Steve Palmer is joined by private investigator Scott Shepherd of Justified Investigations for the inaugural installment of our new series, "What Would We Do?" Together, they dig deep into the highly-publicized case of Bryan Kohberger, the man who pled guilty to the infamous quadruple homicide of University of Idaho students, but is now seeking to withdraw his plea.

Steve Palmer and Scott Shepherd walk listeners through their approach if Kohberger called on them for help: Would they take his case? What are the legal standards around withdrawing a guilty plea? How would they investigate claims of mistakes or missed evidence, and is there any hope for overturning such a high-profile conviction?

Drawing on real-world experience with post-conviction and appellate cases, the duo explains the legal and investigatory checklists they’d follow, what pitfalls and optics matter, and the hard realities of mounting a defense when the evidence seems stacked and the system favors finality. This episode offers a rare, insider perspective on handling notorious cases, the science around DNA and forensic evidence, and the cold calculus of criminal defense.

3 Key Takeaways:

• Thorough Post-Conviction Review Is Essential: The process isn't about simply retrying a case. It means digging deep, ordering transcripts, analyzing legal standards, and determining if any manifest injustice occurred. Every angle, document, and expert report must be scrutinized anew.
• Scientific Evidence Requires Expert Re-examination: DNA, forensic, and cell phone evidence must be independently re-analyzed, not just accepted at face value. Even seemingly overwhelming DNA evidence can be misinterpreted or inconclusive without proper expert consultation.
• Finality vs. Justice: The justice system is structured to resist reopening resolved cases. Unless there's a clear showing of manifest injustice, such as newly discovered exculpatory evidence or demonstrable ineffective counsel, courts are unlikely to allow plea withdrawals.

Moments

09:36 Proving manifest injustice

12:39 Examining plea advisement and relief

17:28 Analyzing DNA Evidence

21:52 Gas station surveillance clues

29:47 Consulting with a medical expert

36:48 Lab testing and protocol differences

40:45 Investigator's approach to facts

48:19 Analyzing vehicle video evidence

52:14 Covering up evidence activities

58:28 Negotiating plea deals

01:02:34 Discussing legal challenges in evidence

Submit your questions to www.lawyertalkpodcast.com.

Recorded at Channel 511.

Stephen E. Palmer, Esq. has been practicing criminal defense almost exclusively since 1995. He has represented people in federal, state, and local courts in Ohio and elsewhere.

Though he focuses on all areas of criminal defense, he particularly enjoys complex cases in state and federal courts.

He has unique experience handling and assembling top defense teams of attorneys and experts in cases involving allegations of child abuse (false sexual allegations, false physical abuse allegations), complex scientific cases involving allegations of DUI and vehicular homicide cases with blood alcohol tests, and any other criminal cases that demand jury trial experience.

Steve has unique experience handling numerous high publicity cases that have garnered national attention.

For more information about Steve and his law firm, visit Palmer Legal Defense.

Copyright 2026 Stephen E. Palmer - Attorney At Law

Mentioned in this episode:

Circle 270 Media Podcast Consultants

Circle 270 Media® is a podcast consulting firm based in Columbus, Ohio, specializing in helping businesses develop, launch, and optimize podcasts as part of their marketing strategy. The firm emphasizes the importance of storytelling through podcasting to differentiate businesses and engage with their audiences effectively. www.circle270media.com

All right, lawyer talk, Off the Record On Air, back with Scott Shepherd, investigator,

Justified Investigations. Topic of the day, Kohberger,

Kohberger, Kohberger. Who the hell is Bryan Kohberger? That's his name, right, Bryan?

That is correct. He is the guy who pled guilty

to the brutal quadruple homicide out in Idaho

of the students at their apartment, University of

Idaho students. And this happened a couple of years ago. It's been all over the

news lately because Kohberger is trying to withdraw his plea

of guilty and go back to court. Exactly.

So what we're going to do here, and we're going to do more of these,

what would we do? This is the series, guys. What would we do

if Kohberger called us? If Kohberger was saying, man, I saw you guys last week

when you were talking to Scott Shepherd about how you guys work up cases. And

we do a ton of this post-conviction appellate type stuff together.

What would we do? And I guess the first question is, would we take the

case? Would you?

Yes. Yes. I put him on the spot. It's too interesting not to,

quite honestly. So it's sort of odd. You know, we get these, as we

were talking off the air a little bit, like we often, we represent bad people

who have done bad things. And we represent bad people who maybe

haven't done something bad this time. And sometimes we represent

good people who did a bad thing, and maybe we represent good people who are

just not guilty. It doesn't matter to us, I guess.

Yeah, I think the frame of mind that you have to have when you start

looking at a case of this magnitude, or really any cases, all

people could do all things. And if we categorize them as good or bad, then

we're sort of behind the 8-ball from the beginning. So just a person who's accused

of doing a thing, and then we sort of get to where we get. At

some point. I sort of look at the system like it may be a— people

are going to criticize me, but I don't care— like a pilot's checklist, right? So

a pilot gets on, gets in his plane. I'm not a pilot, so I'm surmising

this. But a lot of stuff in life, we have these

little checklists. I have— you have systems in your business. I have systems in my

business. Somebody, a pilot goes in the plane and they have this long list

of stuff, you know, check, check, check, check, check. I

had an RV one time and I did that. Every time I packed up the

RV, I would go down my list because— not because—

I don't know if I ever missed anything, but I didn't want to ever miss

anything. And the system is like that. We have to have a bulwark

on the other side. Like it or not, Kohberger gets a defense.

Yeah. And there's a checklist in the system. He's got to have a

defense and the defense attorneys have to look into the case.

