WEBVTT - Hamster Wheel of Justice 0:00:04.280 --> 0:00:09.040 Ryan Coberger outstargazing and driving the night four University of 0:00:09.080 --> 0:00:12.280 Idaho students were murdered. That's part of the alibi he's 0:00:12.360 --> 0:00:13.120 offering to the. 0:00:13.080 --> 0:00:17.720 Court sometimes and then this won't shock anybody who's done 0:00:17.720 --> 0:00:25.000 defense work. Clients will lie to their attorneys. 0:00:27.160 --> 0:00:31.000 This is the Idaho Massacre. A production of KAT Studios 0:00:31.120 --> 0:00:38.560 and iHeartRadio, Season two, Episode four, A Hamster Wheel of Justice. 0:00:39.920 --> 0:00:43.559 I'm Courtney Armstrong, a producer at KAT Studios, with Stephanie 0:00:43.640 --> 0:00:50.400 Leidecker and Gabe Castillo. On December thirtieth, twenty twenty two, 0:00:50.440 --> 0:00:54.200 six weeks after the murders of Ethan Chapin, Xana Kernodle, 0:00:54.560 --> 0:00:58.880 Madison Mogen, and Kaylie Gonzalvez, twenty eight year old criminology 0:00:58.960 --> 0:01:02.560 PhD student Brian Coburger was arrested at his family home 0:01:02.680 --> 0:01:08.399 in Pennsylvania's Pocono Mountains. Here's Monroe County Assistant District Attorney 0:01:08.720 --> 0:01:09.760 Michael Mancuso. 0:01:13.080 --> 0:01:18.200 Mister Coburger was found awake in the kitchen area, dressed 0:01:18.240 --> 0:01:22.039 in shorts and a shirt and wearing latex medical type 0:01:22.040 --> 0:01:26.720 gloves and apparently was taking his personal trash and putting 0:01:26.720 --> 0:01:28.560 it into separate ziploc baggies. 0:01:29.280 --> 0:01:34.960 Here's Stephanie just picturing the accused Brian Coburger wearing shorts 0:01:34.959 --> 0:01:39.160 and a T shirt in surgical latex gloves. Is such 0:01:39.319 --> 0:01:41.840 a chilling detail, So let's just play this out for 0:01:41.920 --> 0:01:45.360 a second. If in fact, Brian Coburger did this, that 0:01:45.400 --> 0:01:48.360 would actually mean that he murdered four people. Then he 0:01:48.440 --> 0:01:51.320 went back to class in the days thereafter. Then his 0:01:51.440 --> 0:01:54.280 dad picks him up at his apartment in Washington, and 0:01:54.320 --> 0:01:57.040 as we know, the two of them infamously drove in 0:01:57.120 --> 0:02:01.280 Brian's white Alantra across country to go home for Thanksgiving break. 0:02:01.520 --> 0:02:04.880 You'll also remember that the police hold Brian and his 0:02:05.000 --> 0:02:08.360 dad over twice allegedly to see if he had any 0:02:08.400 --> 0:02:12.600 scratch marks on his hand, and bodycam footage shows that 0:02:12.639 --> 0:02:15.880 he did. Now he's home, he's at his parents' house 0:02:15.919 --> 0:02:20.080 for Thanksgiving break, and he realizes his car is a 0:02:20.120 --> 0:02:23.800 crime scene. So now he's wearing these latex gloves and 0:02:23.960 --> 0:02:26.560 leaning it out, making sure that things are put in 0:02:26.600 --> 0:02:30.400 their proper ziploc bags. CNN reported that he cleaned his 0:02:30.480 --> 0:02:34.320 car inside and out, not missing an inch. That's a 0:02:34.320 --> 0:02:36.400 pretty big deal. Does that mean he's just trying to 0:02:36.440 --> 0:02:39.920 make sure there isn't any evidence left behind, or, as 0:02:39.960 --> 0:02:43.440 the defense would probably say, maybe he's just a meticulous 0:02:43.480 --> 0:02:46.200 guy that doesn't like germs and just likes to forever 0:02:46.280 --> 0:02:47.520 be wearing a latex glove. 0:02:49.480 --> 0:02:53.360 On January fourth, twenty twenty three, the accused was extradited 0:02:53.400 --> 0:02:55.880 back to Idaho, where he appeared in court to wave 0:02:55.919 --> 0:02:59.160 his right to a speedy trial. Seven long months after that, 0:02:59.360 --> 0:03:03.040 on August two, twenty third Judge John Judge, who continues 0:03:03.080 --> 0:03:06.160 to preside over the case, pushed back the initial start date, 0:03:06.240 --> 0:03:10.000 which was set for October second, twenty twenty three. As 0:03:10.000 --> 0:03:12.720 of this recording, a new trial start date has still 0:03:12.760 --> 