Will there be MORE delay? And was Bryan Kohberger trolling the online disscussions?

January 5, 2023
 
Hello, Good Friends of the Good Lori!
 
I hope you all had wonderful Christmas and New Year celebrations with family and friends. Our holiday with our daughter, future son-in-law, and his family was everything we could have hoped for and more. We are grateful that our families have become so close.
 
There have been some BIG developments in two cases that we need to talk about. There is so much to talk about that this will be a long newsletter. I’ve tried to divide it with headings so you can skip things that don’t interest you.
 
University of Idaho Murders.
 
As I am sure you are all aware, there was an arrest in the Idaho college murders. Twenty-eight-year-old Bryan Kohberger was arrested on Friday, December 30, 2022. He was arrested at his family’s home in Pennsylvania and extradited to Idaho. He arrived in Idaho yesterday and appeared in court today for his initial appearance. Following today’s court appearance, the probable cause affidavit was unsealed. The affidavit contained a lot of significant information.
 
Kohberger attended Northampton Community College and DeSales University. He has associate’s and bachelor’s degrees in psychology and a master’s degree in criminal justice. He was in the first semester of his Ph.D. study at Washington State University in Pullman, Washington. The Washington State University and the University of Idaho campuses are only a few miles away, across the Washington-Idaho border.
 
The probable cause affidavit is detailed and very revealing. The Moscow police did an excellent job of investigating and documenting the case. They were methodical and thorough. There is some eerie online information that I’ll talk about below.
 
The affidavit reveals that the sheath from a Ka-Bar knife was left at the scene. Touch DNA was lifted from the snap closure. According to the affidavit, law enforcement knew much more about the Hyundai Elantra than they let on. They quickly identified the vehicle and its owner. They knew the vehicle was registered to a student at WSU and that he had been pulled over by campus police earlier. As a result of that stop, they also had his phone number. They began pulling phone records and GPS location data for the phone immediately.  
 
Since Kohberger had no previous criminal history and had not been a military or law enforcement member, his DNA would not have been in the national database. That led law enforcement to seek familial matches.
 
On December 27, 2022, law enforcement in Pennsylvania recovered items from the trash at the home of Kohberger’s parents. They were able to lift DNA from the garbage that was consistent with the biological father of the depositor of the DNA on the knife sheath found at the scene. The results excluded 99.99% of the population from being the biological father of Kohberger. The familial link, combined with other information developed in Idaho, was enough to get the arrest warrant for Kohberger.
 
After the murders, Kohberger re-registered the Hyundai Elantra in Idaho. I’m not sure how much to make of this. While I think he thought it might help throw law enforcement off if they were looking for a car with Pennsylvania plates, I also noticed that the Pennsylvania registration expired in November 2022, meaning he had to re-register the vehicle or risk being pulled over for expired tags.
 
Here is the eerie part. It appears that after the murders, Kohberger was trolling the Reddit and Facebook sites that were following the case. The information has been reviewed on the Reporter Room YouTube channel. I don’t know this creator, but her video about the possible link between Kohberger and the online groups following the case is chilling. You can see it here: https://www.youtube.com/watch?v=kHmumYFxX64ç
 
Kohberger actually appears to have recorded himself outlining his theories of the case, including the order in which the murders happened. In the recording, he claims to be a family member of someone close to the investigation. A person who knows him has said the recording sounds like Kohberger. In the recording, the poster “theorizes” that the killer started on the third floor with Xana and Ethan, then moved to the second floor for Kaylee and Maddie. He says the killer “cleanly and quietly unalived the first victim.” Does that sound slightly congratulatory? He then says the second victim attempted to run and screamed loudly as he grabbed her. He “theorizes” that the wounds were of such force because he was “delivering it quickly and forcibly to quiet her.” This may answer why he didn’t kill the roommates on the ground floor. The scream apparently spooked him and caused him to leave before he intended.
 
