Dec Payne is aware of FBI IGG tip then there was a conscious choice or decision not to rely on it for the phone warrant. It's not in the affidavit and from Payne's professional demeanour I bet there is nothing incriminating in emails. Moo

Re FBI car video agent, If AT has found a feasible factual basis to suggest Payne and that agent 'conspired' to expand the year range after Suspect Pullman car video analysis completed then moo Hippler will consider it. But moo that hearing reveals nothing. It's piecemeal testimony.

This hearing, which defense pushed to be public, was constrained by talking around potential trial evidence. This hearing could have been sealed as originally planned and then AT could have been less constrained with the witness. This makes me ask if AT's examination of Payne, and Mowery a week earlier, was more about taking an opportunity to attempt a public discrediting of LE and pros than to do everything possible to trip Payne up for future ammo in a Franks motion. In a closed hearing AT could have asked so much more. OTOH maybe there was never anything untoward to potentially expose. Moo


Original defense objection State's motion to close the hearing.

JJJ's revised order to open the hearing.
 
jepop said:
He was not pressed. I just listened to Payne's entire testimony, covering AT's examination and cross by the state. Payne talks about one section of the arrest affidavit that included BK Elantra info from wsu officers. He also briefly mentions Pullman Elantra video footage, input from FBI cell and vehicle experts. I don't find anything there as regards the arrest PCA that suggests Payne omitted either IGG information because he was aware of the IGG result or he 'conspired' with FBI car specialist to expand the Elantra years up to 2016. It's absurd imo. The fact is, that hearing shows zero to suggest Payne relied on the IGG and then omitted it from the PCA or that he pressured the FBI car agent to change his report. The hearing does not reveal any facts that conspiracy, omissions or lies took place.
Click to expand...
BT says in a court doc that the Igg tip pointed LE to BK.
BP was lead investigator.
He did not include IGG in the PCA or testify about the IGG tip that pointed LE to BK.
jepop said:
The PCA came after the AT &T phone warrants. Here Payne cites a combo of Elantra video footage, the PPD report re Kohberger's Elantra, Payne's checking his licence, interviews with surviving housemates. Moo, yes he relied in part on FBI expert's reassessment and expansion if the Elantra years in combo with his analysis of suspect Pullman 2015 Elantra footage in the supporting affidavit.
Click to expand...
No IGG.
IMO this is why there is focus on the Elantra - plus the footnote.
jepop said:
Payne comes across as credible and honest.
I guess maybe AT was fishing for omission of FBI IGG section tip pointing to BK for AT &T warrant? Could be but again how does AT prove this if this is the insinuation,? . Moo, if by 23rd Dec Payne is aware of FBI IGG tip then there was a conscious choice or decision not to rely on it for the phone warrant. It's not in the affidavit and from Payne's professional demeanour I bet there is nothing incriminating in emails. Moo
Click to expand...
States MPO
Top of page 5
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.
jepop said:
Re FBI car video agent, If AT has found a feasible factual basis to suggest Payne and that agent 'conspired' to expand the year range after Suspect Pullman car video analysis completed then moo Hippler will consider it. But moo that hearing reveals nothing. It's piecemeal testimony.

This hearing, which defense pushed to be public, was constrained by talking around potential trial evidence. This hearing could have been sealed as originally planned and then AT could have been less constrained with the witness. This makes me ask if AT's examination of Payne, and Mowery a week earlier, was more about taking an opportunity to attempt a public discrediting of LE and pros than to do everything possible to trip Payne up for future ammo in a Franks motion. In a closed hearing AT could have asked so much more. OTOH maybe there was never anything untoward to potentially expose. Moo
Click to expand...
AT has discovery.
She asked specific questions for a reason. She doesn't have to lay out why she is asking.
What did you rely on? Who expanded the model years? When did that happen? Where is the video?
AJ crossed specific points for a reason. Didn't cross specific points for a reason.
jmo
jepop said:
Original defense objection State's motion to close the hearing.

JJJ's revised order to open the hearing.
Click to expand...
@Swansee posted:

From the MTS Lamsden
page 13
In this case, law enforcement either intentionally or recklessly (but, likely intentionally) omitted exculpatory evidence as to almost every facet of its affidavit for this warrant.
BBM
all JMO
ETA BBM
 
wendy44 said:
Okay, I went back through the thread and this appears to be where the discussion about proof of a lie began.
Click to expand...