They have to mount it. Otherwise, the other side can run amok. And if you

don't think that can happen, all you have to do is research wrongful convictions.

It can happen. Absolutely. And to your analogy, right? So

the pilot says the plane will fly until he gets to something that tells him

the plane's not going to fly. Right. You skip something on a checklist one time,

it's, oh, it never happened. Can't happen this time. As I say about

wrongful convictions all the time, everybody agrees they happen, but nobody thinks it's the case

they're working on now. Yeah. So the pilot didn't think his plane was going to

crash that time. But anyway, we probably digressed too

far. Lots of people are taking on Kohberger. I've seen it in the news because

what he's trying to do here is withdraw his plea of guilty. He's already

pled guilty. He's gone into a courtroom with lawyers

and said, I'm guilty. And apparently some of his family

is not real happy about the plea bargain or some of the families. Let's talk

about the plea bargain was basically, He pleads guilty, the prosecutor will

drop the death specs. So no death penalty for Kohberger. Correct. And he does

LWOP, life without parole. Times 4, and then they added

10 years for the burglary. Just for fun, you get an extra 10. So life,

some of this is just semantics because— Absolutely. You know, I don't know.

But I guess in theory, you could find out later that one of the

cases gets, like one count gets reversed, but not the other. So maybe there's some

benefit to it. Yeah, there could be. There could be. I mean, I guess essentially,

if they're trying to maintain all the elements, you can't be in the house doing

the murders if you didn't first force entry or gain entry into the house

unlawfully. So the burglary fits, but it's sort of—

It's a little bit— if it's the only thing, it's a big sentence. Sure.

On top of 4 life sentences. Yeah. It's like breakfast, I guess.

Yeah. Yeah. Anyway, the What would we

do if Kohberger called and said, would you guys

take on my case? And, you know, the answer is yes,

I probably would. Would I do it for free? No. Great.

I would not do it for free. Would I do it if the court

appointed me to do it? Maybe.

Sometimes that happens. In this circumstance, maybe. I think I heard a number that the

court has paid millions of dollars towards

Kohberger's initial appointed defense team. Yeah.

And so they must have pockets. And so, yeah, I probably would. Yeah, you

probably would. Right. So we're whores for the money.

But look, our job is a job. Yeah. And I get

this. A lot of times people don't quite understand that what we— what I do

and what you do for— like, we get paid to do this. I mean, look,

I'm a worker. If I didn't have to do this, if I were independently wealthy,

I would— I could retire. Right. But I can't. I mean, I do this for

my job. I like it. Sometimes,

sometimes I don't, but in the main, it's what I've chosen to do. So I

do it for money. I mean, it's my job. So assuming we were getting paid,

what would we do? You know, where do you start?

So, so these post-conviction type cases,

they're, they're sort of difficult, because when you get the case,

we obviously weren't on it from the beginning. So, so we didn't do all of

the initial investigating, all the workup that we would do. We're starting over. And so

the initial instinct is that that's what you do. Like, you need to

start investigating it from the beginning. But in the

post-conviction world, a lot of that is not helpful initially.

Because you've got to win the post-conviction first to get it back into a courtroom.

In order to get in a courtroom. So there's like, what do you— where do

you focus your energy? And I would say first things first, maybe even

before I called you. I mean, I would probably call you and say, look, Kohberger's

on the phone here. Yeah. We got a case to work on.

But really the first question in my head is, what are the legal standards and

how's it work? And so, and I know what it is in Ohio. I looked

it up in Idaho. So under Idaho law, withdrawing, he's trying to withdraw his guilty

plea and/or filed a post-conviction, some sort of

petition, whatever the law is out there, but he's trying to withdraw his guilty plea.

And Idaho is a lot like Ohio. It's got a Criminal Rule 33.

And the general rule on withdrawing guilty pleas,

everywhere I've practiced and everywhere I've researched,

is that it's really, really, really difficult to do

after sentencing. It's sort of difficult to do

before sentencing. Right. Courts, the

system hates anything but finality.

So once you have something final, the court does not

want to go backwards. The system does not want— that's why it's so hard to

be exonerated if you're wrongfully convicted. Yeah, absolutely. I mean, the system is set up

to make this process difficult. Yeah. Because once a

decision has been rendered, they don't want to go back. They don't want to go

back. Right. Nobody wants to go. And you don't— the appellate process, a lot of

people don't understand. It's not about getting a new

trial or retrying your case in the appellate courts. It's about, is there a legal

mistake and can you find it? So anyway, back to it.

The Criminal Rule 33 basically says there has to be a

manifest injustice.

This is not— so before sentencing out in Idaho, the

standard is a fair and just reason. After

sentencing, there has to be a manifest injustice. and justice.

And again, these are legal terms that develop with case law, but usually what that

means is it's really, really effing hard to withdraw your guilty plea after you've

been sentenced, and not quite so hard, fair and just, before you've been

sentenced. And this is why the court

spent millions of dollars on the— they don't want to do it again.

So they've spent lots of money making sure that he had a fair defense.

And I think part of what he's up against in this most recent

filing is that part of his plea agreement was that he had to

waive his right to any future appeals. And so

part of what's being argued is, that is this motion to withdraw his plea,

does that fall under an appeals umbrella

or is that different? It's usually different. Usually what happens is

you can waive your right to appeal the sentence

perhaps. So there's a recommended sentence of life without parole,

And I'm guessing that there was language in the document that he

signed that said you can't appeal the sentence. But

ordinarily, those you can't waive your right to appeal things like

manifest injustice, I got 'em right here, an

involuntary or coerced plea, ineffective assistance of

counsel. Right. So you got bad advice.