0:03:18.560 not been set. Recently, victim Kaylee Gonsalvez's family released a 0:03:18.600 --> 0:03:22.040 statement saying this case is turning into a hamster wheel 0:03:22.040 --> 0:03:25.680 of motions, hearings, and delayed decisions. Can we all just 0:03:25.760 --> 0:03:28.080 agree that this case needs to move forward and the 0:03:28.160 --> 0:03:31.040 judge needs to start setting hard deadlines in this case. 0:03:34.560 --> 0:03:37.200 Kaylee's mom says she feels like they've been in limbo 0:03:37.360 --> 0:03:39.880 now for more than a year, and while she's hopeful, 0:03:40.160 --> 0:03:42.600 mostly what they want is a trial date to be. 0:03:42.600 --> 0:03:48.200 Said, to get a better understanding of these pre trial proceedings. 0:03:48.240 --> 0:03:51.560 I spoke with Kirk Nurmi, legal analyst and former defense 0:03:51.560 --> 0:03:57.240 attorney to Jody Arius. Arius was in a widely publicized 0:03:57.240 --> 0:04:00.280 death penalty case in twenty thirteen from murdering her ex 0:04:00.320 --> 0:04:04.640 boyfriend Travis Alexander in Arizona. In the state of Idaho, 0:04:05.000 --> 0:04:08.600 three people have been executed since the mid nineteen seventies. 0:04:09.120 --> 0:04:13.040 For context, during that time, nearly sixteen hundred felons have 0:04:13.120 --> 0:04:16.080 been put to death in the United States. I asked 0:04:16.160 --> 0:04:18.479 Kirk about a hearing in this case that took place 0:04:18.560 --> 0:04:22.080 on January twenty sixth, twenty twenty four. At that hearing, 0:04:22.120 --> 0:04:25.440 Coberger's defense attorney, Ann Taylor, tried for the second time 0:04:25.560 --> 0:04:28.640 to get all charges dismissed. I asked Kirk if it 0:04:28.680 --> 0:04:31.200 was rare for attorneys to take a second bite at 0:04:31.240 --> 0:04:31.680 the apple. 0:04:33.240 --> 0:04:33.320 No. 0:04:34.000 --> 0:04:37.080 We have to understand in a death penalty context, if 0:04:37.200 --> 0:04:41.960 a defendant is sentenced to death, what the attorneys did 0:04:42.160 --> 0:04:45.880 or did not do will be examined for years down 0:04:45.960 --> 0:04:47.920 the road. I mean, if somebody is sentenced to death, 0:04:48.040 --> 0:04:52.680 usually it takes about fifteen years for that execution to 0:04:52.720 --> 0:04:57.800 actually take place, and during those fifteen years, the federal 0:04:57.839 --> 0:04:59.360 courts will take a look at it, and it will 0:04:59.400 --> 0:05:01.679 go all the way up to the US Supreme Court. 0:05:01.920 --> 0:05:04.360 One of the reasons about fifty percent of the death 0:05:04.400 --> 0:05:07.400 penalty verdicts get overturned, and one of the reasons for 0:05:07.480 --> 0:05:11.680 that is the council's failure to pursue certain avenues of defense. 0:05:11.960 --> 0:05:17.000 So it is reasonable and expected and really minimum practice 0:05:17.120 --> 0:05:20.760 for the defense attorneys and the death penalty case to 0:05:20.760 --> 0:05:24.920 pursue every avenue possible, even multiple times if there is 0:05:25.040 --> 0:05:25.960 reason to do that. 0:05:26.680 --> 0:05:29.320 The victim's family, you want the trial to be expedited. 0:05:29.520 --> 0:05:33.640 It sounds like the judge as well wanted to expedite 0:05:33.680 --> 0:05:38.560 the case, but defense obviously has been pushing hard to delay. 0:05:38.800 --> 0:05:39.760 Can you speak to that. 0:05:40.520 --> 0:05:43.440 Yeah, I mean it goes back to some extent about 0:05:43.760 --> 0:05:46.520 having things done right. I mean, the prosecution knows, and 0:05:47.200 --> 0:05:50.760 with all due respect to the family, understand why they 0:05:50.800 --> 0:05:54.400 want justice to be swift. But the prosecution understands that 0:05:54.480 --> 0:05:57.760 if they are investing all these resources. I mean, it 0:05:57.880 --> 0:06:01.840 always costs the state pursuing death penalty, both for the 0:06:01.880 --> 0:06:04.800 prosecution team and for the defense team. It costs a 0:06:04.800 --> 0:06:07.520 lot of money, it costs a lot of court resources, etc. 0:06:08.279 --> 