This is a great post!

wendy44 said:
It's not accurate that the defense must prove that LE lied in order to obtain a warrant. The defense lays out the circumstances under which a defendant can challenge the veracity of an affidavit used to obtain a search warrant in their Motion to Suppress regarding the arrest warrant:


Upon a preliminary showing of a warrant's deficiency the defendant must prove, by a preponderance of the evidence, "that intentional or reckless falsehoods were included in the warrant affidavit and were material to the magistrate's finding of probable cause, or that material exculpatory information was deliberately or recklessly omitted".

"An omission of the facts is 'material' only if there is a substantial probability that had the omitted information been presented, it would have altered the magistrate's determination of probable cause."

"Whether information in a warrant was obtained via violation of the constitution, Idaho courts excise that information."

The motion argues that the warrant omitted exculpatory information and that evidence was gathered in violation of the constitution. The motion goes into great detail about how the IGG fits with the latter point, but doesn't say specifically what exculpatory information was omitted from the PCA. The motion makes no argument that there were intentional or reckless falsehoods included in the warrant affidavit.
Click to expand...

While I agree with you as far as the suppression motion goes, we can't read the Franks to see exactly what it argues. But as you say, it does seem to be implied that it argues an omission only

In my view, however, in the Franks context, it can't just be that the IGG intelligence was possibly unconstitutional and therefore the LE were hiding this from the Judge. The PCA does not refer to IGG, nor exactly what insights the state relied on. Would it make any difference if IGG is included? IMO not in a search warrant affidavit. That's a question of constitutionality, not exculpatory evidence

I think the deeper argument has to be that the FBI agent actually still thinks its the earlier year Elantra, and that is the exculpatory factor that was concealed.

wendy44 said:
I listened to this again and I don't think this is where she was going with this. She asked him what he relied on when he wrote the affidavits. She asked him what he relied on for the 2011-2013 model years and then how that was expanded. He answered that it was based on the FBI expert analysis. And then she moved on. What she was getting at came next. She asked him if he recalled the date he first had communication with the WSU officer who ran the query on the Elantra. It was December 20th. The date Blum claims in his book that the FBI relayed the name from the IGG to Moscow PD. He testified that he had messaging and phone conversations with this officer. She asked him if the information "related backwards" to when the WSU officer first noticed the Elantra and he said yes. She asked him if when the WSU officer noticed it, he didn't know about it and he said that's correct. This is clearly all related to the last two points in the Motion to Suppress, not the first.

Snipped by Me/JMO
Click to expand...

I agree about the lack of heat in that examination. I think she should have put her core contention to the witness. Perhaps she intends to save that for a potential franks hearing.

MOO
 
jepop said:
He was not pressed. I just listened to Payne's entire testimony, covering AT's examination and cross by the state. Payne talks about one section of the arrest affidavit that included BK Elantra info from wsu officers. He also briefly mentions Pullman Elantra video footage, input from FBI cell and vehicle experts. I don't find anything there as regards the arrest PCA that suggests Payne omitted either IGG information because he was aware of the IGG result or he 'conspired' with FBI car specialist to expand the Elantra years up to 2016. It's absurd imo. The fact is, that hearing shows zero to suggest Payne relied on the IGG and then omitted it from the PCA or that he pressured the FBI car agent to change his report. The hearing does not reveal any facts that conspiracy, omissions or lies took place.
Click to expand...

Agreed. I didn't understand why the core contention was not put to the witness.

jepop said:
The PCA came after the AT &T phone warrants. Here Payne cites a combo of Elantra video footage, the PPD report re Kohberger's Elantra, Payne's checking his licence, interviews with surviving housemates. Moo, yes he relied in part on FBI expert's reassessment and expansion if the Elantra years in combo with his analysis of suspect Pullman 2015 Elantra footage in the supporting affidavit.

Payne comes across as credible and honest. I guess maybe AT was fishing for omission of FBI IGG section tip pointing to BK for AT &T warrant? Could be but again how does AT prove this if this is the insinuation,? . Moo, if by 23rd Dec Payne is aware of FBI IGG tip then there was a conscious choice or decision not to rely on it for the phone warrant. It's not in the affidavit and from Payne's professional demeanour I bet there is nothing incriminating in emails. Moo

Re FBI car video agent, If AT has found a feasible factual basis to suggest Payne and that agent 'conspired' to expand the year range after Suspect Pullman car video analysis completed then moo Hippler will consider it. But moo that hearing reveals nothing. It's piecemeal testimony.
Click to expand...

And also - so what? Even assuming IGG is later ruled by an appeal court to be unconstitutional, at the time it wasn't. So what is the issue with Payne and the FBI agent putting together the available evidence and correcting a mistake?