There might be some, newly discovered evidence that was

not available. Now, that's a dicey term. That is a dicey term. It doesn't mean

that we just now found it. It means that if we'd have looked really hard,

reasonably hard, and done what we needed to do initially, we couldn't have found it.

Right. So a new witness would be a good example. All

right, so he has got to establish this

manifest injustice, a

really high standard. And I think what he is focusing on Is

the counsel, his, the advice he got

from counsel and another bit of evidence, but we'll get to that in a second.

So what we would do is we would, all right, what's the legal standard? We've

got to prove a manifest injustice. And I would probably say to you,

figure the case out and see if there's any angle. Like if we had the

case, can we prove that he didn't do it? And like, what

evidence is out there? What didn't they do? You know, where would you start?

So this is really something that comes down, it's 2 different cases wrapped

up in one at this stage in the game. So you've got the factual

piece, did he do it? And is there any evidence that points

to maybe the contrary? But you've also got

what we were just discussing is the validity of the plea. Did he make this

plea knowingly, voluntarily, and intelligently? And we'd probably

start right there. We'd probably order the transcript. would order the transcript.

We would likely make effort to get communication from prior counsel

to Kohberger. What was the message? Yeah. Was he

sort of strong-armed into the plea? Did he seem

intelligently, voluntarily, and knowingly to be entering into it at

the time? And some of those things are harder to get than others,

right? The communication from the prior counsel and Kohberger,

It's not always just willingly handed over, right? Was it email? Was it in person?

There's so many different— So we would start probably with Kohberger. I mean, it was

sort of implicit. We would go interview Kohberger. Absolutely. And say, what, what do you

know? And what, what are you thinking here? And what did your lawyers

tell you? Because you're making this claim that your lawyers gave you some bad advice,

or there was other stuff you could do. And then we'd have to get a

release from Kohberger

that that we could send to his prior counsel and say, we want the files

and you have permission to talk to us about your representation of

Kohberger. But you're right, a lot of times those lawyers are sort of

saying, and I've been in this spot and I'm usually, I can usually sort of

step out of the role, but you're sort of saying, you know what, dude, I

did everything I possibly could for you. I mean, I gave you a year

of my life. Yeah. And it looks like I made a lot of money, but

my practice shut down for you. I did everything possible. I answered, I did everything.

And lawyers can get some consternation about it. Absolutely. Ego gets in the way a

little bit sometimes. Well, and they don't want to be wrong. Nobody does. Nobody.

There's not an attorney that I've ever met that wants their name in a post-conviction

filing that says that they were ineffective. Yeah, exactly. For reasons A, B, and C,

right? Yep. So, so they're, they're

generally willing to play along to a point.

Yeah. So we interview them, talk to them, get the discovery, and do

a— do our own complete workup. And at the same time, sort of

keeping our options open on what's out there. Yep.

But I always think, and you can comment on this too, I think, but

when I'm doing something like this, you've got the legal standard of

manifest injustice, and we're sort of focusing

on whether his lawyers, Kohberger's lawyers, gave him good

advice prior to the plea. In other words, was his plea knowingly

made and voluntarily made and intelligently made? And if he got bad advice or there's

something that wasn't done, Or he didn't understand something perhaps.

And all that could still be true. All that could be true. But

I sort of feel that if you're really going to get some relief

for a guy like Kohberger, you need some smoking gun evidence, not

necessarily evidence that shows he's not guilty, but something that shows

that you could have gone to trial and done something about it or

had a defense that you gave up. And maybe that wasn't—

But if you just go in with the evidence as we know it, you

say, I just changed my mind, I got bad advice. The standards— interestingly, the standard's

the same, and the other part shouldn't matter. But I think it does. It

does. It does matter for sure. So there's, you know, to

oversimplify it, there's the I was done wrong

sort of argument, right? They didn't help me. I was done dirty here. Yeah,

right. But, and that in itself often falls on deaf

ears. Yeah, whether it should or not, that's not up for me to decide. But

if you have the woe is me plus

a random hair that was found and not tested, or

some other piece of evidence that makes

the court ask the question, well, what if, or maybe,

then that bolsters Excuse me, the, the woe is me argument.

That's really the basis of the argument at this point. Yeah, just because you didn't

like the sentence, just because now you're doing life in prison and you think, well,

hell, I should have just rolled the dice and gone to trial. I don't think

that's going to get you there. And I don't think it's going to get you

there even if you've got sort of a claim that your lawyers didn't give you

all the information. But if you couple that with

there may be something else that could have been done,

now you've got a better chance. And I'm not saying he's got a good chance

at all here, but now you've got a bit— we're sort of looking at it

Mile high. Absolutely. So we would evaluate the

legal standards, which withdrawing a plea, we would get the

transcripts and just see on the face, is there a mistake? Is there something that

was said or shouldn't have been said, should have been said at

the time of the plea and the sentencing hearings that just sort of

would be a knee-jerk, didn't advise him of his rights, he didn't waive this, or

he did something under— but short of those things, now we're getting the documents,

we're getting the file, we're getting the discovery. We're going to interview the lawyers

about the advice they gave Kohberger. We're going to interview Kohberger about the

advice his lawyers gave him and what he understood the whole thing to be.

And then we're going to start working, reviewing the discovery

and working it up. Yeah. At this stage in the game, the investigative

piece would be

sort of— investigating is not the right word, but

analyzing What both law enforcement and the court have done up

to this point, as well as what the defense team up to this point. So

there's not any new investigation at this stage in the game that would happen.