0:06:10.880 They want to make sure they do it once if 0:06:10.880 --> 0:06:14.360 it is expedited in any way, and in that review 0:06:14.440 --> 0:06:17.600 process years down the road, of course, there's no wait 0:06:17.640 --> 0:06:20.440 a minute, this tra happened too fast because you did 0:06:20.440 --> 0:06:24.280 not give the defense proper notice on this particular issue 0:06:24.320 --> 0:06:29.440 or proper time to investigate the mitigating circumstances surrounding mister 0:06:29.480 --> 0:06:33.080 Colberger's life. Then then it could be redone again, and 0:06:33.120 --> 0:06:36.560 so hasty justice doesn't necessarily mean justice. It has to 0:06:36.600 --> 0:06:40.960 be justice done thoroughly and one hundred percent correctly. Or again, 0:06:41.000 --> 0:06:44.839 there's a fifty percent chance that a sentencing verdict would 0:06:44.839 --> 0:06:45.520 be overturned. 0:06:46.000 --> 0:06:48.120 Wow, that's a crazy high statistic. 0:06:48.720 --> 0:06:52.440 Is the pressure so much higher because of that extra 0:06:52.560 --> 0:06:53.640 judicial oversight? 0:06:54.760 --> 0:06:58.159 Sure? I mean there's an expression amongst defense attorneys that 0:06:58.320 --> 0:07:01.800 death is different, and that is exactly the case. It 0:07:02.000 --> 0:07:06.560 is a meticulous, high stress situation where every avenue must 0:07:06.640 --> 0:07:09.720 be pursued because of that scrutiny that is going to 0:07:09.760 --> 0:07:12.720 face years down the road. No defense attorney wants to 0:07:12.760 --> 0:07:16.760 be considered ineffective. Nobody involved wants to have to try 0:07:16.760 --> 0:07:20.440 the case again. That fifty percent rate I talk about 0:07:20.440 --> 0:07:22.640 it is always related to the sentencing. It doesn't have 0:07:22.640 --> 0:07:25.000 anything to do with guilt or innocence, but it has 0:07:25.040 --> 0:07:28.000 to do with that death sentence. And that means that 0:07:28.080 --> 0:07:32.000 the judge, the prosecution, and the defense attorney all have 0:07:32.080 --> 0:07:35.320 to do their job almost perfectly, if you will, because 0:07:35.680 --> 0:07:38.320 the penalty is one from which no redress can be 0:07:38.400 --> 0:07:39.600 made once it's imposed. 0:07:40.080 --> 0:07:42.560 Here's something I don't know about, and I don't know 0:07:42.600 --> 0:07:45.480 how much listeners do at all. What do people need 0:07:45.520 --> 0:07:49.400 to know about closed door hearings for a grand jury? 0:07:49.480 --> 0:07:51.040 And what is a grand jury? 0:07:51.840 --> 0:07:54.280 Sure? Well, a grand jury, you know, you think about 0:07:54.320 --> 0:07:56.720 it just like any other former jury. Duty might be 0:07:56.760 --> 0:07:59.040 the way that people can relate to it most. But 0:07:59.120 --> 0:08:02.160 when you're in a grand jury, it's secretive. It's just 0:08:02.400 --> 0:08:07.200 the prosecution presenting evidence, and the question is there probable 0:08:07.280 --> 0:08:11.040 cars to charge a defendant with a certain crime. The 0:08:11.080 --> 0:08:13.880 defense is not there. They do not provide evidence. It's 0:08:13.920 --> 0:08:17.000 not a trial. But ultimately it's that secret proceeding to 0:08:17.080 --> 0:08:20.160 decide whether or not a charge is made. So the 0:08:20.280 --> 0:08:24.320 difference really is the secrecy of it and the charging decision. 0:08:24.360 --> 0:08:28.080 It's a lower standard versus you know, guilty or not guilty. 0:08:28.080 --> 0:08:30.960 What a normal jury does in a public setting. 0:08:31.040 --> 0:08:34.400 And are these just regular jury like I was on 0:08:34.520 --> 0:08:36.959 jury duty yesterday as a matter of fact, Is this 0:08:37.160 --> 0:08:40.880 just the normal population? Yes, I don't know why it 0:08:40.920 --> 0:08:42.760 seems very mysterious to me. 0:08:43.920 --> 0:08:46.520 Well, I think it sounds mysterious because it's someone is 0:08:46.600 --> 0:08:51.040 I mean, it happens behind closed doors. Nobody knows, you know, 0:08:51.200 --> 0:08:55.840 about the preceding. The future defendant doesn't know that this 0:08:56.040 --> 0:08:59.839 is going on. The testimony doesn't take place in open court, 0:09:00.200 --> 0:09:04.960 there's no cross examination. All is that has really seen, 0:09:05.559 --> 0:09:08.120 at least in my experience in Arizona. When it's done, 0:09:08.320 --> 0:09:10.080 is the transcript of the proceedings? 