The conspiracy is only concealing something exculpatory if the FBI expert still thinks his first opinion was the correct one, because the defendant does not have such a car, and that was then concealed from the Judge who authorised the warrant.

Heavy lift IMO.

jepop said:
This hearing, which defense pushed to be public, was constrained by talking around potential trial evidence. This hearing could have been sealed as originally planned and then AT could have been less constrained with the witness. This makes me ask if AT's examination of Payne, and Mowery a week earlier, was more about taking an opportunity to attempt a public discrediting of LE and pros than to do everything possible to trip Payne up for future ammo in a Franks motion. In a closed hearing AT could have asked so much more. OTOH maybe there was never anything untoward to potentially expose. Moo


Original defense objection State's motion to close the hearing.

JJJ's revised order to open the hearing.
Click to expand...

My guess is the D has the issue that the trial court is unlikely to find an unconstitutional search without high authority. So all the evidence is coming in and they lose, because his DNA is at the scene, and they need to win years later on appeal. All unlikely.

Franks offers a longshot chance to get the warrants booted pretrial.

MOO
 
Nila Aella said:
BT says in a court doc that the Igg tip pointed LE to BK.
BP was lead investigator.
He did not include IGG in the PCA or testify about the IGG tip that pointed LE to BK.

No IGG.
IMO this is why there is focus on the Elantra - plus the footnote.
Click to expand...

RSBM

I agree. But i suppose the issue is that the IGG info is not exculpatory but incriminating in the context of a potential Franks hearing.

AT is essentially arguing "well if they had not found the defendant's DNA at the crime scene and searched it via IGG they never would have connected these dots ... and they failed to tell the judge that ..."

imo

I am interested in how AT is threading that needle.

MOO
 
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mrjitty said:
This is a great post!

While I agree with you as far as the suppression motion goes, we can't read the Franks to see exactly what it argues. But as you say, it does seem to be implied that it argues an omission only

In my view, however, in the Franks context, it can't just be that the IGG intelligence was possibly unconstitutional and therefore the LE were hiding this from the Judge. The PCA does not refer to IGG, nor exactly what insights the state relied on. Would it make any difference if IGG is included? IMO not in a search warrant affidavit. That's a question of constitutionality, not exculpatory evidence

I think the deeper argument has to be that the FBI agent actually still thinks its the earlier year Elantra, and that is the exculpatory factor that was concealed.

I agree about the lack of heat in that examination. I think she should have put her core contention to the witness. Perhaps she intends to save that for a potential franks hearing.

MOO
mrjitty said:
RSBM

I agree. But i suppose the issue is that the IGG info is not exculpatory but incriminating in the context of a potential Franks hearing.

AT is essentially arguing "well if they had not found the defendant's DNA at the crime scene and searched it via IGG they never would have connected these dots ... and they failed to tell the judge that ..."

imo

I am interested in how AT is threading that needle.

MOO
Click to expand...
Click to expand...
Me too!

I think the D argument about IGG is both constitutional and exculpatory.

In the IGG documents and testimony, both sides address exculpatory vs inculpatory as it relates to the IGG.

States MPO

A. Rule 16(3) does not require the disclosure of the IGG information because the IGG information is not exculpatory

page 8

BB declaration "other suspects"

SM declaration
pg 3
Only when an attorney meets these minimum standards can the attorney make reasonable tactical decisions about challenging inculpatory DNA/forensic evidence and/or introducing exculpatory DNA/forensic evidence.

And in the MTS genetic info the D addresses 4th Ammend/Idaho Constitution

This motion is made pursuant to the Fourth Amendment of the United States Constitution and Article 1, §17, of the Idaho Constitution.


jmo, ianal
 
Nila Aella said:
Me too!

I think the D argument about IGG is both constitutional and exculpatory.

In the IGG documents and testimony, both sides address exculpatory vs inculpatory as it relates to the IGG.

States MPO

A. Rule 16(3) does not require the disclosure of the IGG information because the IGG information is not exculpatory

page 8

BB declaration "other suspects"

SM declaration
pg 3
Only when an attorney meets these minimum standards can the attorney make reasonable tactical decisions about challenging inculpatory DNA/forensic evidence and/or introducing exculpatory DNA/forensic evidence.

And in the MTS genetic info the D addresses 4th Ammend/Idaho Constitution

This motion is made pursuant to the Fourth Amendment of the United States Constitution and Article 1, §17, of the Idaho Constitution.


jmo, ianal
Click to expand...

Thanks for this. I hadn't realised the state had explicitly made this argument.
 
mrjitty said:
Thanks for this. I hadn't realised the state had explicitly made this argument.
Click to expand...
This argument was made when the State was trying to obtain a protective order (June 2023) on the IGG information after the D submitted a motion to compel.