It's really reviewing and analyzing everything that's been done

to see if there's anything you can poke a hole in, something that wasn't done

procedurally correct or thoroughly. Were there any—

was there any misinformation or was information not communicated to Kohberger effectively? Right.

is where we would be at this stage in the game, right? Finding a new

witness or doing interviews is sort of down the

road, but only after everything that's happened up to this point is

understood. Yeah, we got to digest it all. Absolutely. Get the facts, figure out how

they got to Kohberger. So let's go back and let's do a little bit of

that. Like, they wake up the next day, they being the police and

the roommates, and they find this horrific crime scene and they

start investigating and eventually the roads lead to Kohberger and it's

I don't want to say it's good police work, but they found him. Whether he's

the right guy, who knows? But they found a guy. Yeah. Yeah. They ended up

finding Bryan Kohberger. Right. And then the question remains, is he the

right guy? Yeah. And I think they did that in a couple of different ways.

There was a knife sheath left at the scene. Now this is like, look,

murder 101. Don't leave the damn knife sheath at the scene. So it was a

mistake he made. Whoever committed the murder made a mistake. Well, and as you know,

I like to bounce things off the wall. So it's either a mistake that he

made, a careless mistake that Bryan Kohberger made, or it's a

calculated move that someone else made.

Framing Kohberger. Absolutely. So possibly. So it's one— it could be one or

the other, or a combination of, or neither. Like, it could be so. But I

think your point's a good one. We're going to go into this with eyes wide

open, considering all the options. And even though it's already been done,

even though his lawyers already did this, we're going to do it again, just with

a fresh set of eyes. And it turns out the police

extract DNA from the knife, touch DNA. So

epithelial DNA, the experts hate the word touch DNA. They do epithelial

DNA or non-body fluid DNA

on the knife sheath and they get a DNA profile.

I believe they sent that off to a place like ancestry.com.

Not initially. So they sent it to the crime lab, which—

Oh, the crime lab. Yeah. So they did the initial testing.

There was nothing found in CODIS. Bryan Kohberger's DNA was not on file anywhere.

So they were at a dead end with the knife sheath and the initial DNA.

Yep. Eventually, yeah, they— Ancestry.com or one of

those genealogy businesses where

people can send in their DNA, find out what their ancestry is.

And they ended up finding a familial match, meaning

one relative of Kohberger had registered his or her DNA. I think

it was his DNA. Yes, correct. In this

ancestry.com or one of those type places. And from

DNA lineage, they can say, all right, so we know at

least our suspect will have X number of these

markers. And so we'll at least start with that

person and then work backwards. Yep. So they were able to determine that it was

a male. And then through the familial DNA, they were able to determine that it

was likely a son of the person that it matched to, which ended up being

his dad. Yeah. And then they eventually link up

that to Kohberger by doing— so they get, they get the dad, they look at

the house, they monitor the house, and they do something called a trash

pull, which is— Which is exactly what it sounds like. So

they likely set up surveillance on the house. When trash was

brought out to the curb for trash pickup day, they go open the trash can,

they take a bag of trash, and then they take that back to wherever they

took it. and they go through it. And I think in this case they found

a Q-tip. Yes. That they then were able to do

further DNA testing on. And I don't wanna

misspeak if it belonged to Bryan or if it was the dad, but they were

able to further link the DNA through that trash pool and the Q-tip. Yeah, I

think it might've been his dad's DNA on the Q-tip, but that's enough to get

a search warrant to get 'em into the house. Right. And then they start finding

stuff. They get Kohberger's DNA that way. And next thing you know, they got a

match. Interestingly though, just a little aside, this is the kind of stuff that I

hate when I'm defending a case. So you've got the DNA, which is bad enough,

but then you get this, my mentor always said, look, it's always

the coverup that gets you. Mm-hmm. It's like you're dealing with

coverup evidence. And I understand that Kohberger, while his house was under surveillance,

was seen. So the cops are watching him. maneuver around the

house and in and out of the house. And he's always wearing rubber gloves.

And look, there might be reasons for that. I like to barbecue on the weekends,

I put gloves on. And I, you know, I rub my— I do this, I

do all this stuff. And I'm not gonna say rub my

meat. But— I was waiting for it.

I almost said it. I did say it. Anyway,

so possibly he's wearing it for innocent reasons, but it sure looks like a

cover-up. And that is like that, that That nebulous consciousness of

guilt inference that you— it's really difficult to deal with

that at trial. Yeah, it is optically

not ideal to be seen wearing gloves in your own house.

So we would be sitting there in the office with the big whiteboard of all

the evidence, and they were saying, and he's wearing these, he's wearing these gloves. And

we're thinking, how are we going to argue that?

Yeah. What do we— like, how do we get around that problem? Yeah, that would

go in a special column when we're doing our breakdown, right? The good, the bad,

and the just unexplainable. Unexplainable, like a fact we can't change and it's

horrifically bad. Absolutely. And maybe he's got an explanation, who knows? Um,

but they end up finding— they go into the house, they get a search warrant,

they find, or they get a sample of Kohberger's DNA, and lo and behold,

it is a match for the DNA found on the knife sheath

at the same time They're tracking the car.

Yeah. So I believe early on, I think it was a gas station attendant. So

they had video from around the area of the house where the

killings took place. And I think this white car that

turned out to be a Hyundai Elantra, it was identified later on,

was a common theme in a lot of these videos. So whether it was circling

the area, it was just commonly in the area, I'm unsure. But I

believe there was a gas station attendant at a gas station nearby

who was interested in the case and started going through

days' worth of surveillance video. And she

also saw this white— it turned out to be a Hyundai

Elantra— that was on the gas station's

camera at least once, if not numerous times. Yep. And may have been the

best photo or the best video of the car. And

contacted the police or the FBI. They came and they took all the video.