0:09:10.679 --> 0:09:11.840 That's it is? 0:09:11.880 --> 0:09:14.240 The transcript? Does that go on the official record? 0:09:14.280 --> 0:09:16.760 And is that something that can be looked at by 0:09:16.800 --> 0:09:18.920 the defense or anyone else at a later time. 0:09:19.400 --> 0:09:21.440 Yeah, certainly. And we see this in a lot of 0:09:21.720 --> 0:09:25.000 death penalty cases, but also other cases where they might 0:09:25.120 --> 0:09:29.199 challenge the sufficiency of the indictment, and those challenges are 0:09:29.280 --> 0:09:33.920 all based on the grand jury. If the prosecution failed 0:09:33.960 --> 0:09:38.360 to present exculpatory evidence that they knew they had, etc. 0:09:39.360 --> 0:09:43.160 If a witness lied during the grand jury in order 0:09:43.200 --> 0:09:47.120 to precipitate an indictment being filed, those sort of things 0:09:47.200 --> 0:09:49.920 can be something that they looked at because you again, 0:09:50.040 --> 0:09:53.160 you're not subject to cross examination. So if a police 0:09:53.160 --> 0:09:56.880 officer goes in there and says something that is not 0:09:57.000 --> 0:10:01.160 true or is later contradicted, they contradict themselves on the stand, 0:10:01.320 --> 0:10:05.200 that testimony can be used to attack their credibility and 0:10:05.360 --> 0:10:07.120 or attack the credibility of the indictment. 0:10:07.600 --> 0:10:09.160 One more follow up with that. 0:10:09.240 --> 0:10:11.800 Let's say that scenario just happened a police officer or 0:10:11.880 --> 0:10:15.760 any witness is then you know their testimony is found 0:10:15.760 --> 0:10:20.160 to be contradictory. Could that mean midstream that the charges 0:10:20.240 --> 0:10:23.480 are then changed, that those are then dropped or is 0:10:23.520 --> 0:10:24.199 that not the case? 0:10:25.080 --> 0:10:27.960 No, that's unlikely because when you that is a challenge 0:10:27.960 --> 0:10:31.000 that would maybe take place at the grand jury challenging 0:10:31.080 --> 0:10:35.600 the grand jury transcript. So let's say Officer X goes 0:10:35.600 --> 0:10:39.520 in and testifies to something and his police report is 0:10:39.600 --> 0:10:43.600 completely different. You could maybe challenge the grand jury proceedings 0:10:43.640 --> 0:10:46.960 on that basis. If it gets to the trial portion 0:10:47.240 --> 0:10:50.240 of the proceedings, you could go back and impeach his 0:10:50.440 --> 0:10:56.200 credibility with that prior testimony. Like in Arizona, there's limits 0:10:56.200 --> 0:10:58.120 and I forget the exact amount of days, but you 0:10:58.160 --> 0:11:01.040 have to challenge the grand jury finding within a certain 0:11:01.080 --> 0:11:04.200 amount of days that precedes trial. So once that window 0:11:04.360 --> 0:11:07.880 is closed and or things are ruled upon, that becomes 0:11:07.880 --> 0:11:11.080 an issue for the appellate record, not trial per se, 0:11:11.120 --> 0:11:13.680 other than to impeach the witness with their prior testimony. 0:11:14.360 --> 0:11:16.920 So the second hearing I wanted to talk about this 0:11:17.040 --> 0:11:21.720 happened February twenty eighth of this year, and this hearing 0:11:21.960 --> 0:11:25.640 was open to the public. So in this instance, a 0:11:25.679 --> 0:11:30.079 lot was made on the fact that the defendant, Brian Kolberger, 0:11:30.320 --> 0:11:33.640 was wearing a suit. Can you give your thoughts on that, 0:11:33.760 --> 0:11:36.280 the judge's decision, the family's reaction. 