It’s been more than seven months since the grizzly death of four University of Idaho students in their off-campus housing unit. Megyn called the case that has captured national attention “compelling, fascinating, and horrifying,” and, with suspect Bryan Kohberger in custody, it appears as though the prosecution and defense is starting to take shape.
Kohberger had a not-guilty plea entered on his behalf earlier this year. His defense team has since filed motions asking for the prosecution to be ordered to turn over additional evidence about the DNA used in the investigation, their surveillance methods, and more. Meanwhile, Latah County Prosecutor Bill Thompson filed the notice of his intent to seek the death penalty in the accused stabbing case on Monday.
On Wednesday’s show, Megyn was joined by prosecutor Marcia Clark and defense attorney Mark Geragos for a Kelly’s Court to analyze the latest developments in the case, the role of the DNA evidence, and Kohberger’s possible defense.
Seeking the Death Penalty
Megyn noted that there have been several “significant developments” in the case over the last few weeks, but perhaps none is greater than the confirmation that the death penalty will be on the table. Both Clark and Geragos were not surprised by the prosecutor’s decision, and they believe there are strategic reasons for seeking it.
Clark said it’s important to consider all the facts of this case and the area in which it is being tried. “You have to remember… Idaho has different morals and different standards in terms of what is death-worthy than, say, California does,” she noted. “That said, the horrific murder of four young people in this manner that clearly appears to be premeditated – if proven – really does show a very serious kind of offender where you would expect the death penalty to be on the table for sure.”
It should also be noted that the notice of intent is not final. “They have said in their letter that they can withdraw the intent because, at this time, they don’t have any evidence of mitigation,” Clark said. Mitigation, as she explained, is the defense’s “effort to show why his life should be spared.” So, while she is not surprised that a crime like this “would be death eligible,” she said it is still too early to know what will ultimately happen. “I can’t say I’m surprised, but I do say let’s wait and see if they hang on to this,” she shared. “I don’t know that they will.”
Megyn questioned if juries are less likely to convict when death is possible, but Geragos believes the opposite to be true. In his view, prosecutors will seek the death penalty because it shapes jury selection. “Studies have shown death penalty jurors are more pro-prosecution,” he said. “In a circumstantial evidence case like this you want somebody – if you’re a prosecutor – who is going to be more pro-prosecution, and this is a perfect way to weed out the people who would be more on the fence.”
Understanding Circumstantial Evidence
DNA evidence appears as though it is going to figure prominently into this trial, and the defense attorneys have filed a motion asking the court to order prosecutors to turn over more information about the DNA found during the investigation. Initially, genetic genealogy was used to link Kohberger, via his father, to the crime, but he has subsequently submitted a cheek swab that – according to court filings – is “statistical match” to the DNA found on the knife sheath at the crime scene.
Even so, Clark explained the evidence is still circumstantial. “People have this notion that circumstantial means something much more removed, but circumstantial evidence is a fingerprint, circumstantial evidence is DNA,” she said. During her days as prosecutor, Clark said jurors used to scoff at the idea of a circumstantial evidence case until she informed them that said evidence included something like “a fingerprint on the victim’s shoulder.”
The limitation of circumstantial evidence like DNA or fingerprints, as she explained, is that “you can’t tell when it was deposited.” In the case of Kohberger, the DNA found on the knife sheath is at least 5.37 octillion times more likely to be his. “But you don’t know when that DNA got on there,” she said. “So, it leaves room for the defense to say someone else dropped the knife sheath – it was mine at one time and I had my fingerprints on it or I had my DNA on it from months ago.”
What makes this evidence against Kohberger “damning,” however, is its proximity to the crime scene. “I mean what is your knife sheath doing under the body of one of the victims when you have no known natural or un-culpable reason for being there,” Clark asked. “They didn’t know each other, they didn’t party together, so just the fact the knife sheath was there and then, of course, the DNA on it – you put it all together, but it’s all circumstantial.”
Geragos noted that the Innocence Project has found through a lot of its work that circumstantial evidence is often more reliable than direct evidence. “Most of the evidence against people who were condemned and sentenced to death row was as a result of direct evidence, and they were exculpated by the circumstantial evidence of DNA,” he shared. “It turns out that many of the studies show that direct evidence eyewitness identification is much more fallible than circumstantial evidence.”
Possible Defense Tactics
As Megyn outlined, Kohberger’s defense team is seeking additional discovery materials on the genetic genealogy techniques investigators used before labeling Kohberger the suspect and also more information on why the FBI expanded the range of model years on the white Hyundai Elantra they were looking for. The initial time frame would not have included Kohberger’s 2015 vehicle. “There’s been some questions raised about whether that expansion happened after they got the hit on Kohberger’s dad and started to zero in,” she noted.
Geragos called this a “brilliant strategy by the defense” because they are trying to create a timeline in which the Kohberger’s car was only included after the fact. He said they are employing a “very subtle kind of a gray mail” technique that is most often seen in classified documents cases but it could work here as well. “Investigative agencies do not want to reveal how they use or how they get to this genetic testing that then takes them to one of the relatives,” he surmised. He believes the defense is saying “show us” in hopes that the prosecution says “we’re not going to do that.”
And even if the prosecution instead says that it will only turn over the technique under a protective order, it still can work to the defense’s advantage. “That’s fine because then what you’re going to do is you’re going to take the two unidentified males that were found at the scene, the DNA, and you’re going to use the same testing protocol and see who you come up with in the databases based on their very own protocol,” he explained. “God forbid you hit somebody who is a potential other suspect because then you’re going to ask all kinds of questions about why their DNA was there or that universe of alternative suspects, third party liability.”
You can check out Megyn’s full Kelly’s Court with Clark and Geragos by tuning in to episode 577 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.