And that played into their identification of the car. Yeah. So apparently there's people at

the FBI whose job it is to identify cars from shapes. I'm

sure AI has a lot to do with this at this point, but, but they

couldn't quite do it. It was blurry footage from Ring cameras and neighborhood

cameras. I don't remember if they had flock cameras, but eventually they get this one

bit of footage that's good enough to identify a white Elantra. And even

within a year range, I think. 2015, I believe. 2015. And lo and

behold, that Kohberger has such a car registered to him, I think, or maybe his

father. Yep. So, so they ended up linking it back to Kohberger,

as you mentioned, either through his dad or through him. I'm not sure who it

was registered to. Um, and then, so they've got

the DNA, the familial DNA, this

mystery white Elantra, which Kohberger happens to be associated with a

similar car. And then I think the icing on the cake that said, yep, Kohberger's

the guy, was the witness's description of the masked man with the bushy

eyebrows. Yeah. So there's no doubt that at some point they came up with a

photo of Kohberger, BMV photo or otherwise, and they said, okay,

DNA, white car, look at these eyebrows. Got to be the guy.

It's got to be the guy. So there's a lot of coincidence, coinkydinks lining up

there. Absolutely. All right. So what do we do with that? Kohberger's hired us and

we're looking at this and trying to figure it out. I mean, I would want

to know what his defense team did

to address this evidence. You know, we are working on a case

right now where the defense team did not hire a

DNA expert to review all the lab work

and the comparison analysis. Yeah, and

what's curiously similar in the case

you just mentioned, as well as the Kohberger case, is the

prosecution's description of the DNA that was found.

So this touch DNA on the on the snap of the knife sheath,

they use terminology like an overwhelmingly amount, an amount that's so,

uh, there's so much that it couldn't be just touch DNA. Like,

it's more. And that was something that we sort of— not sort of— that we

directly encountered in the case that you just mentioned as well. Yeah. And, you know,

too often— and I, I believe that the defense team did have a DNA

expert here, at least I hope they did, um, Often

attorneys doing what we do, defending a case, they sort of take

DNA at its face. Yeah. And there's huge

problems with that. Even if the DNA is a match, like you

just said, it is— juries,

people, lawyers, all of us, we often

misinterpret what DNA really means. Absolutely.

So in the case we're talking about, not Kohberger, but the case

we're talking about, a DNA expert for the state of Ohio gets on the witness

stand and basically says, there's a lot of DNA there, more than I would expect

to find if this were some sort of innocent household transfer from laundry or

cleaning or something like that. She's later trying to walk that

back, but that's what she says at trial. Absolutely. And the prosecutor stands up and

argues that. Well, it turns out we later on

get a DNA expert who says, this is bouncing

on the edge of detection. Yeah. As far as DNA quantity. So a lot of

DNA can mean all sorts of different things. It could be there's a lot of

STR DNA compared to like none. A lot is not a scientific

term. It doesn't have a definition in the context of lay

or a normal everyday person definition. And people will take

from that, oh, there's tons of DNA. And in fact, somebody said, yeah,

there was, or one of the witness, the government's witness actually said, yeah, it matched

12 of I think at that time they were doing 16 alleles.

Yep. And not only did the trial court, but the Court of Appeals later sort

of took that to mean the police found DNA in

12 places on the garment that we were talking about.

Right. Which was totally— and I get it. I understand why there was confusion because

DNA can be confusing. The point here being the police here and

Kohberger's are saying, oh, there's a lot of DNA.

You know, that's a lot of DNA. That could, that could just mean that there's

a good match for Kohberger, but it doesn't necessarily say

anything about how the DNA got there. Well, that's the thing that DNA will never

tell you, regardless of how many times it's tested, how many experts are involved,

is when it got there, how it got there, or why it's there. Right. Right.

So DNA on that snap alone

does not put Bryan Kohberger in that house. It simply puts DNA

on the snap of that sheath. Yeah. And that's attributable to Kohberger. Absolutely. That's what

the experts would say. It's not his DNA. They'd say DNA attributable to Kohberger. Right.

And there'd be some statistical analysis that goes with that. But

yeah, I mean, that's what

that— now, is it good evidence against Kohberger? Yes, it's good evidence against

Kohberger because it's— but it's a data point.

Kohberger's DNA is found on the snap DNA

attributable to Kohberger was found on the snap of a knife sheath left in the

house. Correct. Right. So we know that. I would want to know if the

defense hired experts to sort of unravel the initial

extract, the initial collection, the extraction,

the testing, the comparison, all of it. And

whether— we're working on another case right now. We hired an expert. We're not even

challenging the DNA. Right. And the expert says, well, yeah, it's interesting.

Yeah, I can't fault the the analysis and the comparison. But guess

what? There's like 3 other people here, right? And they just didn't tell you that

in their— in the final report. Important, right?

So it's a sex offense case, and there's, there's 2 other males present.

And look, what does that mean? I don't know what it means. But again, it's

a data point that we would want to know. And we were back

to COBRA, we're just in the gathering information stages Not only

to figure out what the lawyers did, but what we would

do and how that might be different than what they did. And does that give

us any leg to stand on to say maybe, just maybe,

something else should have been done? Yeah. Yeah. And I guess not to jump too

far ahead, because I know we're going to hit each one of these separately, maybe.