0:11:37.440 --> 0:11:40.400 Sure, and I understand seeing some of the family's comments 0:11:40.400 --> 0:11:43.560 how they don't appreciate seeing that what have you. But 0:11:43.640 --> 0:11:45.720 we have to remember, going back to what I said 0:11:45.720 --> 0:11:49.360 earlier about the propriety that everything is done right. In 0:11:49.400 --> 0:11:53.720 a death penalty case, a defendant is presumed innocent, and 0:11:53.720 --> 0:11:55.880 we tend to forget that, I think in the court 0:11:55.880 --> 0:11:58.719 of public opinion, and if they are seen especially when 0:11:58.720 --> 0:12:01.280 we talk about a high profile case like this, if 0:12:01.320 --> 0:12:06.280 they are seen in jail garb or shackled with a 0:12:06.400 --> 0:12:10.120 stun belt and chains, and what have you. Then people 0:12:10.160 --> 0:12:13.080 begin to inform an impression not only of his guilt, 0:12:13.480 --> 0:12:18.000 his violent nature. They begin forming those oppressions off those visuals. 0:12:18.120 --> 0:12:20.840 So you want to prevent that at every stage of 0:12:20.840 --> 0:12:24.839 the proceeding before guilt has been established, if you will. 0:12:25.200 --> 0:12:28.440 So that is very important. Again, if you have an 0:12:28.480 --> 0:12:31.959 appellat attorney looks down years down the road and says, well, look, 0:12:32.040 --> 0:12:35.640 this guy was put in shackles and paraded in front 0:12:35.679 --> 0:12:40.959 of the entire jury panel of Leta County, and therefore 0:12:41.080 --> 0:12:44.120 his trial wasn't fair. That could be a viable argument 0:12:44.160 --> 0:12:46.480 that could have a disc sentence reversed. 0:12:47.040 --> 0:12:49.160 So really it sounds like for the greater good of 0:12:49.200 --> 0:12:51.520 the sanctity of not having the case overturned. 0:12:51.559 --> 0:12:56.439 Almost well, yeah, I mean, that's one less issue of pursuit, 0:12:56.520 --> 0:12:59.480 if you will, on the appellate level at the federal. 0:12:59.240 --> 0:13:02.719 Level, with your court room experience, I don't know if 0:13:02.720 --> 0:13:05.840 you've had the experience of where a defendant is both 0:13:05.920 --> 0:13:10.320 dressed in civilian closed and dressed in shackles, and is 0:13:10.360 --> 0:13:12.800 there a different feel sort of in the room or 0:13:12.840 --> 0:13:13.600 from the jury. 0:13:14.040 --> 0:13:17.679 Well, the jury is only going to see a defendant 0:13:17.880 --> 0:13:21.840 in street clothes. Quote unquote. If they are a danger, 0:13:22.000 --> 0:13:27.600 every effort is made to mask any restraints that they 0:13:27.600 --> 0:13:29.600 have on them. They're not going to be sitting there 0:13:29.640 --> 0:13:33.800 with handcuffs on unless there's some particular reason for it. 0:13:33.920 --> 0:13:35.880 The jury would probably be instructed not to make any 0:13:35.960 --> 0:13:40.000 inferences from that. So anytime somebody's in front of a jury, 0:13:40.360 --> 0:13:42.960 they are going to be in quote unquote street clothes, 0:13:43.000 --> 0:13:44.679 and any restraints will be masked. 0:13:45.320 --> 0:13:48.480 That's a really interesting point because I must have conflated 0:13:49.240 --> 0:13:52.560 seeing pre trial hearings because I'm like, oh, well, I 0:13:52.559 --> 0:13:55.840 can picture plenty of defendants and clothes, but not in 0:13:55.840 --> 0:13:56.600 front of the jury. 0:13:57.400 --> 0:14:00.600 That's true. So if there is a pre trial where 0:14:00.679 --> 0:14:04.120 it's only the judge, if you will, and not televised, 0:14:04.679 --> 0:14:09.119 then the judge has knowledge obviously of the defendant's custodial 0:14:09.160 --> 0:14:13.120 status because in many cases they've set that status. They 0:14:13.120 --> 0:14:15.640 don't need to be protected from it if it doesn't 0:14:15.679 --> 0:14:18.840 interfere with the sixth Amendment right of the defendant. Because ultimately, 0:14:18.920 --> 0:14:22.200 in a courtroom, it is the jury that makes the decision. 0:14:22.200 --> 0:14:24.520 They are the final arbiter of guilt or innocence. 