The probable cause affidavit indicates that one of the roommates on the ground floor heard the scream. She opened her door because of odd noises on several occasions. On the last occasion, she saw a man dressed in dark clothing and a mask quickly exit the apartment.  
 
Kohberger also appears to have suggested a “theory” that the killer left the knife sheath behind (a fact that, until yesterday, only the killer could have known) and argued with a fellow Reddit poster who thought the sheath theory was silly.  
 
As you all know, I like and respect Scott Reisch – but reasonable minds can differ. Scott felt the Idaho case had gone cold. I disagreed and pointed out that there was a mountain of information to sift through. Little did we know how much information law enforcement already knew about the suspect.
 
It seems that the small community of Moscow did a professional job of the investigation. While we don’t have all the information in the Vallow/Daybell case, it appears Fremont and Madison Counties could take a lesson from Moscow.
 
And speaking of Vallow/Daybell, there is some juicy news to report there too.
 
Scheduling Order and Prior’s objection. On December 16, 2022, Judge Stephen Boyce issued a scheduling order in the Vallow and Daybell cases. These orders are standard in complex cases and set deadlines for preliminary actions and issues. In this case, the judge set a deadline of January 9, 2023, for each side to develop and identify appropriate juror questions that will be included in a juror questionnaire. Juror questionnaires are essential in complex, high-profile cases where many potential jurors are summoned. The juror questionnaire helps quickly identify jurors who could not be available or are disqualified by age, health, or disability. It also helps identify qualified jurors.
 
On December 23, 2022, Chad Daybell’s lawyer, John Prior, objected to the January 9, 2023, deadline for the jury questionnaire questions claiming that he needs more time to work through his mitigation theory before identifying appropriate questions for the jury. While Prior is probably right, it points out the corner Judge Boyce has painted himself into.
 
The selected jurors will decide both the guilt/innocence phase of the trial and the penalty phase. During the penalty phase, the jury will determine whether the death penalty should be imposed. Because of that, assuring you have a qualified jury is critical.
 
Prior’s motion contains an interesting tidbit. Prior tells the court that he anticipates filing a new motion to continue. He says it is because he has or will be asking the court to appoint a capital-qualified attorney. The information is buried in a footnote, “The Court also noted, ‘the purely speculative argument that some other attorney may at some point join the defense team and the new attorney would need time to prepare….’ At the time of the filing of the previous Motion to Continue, Mr. Daybell had not yet requested the appointment of an additional, capital-qualified attorney to the defense team. He has now done so, and the reason is no longer speculative.”
 
This development puts Judge Boyce between a rock and a hard place of his own making. Lori Vallow has not waived her right to a speedy trial, and the judge has declined to sever the trials on more than one occasion. According to Vallow’s attorneys, the trial must be set before February 21, 2023. Jim Archibald announced in court that unless the trial date was set before then, he would be filing a motion to dismiss her charges. After consulting with Ada County, Judge Boyce set the trial for April 3, 2023. He also indicated he hoped jury selection could begin in late March so the trial could start promptly on April 3.
 
Now, Daybell is asking for a continuance and hinting that he hopes for a date in October 2023. That puts Judge Boyce in a difficult spot. Whose rights does he compromise?
 
On January 4, 2023, Boyce DENIED Prior’s motion to change the date the jury questions were due. That’s big. Or, to quote Mandy Matney of the Murdaugh Murders Podcast, “That’s a big deal.” It’s a big deal because it confirms what I’ve said since Prior filed his motion: Judge Boyce will deny any further continuances and order the case be tried beginning on April 3, 2023.
 
Here is my thought process. Some constitutional challenges are weightier than others. If an appeals court were to find that Lori Vallow’s speedy trial rights were violated, they could order the case against her dismissed. Whether the state could refile would depend on the findings of the Idaho supreme court. If the court found that the delay was extensive and egregious, they could dismiss Vallow’s case “with prejudice,” meaning it could not be refiled.
 