There was a hearing with witnesses on this.

There was an order by the Judge, that ordered some of the IGG information to be handed over to the D. It did not state what he ordered handed over nor why because the order was sealed to protect the information.

 
Can somebody please clarify what is going on with today's hearing? There was no mention of this hearing being closed but then that latest Defense doc dropped about having a closed hearing via zoom today at 2:30.
Does this mean the whole thing is going to be closed?
 
Swansee said:
@wendy44
To be fair, a statement that deliberately omits relevant facts, is a false statement.
Outside the legal field it's known as lying by omission.
On page 13 of the motion to suppress the 119 Lambsden Dr search, the defense states their belief that omissions were likely intentional.
I'm not saying they're correct, just relaying their exact claim.
Click to expand...

We saw what devil’s play can be triggered by defense attorneys trying to meld their “beliefs” in with their motions in the Delphi case.
Some people will believe their “beliefs” and treat them as fact and twist everything around them.
I hope that doesn’t happen here.
 
Swansee said:
Can somebody please clarify what is going on with today's hearing? There was no mention of this hearing being closed but then that latest Defense doc dropped about having a closed hearing via zoom today at 2:30.
Does this mean the whole thing is going to be closed?
Click to expand...
Ex parte defense motion/s remote and sealed. I guess the status wasn't specified in case summary. But moo an ex parte hearing is not going to open to the public.

May be some clarification if order or notice of docs are filed afterwards. That's what happened with a previous sealed ex parte defense hearing held on Oct 8th or 9th. That one was to do with BK's representation and public defender matters imo. This one might be some sort of house keeping or something else. No clue really. Jmo
 
Swansee said:
@wendy44
To be fair, a statement that deliberately omits relevant facts, is a false statement.
Outside the legal field it's known as lying by omission.
On page 13 of the motion to suppress the 119 Lambsden Dr search, the defense states their belief that omissions were likely intentional.
I'm not saying they're correct, just relaying their exact claim.
Click to expand...
There's an important distinction between the two for several reasons. We're talking here about probable cause. Deliberately making false statements in order to obtain probable cause, usually because you can't obtain probable cause without making false statements, is completely different than omitting facts when obtaining probable cause. Omission of facts when obtaining probable cause is only relevant when there's a probability that, had those facts been included, it would have change the outcome of the determination of probable cause.

Interestingly, in the case cited by the defense, State v. Peterson, Peterson in that case actually lost his appeal. In this case, the warrant was based on the informant who was a juvenile who had been involved in prior burglaries and had provided accurate information when caught. Peterson argued that the warrant omitted material information--that the juvenile expected favorable treatment for the information and that he had been untruthful in the past. The court said the question of law was not whether the omission was negligent, innocent or intentionally reckless. The question of law was whether the omission was material to obtaining the warrant.

Peterson argued that because the detective had knowledge of the omitted facts he must have omitted them intentionally or recklessly. The court said that whether an omission was intentional or reckless might be inferred from the relative importance of information and its exculpatory power.

Peterson needed to show that the omissions were material in the sense that there is a substantial probability that, had the omitted information been presented, it would have altered the magistrate's finding of probable cause and the court found that he failed to show that. It's not enough that there were omissions in the warrant that were known to the detective. The court concluded "Peterson's assertion that Detective Burgess intentionally or recklessly omitted material facts from his warrant affidavit is without merit, as is his claim that the affidavit fails to show probable cause. There being probable cause for issuance of the first warrant, Peterson's challenge to the subsequent warrants also fails".

So the defense here will not simply need to show that facts were omitted from the PCA. This is pretty standard actually--it's typical that the bare minimum to obtain the warrant is included in the affidavit. The defense will need to show that the omissions would have changed the outcome of the magistrate's decision to issue the warrant.

The other reason this is a really important distinction is for purposes of this thread. If it's stated and accepted that a Franks hearing is a legal proceeding challenging a warrant based on false statements, therefore there are false statements in the PCA--this is just an inaccurate assessment. The umbrella of Franks is greater than false statements so we can't just assume that a Franks=false statements.
 
StarryStarryNight said:
We saw what devil’s play can be triggered by defense attorneys trying to meld their “beliefs” in with their motions in the Delphi case.
Some people will believe their “beliefs” and treat them as fact and twist everything around them.
I hope that doesn’t happen here.
Click to expand...
It already has. The defense believes he’s not guilty.

JMO
 
Nila Aella said:
Me too!