0:14:24.960 --> 0:14:27.560 Yeah, that makes perfect sense, perfect sense, Thank you. 0:14:30.760 --> 0:14:33.360 Let's stop here for a break. We'll be back in 0:14:33.400 --> 0:14:42.440 a moment. There have been well more than a dozen 0:14:42.560 --> 0:14:45.560 pre trial hearings in this case, but the most significant 0:14:45.600 --> 0:14:48.119 revelation is the alibi of the accused. 0:14:48.520 --> 0:14:48.920 So here. 0:14:48.920 --> 0:14:52.000 Their alibi defense apparently is that he likes to drive 0:14:52.080 --> 0:14:53.920 around and see the moon and the stars. 0:14:54.360 --> 0:14:57.680 The new alibi. I have like a little theory about that. 0:14:58.240 --> 0:14:59.680 Do I buy it? No? 0:15:00.480 --> 0:15:04.000 The prosecution is currently taking great issue with what they 0:15:04.040 --> 0:15:07.280 claim is the defense's lack of progress in furthering the 0:15:07.320 --> 0:15:11.400 details of the defendant's alibi, and in April twenty fourth, 0:15:11.520 --> 0:15:15.400 twenty twenty four, filing from prosecutor Bill Thompson, he writes, 0:15:16.000 --> 0:15:18.840 it has now been approximately eleven months since the state 0:15:18.920 --> 0:15:22.880 filed its request for discovery disclosure alibi demand on May 0:15:22.920 --> 0:15:25.960 twenty third, twenty twenty three, and almost a year and 0:15:26.040 --> 0:15:29.280 a half since the homicides occurred. The defendant has been 0:15:29.320 --> 0:15:32.200 given more time than he is legally entitled in order 0:15:32.240 --> 0:15:36.120 to provide his alibi. The state is substantially prejudiced and 0:15:36.200 --> 0:15:39.520 compromised in its ability to investigate and respond to new 0:15:39.720 --> 0:15:41.920 or additional alibi related disclosures. 0:15:42.600 --> 0:15:47.400 Ryan Coburger outstargazing and driving the night four University of 0:15:47.400 --> 0:15:50.680 Idaho students were murdered. That's part of the alibi he's 0:15:50.680 --> 0:15:51.720 offering to the court. 0:15:52.320 --> 0:15:55.640 That's crime reporter Antoinette Levy, who's been following this case 0:15:55.640 --> 0:15:59.600 from the beginning. She continues describing the alibi details on 0:15:59.640 --> 0:16:02.400 a recent an episode of Law and Crime Network's Crime 0:16:02.440 --> 0:16:04.000 Fix with Antoinette Levy. 0:16:06.440 --> 0:16:09.960 So he says he certainly wasn't at that house. Instead, 0:16:10.080 --> 0:16:13.320 his lawyer's right mister Coburger was out driving in the 0:16:13.360 --> 0:16:17.040 early morning hours of November thirteenth, twenty twenty two, as 0:16:17.040 --> 0:16:19.840 he often did to hike and run and or see 0:16:19.840 --> 0:16:22.920 the moon and stars. He drove throughout the area south 0:16:22.960 --> 0:16:27.960 of Pullman, Washington, west of Moscow, Idaho, including Wawaii Park 0:16:28.520 --> 0:16:31.040 in Idaho. If a defendant is going to claim they 0:16:31.040 --> 0:16:34.080 have an alibi, they have to tell the prosecutor about 0:16:34.120 --> 0:16:37.160 a specific place or place is where they were when 0:16:37.160 --> 0:16:39.680 a crime took place, and they have to identify a 0:16:39.680 --> 0:16:44.280 witness or witnesses who can vouch for them. 0:16:44.600 --> 0:16:47.680 In the state's motion filed after the alibi was revealed, 0:16:48.120 --> 0:16:52.720 Prosecutor Bill Thompson writes, the state respectfully submits that the 0:16:52.760 --> 0:16:57.640 defendant's supplemental alibi response continues to lack the specificity required 0:16:57.680 --> 0:17:02.040 by Idaho Code nineteen Dash five, Pine nine, which provides 0:17:02.120 --> 0:17:05.440 that the defense shall state the specific place or places 0:17:05.520 --> 0:17:08.480 at which the defendant claims to have been at the 0:17:08.520 --> 0:17:11.520 time of the alleged defense, and the names and addresses 0:17:11.600 --> 0:17:14.359 of the witnesses upon whom he intends to rely to 0:17:14.520 --> 0:17:17.919 establish such alibi. In an effort to better understand the 0:17:18.000 --> 0:17:22.400 legalities of these motions, I continued my conversation with Kirknermi. 0:17:22.760 --> 0:17:25.680 I asked him to explain why the prosecution had such 0:17:25.680 --> 0:17:29.200 a strongly worded filing after the alibi was revealed. 