If the case goes to trial as scheduled, the chances of that are slim. The statute allows the court to delay past a speedy trial deadline for “good cause.” I think Judge Boyce can argue for good cause for the brief delay from February 21 to April 3 by explaining the need to accommodate the schedule of the Ada County Courthouse in a high-profile case. That leaves Daybell with the argument that he had ineffective assistance of counsel because he was forced to go to trial too soon. As I’ve explained before, the rule on ineffective assistance of counsel is hard to meet.
 
The case of Strickland v. Washington, 466 U.S. 668 (1984) is the case that sets out the rules. Strickland says there is a two-prong test. First, the defendant must show that their trial lawyer’s performance fell below an objective standard of reasonableness, and second, that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.
 
Let’s look at each question. First, the lawyer’s performance must have been unreasonable in the specific situation and under the specific facts as given. That means that Prior’s performance must be judged to have fallen below the standard of a reasonably competent lawyer in the same situation. Second, the defendant must be able to show that the outcome of the case (the verdict) would have been different if not for the lawyer’s ineffective assistance.
 
The appeal for ineffective assistance of counsel probably fails for both reasons. First, as long as Prior does what a reasonable attorney would do in his circumstances, he is providing effective assistance. He continues asking for a continuance and for the cases to be severed.
 
To sum up, the consequence of setting the trial date beyond April 3, 2023, is far more severe than the consequence of holding the trial in April and risking an appeal on ineffective assistance of counsel. There are only two alternatives, sever the cases and permit Chad to go to trial in the fall while keeping the trial date for Lori, or force both to trial in April. Given Judge Boyce’s prior decisions on severance and his apparent dislike for being called out or backing down, I’d say the likelihood of him reversing himself and severing the cases is nearly nonexistent. I expect we will see the trial begin on April 3, 2023.
 
Lori Vallow’s Mental Health. For months we have heard from Jim Archibald that the defense intended to raise the issue of Lori’s mental health. Archibald said as recently as early December that we would hear about Lori’s mental health diagnosis at trial. Then, in a sharp about-face, on January 3, 2023, her lawyers filed a document titled “Notice of Intent Not to Raise the Mental Health Defense. What the actual hell?
 
As you know, Idaho does not have the insanity defense; the state has also not instituted the Guilty But Insane (GBI) plea that many states have put in place of the defense of insanity. In states where the insanity defense is allowed, it is a defense that excuses the crime and relieves the defendant of any culpability if it can be proven that the defendant was insane at the time of the act. In Idaho, the only way to use the defendant’s mental health is to allege that the defendant had a severe mental disease or defect that precluded the defendant from forming the required mental state (usually intentionally or knowingly). It appeared that Lori’s attorneys intended to present evidence of her mental disease or defect to try and prove she was so ill she could not form the intent to kill. From the beginning, the argument seemed weak, given that Lori appeared to do so many clear, cold, and calculated things.
 
Lori’s attorneys explained in the notice that the law requires that if they intend to call an expert witness to negate an element of the crime (such as the mental state), they must provide the prosecution with that expert’s name not less than 90 days before the trial begins. The rule applies to the guilt/innocence phase; they do not have to provide the same notice in the penalty phase. The attorneys also revealed that the defense hired three experts to examine Vallow. Dr. Michael Welner was mentioned in the caption of one of the sealed documents. While it’s unclear if Welner actually examined Vallow, he is the forensic psychiatrist who determined that Brian David Mitchell was malingering in the Elizabeth Smart case. Could it be that her own attorneys suspected Vallow of malingering? These questions will only be answered once the trial is over and there is access to the documents.
 
Vallow’s attorneys also report that she does not want to go forward with a mental health defense. Her attorneys are legally and ethically required to follow the direction of their client as long as she is competent, even if her direction goes against their advice. 
 
Join me tonight for TGIF on my YouTube Channel, Children of Darkness and Light, at 6 pm Pacific at https://youtu.be/7mow0iqcypk for much more information.