I think the D argument about IGG is both constitutional and exculpatory.

In the IGG documents and testimony, both sides address exculpatory vs inculpatory as it relates to the IGG.

States MPO

A. Rule 16(3) does not require the disclosure of the IGG information because the IGG information is not exculpatory

page 8

BB declaration "other suspects"

SM declaration
pg 3
Only when an attorney meets these minimum standards can the attorney make reasonable tactical decisions about challenging inculpatory DNA/forensic evidence and/or introducing exculpatory DNA/forensic evidence.

And in the MTS genetic info the D addresses 4th Ammend/Idaho Constitution

This motion is made pursuant to the Fourth Amendment of the United States Constitution and Article 1, §17, of the Idaho Constitution.


jmo, ianal
Click to expand...
I agree the defense will argue 4th amendment with the IGG but I don't see how they can argue it's exculpatory. The proof is in the match. The IGG pointed to BK and he did indeed match the dna on the sheath. The IGG was not exculpatory.

JMO
 
Getting off through suppression of evidence is not innocence, it's collateral damage to
individuals in the service of the collective good of the defense of the constitution.
 
mrjitty said:
While I agree with you as far as the suppression motion goes, we can't read the Franks to see exactly what it argues. But as you say, it does seem to be implied that it argues an omission only
Click to expand...
This is absolutely true--just for the purposes of this thread it needed to be pointed out that a Franks hearing does not necessarily mean there were false statements. It's not a fact that there were false statements simply because there's a Franks motion. Everything in the motions by the defense actually point to omissions not falsehoods, but we don't know what the exhibits contain and what they allege (and apparently the judge is having a hard time with this too lol).
mrjitty said:
In my view, however, in the Franks context, it can't just be that the IGG intelligence was possibly unconstitutional and therefore the LE were hiding this from the Judge. The PCA does not refer to IGG, nor exactly what insights the state relied on. Would it make any difference if IGG is included? IMO not in a search warrant affidavit. That's a question of constitutionality, not exculpatory evidence

I think the deeper argument has to be that the FBI agent actually still thinks its the earlier year Elantra, and that is the exculpatory factor that was concealed.
Click to expand...
I think the defense is probably throwing everything out there, even if it doesn't support Franks, and the order by the judge supports that. They put 100 pages of emails about the car in the exhibits but failed to explain how this supports their motion. The judge actually says this. If there is something there, they're going to have to come back and state it clearly for the judge. AT is too good of lawyer to risk not having the chance to do that by not doing that in the first place. To me, the footnote about the car is more indication that there's nothing there with the car than that there is. I'm sure they will use the discrepancy in court to try to create reasonable doubt with the jurors and that's totally fair and how it's usually done.
JMO

It really is primarily about the IGG. It's a case of first impression in Idaho. It hasn't been litigated there. It's their only shot at getting the warrants and the dna, which is everything to this case, thrown out. They need for the IGG to have led to the PCA so they can get the PCA thrown out. They're trying to do that two ways.

The IGG was omitted from the PCA and this omission was material to law enforcement obtaining the warrants. It's not enough to show it was omitted. They'll have to show warrants wouldn't have been obtained if the IGG had been included.

And the IGG is a violation of the 4th amendment, therefore any information contained in the warrants that came from the IGG should be excised, which they say is everything.

JMO
 
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jepop said:
This hearing, which defense pushed to be public, was constrained by talking around potential trial evidence. This hearing could have been sealed as originally planned and then AT could have been less constrained with the witness. This makes me ask if AT's examination of Payne, and Mowery a week earlier, was more about taking an opportunity to attempt a public discrediting of LE and pros than to do everything possible to trip Payne up for future ammo in a Franks motion. In a closed hearing AT could have asked so much more. OTOH maybe there was never anything untoward to potentially expose. Moo
Click to expand...
At the time I characterized it by saying...

1. Why does it always seem like Kohlberger's defense is a second away from dropping a bombshell...then whatever they end up doing is extremely underwhelming. MOO
Click to expand...

All of the bombshells we've been promised (IMO) over the last few years have culminated in a flurry of legal hail mary's supported by a thousand(s) of unorganized emails. JMO

If there was a bombshell in there. We would probably be having a hearing about exculpatory evidence or prosecutorial misconduct. So I think we should be pretty confident dismissing that idea. IMO

If any of the emails proved their point..they could have at least included a narrative guide, or given them context, or at the least prioritized them. And we didn't even get that. MOO

“If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell" ― Carl Sandburg​


IMO we've been at the' pound the table' part of the trial for the last 15 months.

MOO

​

 
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