But my initial high-level review of the case, there were other

experts that were involved, the defense side. But I didn't

see any direct reference to a DNA expert, which, which seems

like one of the highest priority experts that I would have wanted to get

involved in the matter. Well, that's a good point. And it doesn't

necessarily mean they didn't have one. And this is, this is the one of the

cruxes. Cruxes. This is one of the important things that we have,

that I always stress on attorneys

preparing for cases. You don't have to call a

DNA witness if you consult

with an expert, like a DNA expert, and that expert tells you

something that isn't helpful.

Yeah. I do it all the time. I send out—

and if you do it regularly enough, wherever you are practicing law, you're gonna have

a Rolodex. I can just say, hey doc, I call him doc. I say, hey

doc, can you take a look at this for me? Sometimes it's like a 5-minute

thing. He won't even bill me anymore. Or it's just, you know, $100 for 15

minutes of his time or an hour, whatever he charges me. It's worth it for

me to know, look, I had, I had an expert look at this so I

could validate what I was being— what the prosecutor's telling me and,

and figure out if there's a reason to go further. Or maybe I have him

do a full workup and it's not helpful to me at all. Guess what? Not

only is this accurate, there's more DNA there than they're saying. I'd be like, okay,

I don't have to tell anybody that. I have an absolute confidence and privilege with

my client. That would be a confidence that I don't have to tell. So we

don't know for sure, looking outside in, whether there was an

expert for this stuff. Correct.

So maybe they looked at it and the expert said, I can't help you, sorry.

But we do know that there was an expert. There's a— let's talk about the

other bit of DNA evidence. So what did come about, and I think what Kohberger

is focusing on, is the infamous

Yep. Pasted to the bed of Chapin. I think the

male victim was Ethan Chapin. Apparently there

was a hair pasted to the bed by blood at the scene.

And this is interesting

because that's what Kohberger's focusing on. He says, claims his

defense team failed to inform him about a potentially exculpatory discovery during negotiations.

He highlights the failure to disclose or investigate clumps of unknown hair discovered

in the victim Chapin's hands. I don't know if that's actually true.

Yeah, the characterization of the hair is up

for debate. I believe he in his filing

calls it a clump of hair. There's other documentation

that would indicate that it was a hair.

So I don't know if it's singular or if it's a clump or somewhere in

between. But there was hair that was found at the scene near one of the

deceased individuals that certainly

needs to be examined, should be examined and

proven one way or the other. So, you know, our experts here

at AI would say a hair was found near and underneath the

right hand of victim Ethan Chapin affixed to the bed

frame by dried blood. The hair

consisting of both light and dark brown strands was located beneath where

Chapin's hands was positioned in Xana

Kernodle's bed. I guess he was in his girlfriend's room that night.

Yep. Near the wall. The test results, the FBI examined the hair strands and

explicitly excluded Kohberger as the

source. There's a dispute apparently

over the origin of it. And the state initially,

the initial processing categorized the strands as debris, and it was

not initially run through a full DNA database match. DNA expert

later hired by the defense team reported that the hair was morphologically

consistent with Chapin's own reference hair, suggesting it likely belonged

to the victim himself. I don't know about any of that. Yeah, I don't

know either. I love how they use these $5 words when, when maybe a

10-cent word would do. Morphologically, uh, not common.

Yeah, when I, when I just— I hear this crap in a courtroom, I'd be

like, let me get this straight. Morphologically consistent.

You stare at somebody. What the hell does that mean? Does it mean

it was a hair? Is it like it's a match for Chapin? Right.

So, or is it changing match for Chapin. I don't know, who knows what it

means. But they're saying it's consistent with Chapin's own.

Like, what is the likelihood that that hair was Chapin's and the DNA was

his? And how come they couldn't be sure?

I mean, you would think that they've got Chapin's hair, couldn't they match it

conclusively? Yeah. And there may be more in the background, but I would

go so far as to say that if we enlisted an expert on any case

that we're working, this one or any other case, and they came back with that

terminology, we wouldn't let it live there. We

would need to know exactly what that means. And this is why I implore

people, lawyers doing what we do, particularly in these types of after-the-fact

investigations, don't accept this nonsense

without understanding it. Absolutely. And I don't feel stupid

anymore for not knowing what the heck morphologically consistent

means or doesn't mean. I don't know. I'd be like, all right, what does that

mean? And we would call up Doc and say, Doc, tell us what the hell

is going on here. And can you help me figure this out?

At any rate, you've got these 2 bits of DNA. You've got

the ancestral.com match on the knife sheath, on the button, or the snap rather.

Yep. And then you've got this other DNA. So one matches, and then you got

this other DNA that may or may not match Chapin, one of the

victims. This is something we would need to know

in our post-conviction workup. Absolutely. I would have immediately

get, give me all the records of this DNA testing,

which by the way, you can, I'll let you talk about the

importance of getting these records. Yeah, listen, so most crime labs, and I can

speak specifically to Ohio, when DNA is collected at a crime

scene and sent off for testing, the report that comes back

is generally 1 to 2 pages. Yeah. This is what was tested.

This is what was found. Beyond that 1 or 2 page

report, unless it's specifically requested, you

don't get the other 30 or 40 or 50, however many pages

it is, that contains all of the graphs that break

down the analysis. The gas chromatography, the all of it. Absolutely.

The peaks and the— I mean, the stuff that's way beyond me.

The 1 or 2 page report is essentially This is what the lab received.

This is what was tested. And did we find something or not? Yep.

Done. Yep. The bench notes, as they're referred to in Ohio— I'm not sure

what they call them in Idaho. Probably the same. Something. So

it's the full spectrum of everything you would want to know. And

beyond the bench notes or the full report,

every crime lab analyst that I've ever encountered is willing to get

on a phone call and explain exactly what they did. Yeah, they love doing that.