0:17:31.960 --> 0:17:35.840 It's interesting because idahol must be a little different. An alibi, 0:17:36.240 --> 0:17:38.919 in my experience in Arizona, is nothing that has to 0:17:38.960 --> 0:17:42.560 be supported or enunciated. I mean, you might call witnesses 0:17:42.600 --> 0:17:46.280 to support it, but you wouldn't have to enunciate it 0:17:46.359 --> 0:17:47.000 if you will. 0:17:47.240 --> 0:17:50.320 I'd love clarification of the fact that in this case, 0:17:50.359 --> 0:17:53.439 the prosecution said the lack of a finalized version of 0:17:53.560 --> 0:17:57.399 Coberger's alibi was concerning and argue that a deadline was 0:17:57.480 --> 0:18:01.240 necessary to ensure the alibi was not affected by evidence 0:18:01.640 --> 0:18:06.320 unveiled during discovery I guess first, what is discovery because 0:18:06.320 --> 0:18:08.920 my understanding was that was the finding out of information. 0:18:09.840 --> 0:18:13.040 Yeah, I mean there is a bit of mystery surrounding 0:18:13.080 --> 0:18:17.520 that because we don't have all the information. My understanding 0:18:17.840 --> 0:18:21.520 is that what the Coburger team is saying with this 0:18:21.920 --> 0:18:26.320 stargazing alibi, if you will, is that they will be 0:18:26.400 --> 0:18:31.560 able to support this alibi, not by persons or you know, 0:18:31.720 --> 0:18:36.359 video evidence, but strictly by cell phone evidence that contradicts 0:18:36.680 --> 0:18:40.840 the cell phone evidence brought in by the state. And 0:18:40.960 --> 0:18:44.040 they are also making the assertion, as I understand it, 0:18:44.440 --> 0:18:48.200 that the state has not fully disclosed all the cell 0:18:48.280 --> 0:18:52.639 phone evidence that would be supportive of the alibi. Thus, 0:18:52.680 --> 0:18:56.119 they are simply putting out there that he was stargazing 0:18:56.200 --> 0:18:59.240 and their cell phone expert will support that. 0:18:59.520 --> 0:19:02.560 I have to ask, what's your knee jerk reaction to 0:19:02.640 --> 0:19:03.240 the alibi? 0:19:03.280 --> 0:19:06.359 If you want to share, do I buy it? No? 0:19:07.400 --> 0:19:09.720 But if that's what you're asking, do I buy it no? 0:19:10.400 --> 0:19:13.720 But it remains to be seen what the cell phone 0:19:13.800 --> 0:19:16.399 evidence is going to demonstrate. A lot of people send 0:19:16.400 --> 0:19:18.919 to think that a defense attorney or a group of 0:19:18.920 --> 0:19:22.480 defensive attorneys sit down and concoct a defense or that 0:19:22.560 --> 0:19:24.600 they sit down with their client and they make up 0:19:24.640 --> 0:19:28.880 a defense. But sometimes this won't shock anybody who's done 0:19:28.960 --> 0:19:32.840 defense work. Clients will lie to their attorneys, right, and 0:19:33.320 --> 0:19:36.320 a lot of times sometimes you know you can lie 0:19:36.760 --> 0:19:41.240 in a way that there's no affirmative proof to the contrary. 0:19:41.760 --> 0:19:45.880 So he says, I'm out stargazing. He very well could 0:19:45.920 --> 0:19:50.080 have been stargazing before or after he committed this crime. 0:19:50.400 --> 0:19:53.719 There's no proof to the contrary. So my guess is 0:19:54.080 --> 0:19:57.280 mister Kolberger believes he's very smart and says, hey, this 0:19:57.359 --> 0:19:59.600 is my alibi. You can't disprove it. 0:20:00.240 --> 0:20:02.000 Stephanie joins the conversation. 0:20:02.800 --> 0:20:05.600 That does sound like it's right out of a movie. 0:20:05.800 --> 0:20:07.600 Is that what actually happens. 0:20:07.760 --> 0:20:10.639 Somebody seems so tricky that they're going to create this 0:20:10.880 --> 0:20:14.320 entire fabric of a story to their defense attorney. As 0:20:14.320 --> 0:20:17.320 a defense attorney, are you able to call bs or 0:20:17.359 --> 0:20:18.560 do you have to play along? 0:20:19.040 --> 0:20:22.480 Well, as a defense attorney, unless you can disprove it, 0:20:22.560 --> 0:20:25.240 you have to allow the client to tell their story. 