Right. Or talk me through the process or have a conversation. So

back to your point about relying on the information that's presented, right, is

it's a failure. It's like in every respect of the word, if you

don't ask questions to make sure you understand it. It's the old Jackie Gleason.

Well, look, I'm old. Smokey and the Bandit. You can think about it, but don't

do it. Yeah. Call the witnesses, get the record. Absolutely.

Don't take their word for it. And by the way, it's not just the records

that are the testing, the bench notes, lab notes, the gas chromatography.

The test runs and all the other stuff, but also the lab protocols, because that

can inform huge things. Because they will— there's a

protocol, labs will have a protocol on

above or below a certain threshold. They'll call it

undetectable. Another lab might call that detectable or a match

or, you know, whatever. So, you know, there might be so— It

might be so minimal that they won't even do the Y-STR testing to

find out more about who the male DNA was because it's just such a low

quantity. And then we've done that before and say, look, they don't do it,

but we can do it. And here's what it shows. Yeah. And you're right. Every

lab is a little bit different regarding the threshold that they can detect.

And even if it's detectable, the threshold in which they can test further. And then

the threshold where they're allowed to come into court and say it's a match. Absolutely.

And what I found is independent labs, often have

the more technologically advanced systems in place

that they can, they can really drill down. Right. Most state-funded

labs, they're sort of

limited. Yeah. There's standards that they just apply. Right. Yeah. So we would be doing

this. We would, on both these bits of DNA, I would have an expert

take it apart and I would want to know specifically

So one, we need the evidence and we need to do the independent testing. And

2, I need to know specifically what the defense team did at the time. Absolutely.

Because let's just, let's take it both ways. Let's say the defense team did not

have an expert, like in the case we're talking about in Ohio, and we do

this other workup and it turns out, wait a minute, if they had an expert

here, changes the landscape of everything. Absolutely. Everything. The whole

case is different if the defense just would've picked up the phone,

called an expert, and/or at least obtained the records Changes the landscape of the

case. Now, if the defense did those things,

so they did get an expert, we'd want our expert to review that work to

find out, all right, was that done correctly or could there have been more? Let's

do it. Absolutely. And by the way, we're talking as if there is a budget

to do all this stuff. And I mean that, this stuff gets expensive. It can

get very expensive very quickly. You know, you're talking thousands of dollars on experts

and you haven't even touched legal time or investigative time. But if you're going to

do it, what would we do? This is what we would do. I would analyze

the scientific evidence, figure out if the defense got experts to help

analyze it, whether they disclosed it or not, we could learn privately, and

then do that analysis our way, the way we would want

it done. And it might be the same, but at least we could confirm it.

Yeah, absolutely. So we need to unpack the hair. That's, that's,

that's one of the most significant bits of evidence. And Kohberger

claims that his defense team withheld this exculpatory discovery

from him and coerced him into a broken plea, whatever that means, by

failing to fully investigate the possibility that the unmatched hair belonged to an

alternative suspect. Legal experts, investigators— is

that us? Might be. Might be. Wow. Largely dismissed this appeal as

a long shot, pointing out that the overwhelming separate evidence, including

Kohberger's DNA on the knife sheath, And the strong likelihood that the hair was simply

Chapin's own. Yeah, to all that. It is

every bit of that. So if somebody calls me and said— Kohberger called me and

said, look, I want you to help me withdraw the plea. I have to sleep

at night. And I tell people, yeah, I'll work with

you. Don't give me a penny if you

think that by paying me, you're going to be successful withdrawing your plea.

Right. You're paying me to explore all the options to see

if it's even a possibility. And that's going to cost you lots of money

to even get there. And if you are, if you're looking for a

contingency, if you're looking for me to say, for Scott to say, we'll find it,

I promise, all you got to do is pay me, you're in the wrong house.

We don't do that kind of work. That's exactly right. And I think I said

it the last time we were together, and I say it at least a dozen

times a day when I talk to witnesses in any of the cases I work,

I'm not getting paid to find anybody. make anybody guilty or innocent,

simply looking for what the facts are. And if there's a fact that exists that

wasn't previously discovered, or something that we can prove or

disprove based on the prior investigation, then that's, that's

my goal as an investigator, right? It's not— I'm not going to promise to make

you innocent. And I'm not going to go out of my way to make you

guilty. It is what it is, the facts are going to fall where they fall.

And then we can deal with it. And then we can deal with it. Yep.

All right, there's one more bit of DNA we should talk about. And it's not,

I don't know if it came up in Kohberger's petition. I haven't read it.

But there was a 3-person mixture of unknown DNA

discovered under the fingernails of victim Madison Mogen.

Apparently, the DNA profiles belonging

to 3 individuals were recovered from clippings taken from Mogen's left hand.

The hypothesis is that forensics tested 2 possibilities.

The sample consists of DNA from Mogen herself, Her friend,

Goncalves, and one other unknown unrelated

person, or it consists of Mogen and 2 unrelated

individuals. Initial state lab testing on the sample

was deemed inconclusive, but independent testing conducted by the defense team

explicitly excluded Kohberger from that

specific DNA profile. Yeah, and so it's an

interesting argument. Because if you, if you think about the just the

horrific nature of a stabbing

murder, right? Shootings are bad. Stabbing is

personal. It's up close. There's usually some sort of physical

combative interaction that takes place, right? Defensive

gestures and things like that. It wouldn't be uncommon for a

suspect's DNA or some

something of the nature to be under a fingernail. Yeah. And so these

fingernail clippings are important because if Kohberger was not there,

they had to pick her left hand specifically for some reason or another. Maybe they

did both and didn't find anything on the right. We don't know.