0:20:25.320 --> 0:20:27.440 You are not judging jury. You are there to help 0:20:27.480 --> 0:20:30.639 them tell their story, whether you believe it or not. 0:20:31.520 --> 0:20:34.199 So if a client comes up and we continue with 0:20:34.280 --> 0:20:37.640 the alibi example, how can you disprove that? Is there 0:20:37.680 --> 0:20:41.919 some way to disprove that? No, if there's not, that's 0:20:41.960 --> 0:20:44.760 the point. Unless the attorney can prove the alibi to 0:20:44.800 --> 0:20:47.800 be false. Let's say he says I was with my 0:20:47.960 --> 0:20:51.520 mother or I was buying gas, and there's no evidence 0:20:51.600 --> 0:20:54.520 to support the alibi. Then he or she can confront 0:20:54.760 --> 0:20:58.399 their client with this evidence. There's no gotcha moment, right, 0:20:58.640 --> 0:21:01.560 There's no one more thing ask you this because you 0:21:01.600 --> 0:21:04.119 can't disprove it. And that's why a lot of criminal 0:21:04.160 --> 0:21:07.639 defense think, hey, this is a great story because it 0:21:07.680 --> 0:21:10.480 cannot be disproven. They've got time to sit in jail 0:21:10.560 --> 0:21:13.600 and vet their lie, if you will. And this cannot 0:21:13.640 --> 0:21:16.879 be disproven, can't be able to be proven, but it 0:21:16.920 --> 0:21:18.400 certainly can't be disproven. 0:21:19.040 --> 0:21:22.320 Is it as simple as somebody checking the weather to 0:21:22.359 --> 0:21:25.840 say that that particular night there were no stars to 0:21:25.880 --> 0:21:26.760 be seen in the sky. 0:21:27.480 --> 0:21:30.960 No, not at all. I mean it's you could still stargaze, 0:21:31.000 --> 0:21:34.240 you can still gaze at the clouds, you could do anything, right. 0:21:34.280 --> 0:21:37.240 I mean, there's you could say it's less probable, but 0:21:37.320 --> 0:21:39.640 you can't definitively prove it to be a lie. 0:21:39.720 --> 0:21:43.520 Can you, as a defense attorney. You hear this story, 0:21:43.640 --> 0:21:46.720 you're not buying it. Are you able to excuse yourself 0:21:47.000 --> 0:21:48.560 as the defense attorney? 0:21:49.480 --> 0:21:54.000 No, just because you don't believe a story doesn't mean 0:21:54.720 --> 0:21:57.960 that you are not the right attorney for the car. 0:21:58.000 --> 0:22:00.560 I mean clients all the time in my so, I 0:22:00.560 --> 0:22:02.600 want an attorney that believes in me. I want an 0:22:02.600 --> 0:22:05.200 attorney that believes in me. And the response is fine, 0:22:05.200 --> 0:22:07.760 if you want one, stupid enough, go find one. But 0:22:07.920 --> 0:22:09.480 I'm not going to buy this story, and I don't 0:22:09.480 --> 0:22:11.919 think a jury will. But if that doesn't knock the 0:22:12.000 --> 0:22:16.200 client off the story, then they they the client can 0:22:16.240 --> 0:22:19.000 get up on the stand and tell that story. Brian 0:22:19.080 --> 0:22:21.600 Colberger can get up on the stand and tell the 0:22:21.640 --> 0:22:24.119 story that he was stargazing that night. That does not 0:22:24.720 --> 0:22:27.520 violate the ethics of the attorney, and as a matter 0:22:27.520 --> 0:22:30.560 of fact, it is their ethical obligation. Particularly in a 0:22:30.600 --> 0:22:33.560 death penalty case. An attorney can't say, well, you know what, 0:22:33.640 --> 0:22:36.680 I had this defense or I had this bit of mitigation, 0:22:37.040 --> 0:22:39.040 but I didn't believe it, so I didn't present it 0:22:39.040 --> 0:22:41.560 to the jury because it's not what the attorney believes, 0:22:41.560 --> 0:22:43.280 it's what the jury believes. 0:22:44.720 --> 0:22:47.840 After this conversation, we checked the weather and saw that 0:22:47.920 --> 0:22:52.120 when Coberger is alleged to be stargazing, it was overcast 0:22:52.200 --> 0:22:55.760 with intimate and isis fog. Having spoken with defense attorney 0:22:55.800 --> 0:22:58.840 Kirk Nurmi, Stephanie and I wanted to balance the equation. 0:22:59.400 --> 0:23:02.840 Here's a turn me and former prosecutors Steven Greenberg's take 0:23:02.960 --> 0:23:05.800 on the suspect's alibi and how he thinks it might 0:23:05.800 --> 0:23:06.520