The fact that his DNA is not there is certainly helpful to him. Yeah.

And I remembered one of these victims had

pretty significant defensive wounds and it was Kernodle,

Xana Kernodle. 50 stab wounds, 25 incised wounds,

majority designated as defensive.

So you would— she had blood on the bottom of her feet, indicates she was

upright, mobile, actively moving around and fighting. So she would be one that you would

look for those kind of— Yeah. For DNA.

Mogen suffered 28 stab wounds, primarily concentrated on her face,

neck and head. I think she was asleep, probably. I think so. Yeah.

Defensive evidence noted that she had visible wounds on her hands and forearm— wait a

minute. She had visible wounds on her hands and forearm consistent with attempting to block

the blade. But forensic evidence suggests she and

Goncalves were caught by surprise in bed,

never, likely never made it to their feet. All right. So this is what we're

talking about, right? So, you know, struggling, is it— you could

find unknown DNA under fingernails. It's significant. Absolutely. And I

think it's helpful here to make the point we were talking about. You've got

the amount of DNA found under her fingernails, under Mogen's fingernails,

is such that even the lab's not sure if it's 1 or 2 people,

or 1 or 3 people. Right. 1, 2, or 3 people. They know Mogen's

DNA is there, but the other 2 samples might— they don't even know if it's

2. This is the kind of stuff that detection level

protocol is important. Absolutely. So as on the defense side, we're

going to want to take this apart. And like they did apparently establish

that it wasn't Kohberger. Well, yeah, because after those clippings

and the initial analysis, at some point they came up with Kohberger's DNA standard.

Yep. And they were able to tie the sheath back to him. Yeah. Well, the

same would go for the fingernail clippings. If Kohberger's DNA was present under

her nails or in the nail scrapings, They would— they had the profile to

match it to. So the fact is that his DNA was not

under her fingernails. At least that's what they— and I might even gone further.

I would say, doc, is there a way we can tell whose

DNA is there? Right. And there's a yes, no, maybe, who knows.

I've even done— I've paid— actually, there's a lab you can send, you can

send off the results. But you've got to get like the extra,

extra, extra discovery, you send that off to another lab and they

do statistical analysis on it. So there's so many matches, they can exclude or

include certain people. And a lot of times they'll tell you in advance before you

even pay if it's going to go the direction you want. Right.

So you might do something like that to see if you can get a profile.

You know, we might have done that. No budget. I might have said, see if

we can match that to anybody else in the house. One of the other kids,

another suspect, anything. Yeah. And at the very least, you

could, could have had the Y-STR testing done to determine if it's male or

female. Yep. That answers a lot of questions in and of itself.

Another shifting from the DNA, I think another area that we

would be looking at if Kohberger called us would be the phone records and the

cell phone location evidence. We've done lots of that. We have.

Yeah. And they, so the defense team I know had an expert that looked at

the cell phone records. Uh, and their expert would say that Kohberger was not in

the area at the time of, within the timeframe of— Kohberger's phone was

not. Kohberger's phone. Correct. Thank you for correcting me. Phone was not, he was

actually, the phone was actually on another road and I believe says

traveling in a, uh, maybe southbound direction.

Um, so the, the defense expert not only puts the phone somewhere else, but

says that it was moving. away from the area

at the time in which they have pinpointed as the time the murders took place.

Yeah. So we would go back and read all those reports, look at it. We

have our guy that we rely on. I hate to say exclusively, but almost

exclusively. And I would say, his name is Jim. I would say, Jim, just

give it to me straight. What are we dealing with? And there's lots of

capability beyond just tower analysis. Absolutely. You know, in

our case, I've had the, I've had somebody like Jim, our

expert, actually dig into individual Google accounts,

apps, see where the phone is pinging, what Wi-Fi it's hooked up. I mean, what

the phone is doing. So just that the phone is somewhere

is one thing, but if it's somewhere and it's active, meaning some guy's

looking at porn at the time, there's often

the ability to discern that. Absolutely. It's not

just where the phone was, That it's moving, or it

might be. So you want to, you would, we would want to eliminate

the argument that Kohberger just left it somewhere and then went and did the murder.

Kohberger just turned it off, went and did the murder. And I think they, those,

I think the state did that. Which is the prosecutor's argument, right? Is that he

simply left his phone somewhere else. Yep. So we would want to see some sort

of activity, some sort of movement, anything that says that that phone

was active in some way or another. Yeah. If it's

accessing the internet, maybe he's buying something or surfing something on Amazon, whatever

that phone is doing, we'd want to know because that would show that maybe there's

a user and that theoretically would be Kohberger. And

those, I think those are the big pile or the big categories

of evidence that we're looking for. Yeah. Those are, I think, the main. I

think the vehicle certainly comes into play. I think the defense also had

an expert that reviewed 94 video files that

related to the vehicle specifically in the identification of,

you know, the vehicle. There's, there's never a clear shot of a license plate. There's

never a shot of the driver. So all you have is a white car. You

know, I may have gone down a rabbit hole to

get a subpoena to the Idaho Department of Motor Vehicles and say, how many,

how many white Hyundai Elantras? I think they did that. Did they do that? I

think the government did that. Okay. Are registered in, in the state of Utah.

And now how many are in Moscow— or I'm sorry, Idaho. How many are in

Moscow, Idaho? And sort of create the spreadsheet of

how many other potential suspects there could have been if

only based on the vehicle. Yeah. And we would

want to know, is there anybody else that's got some semblance of a

reason or motive that's got a similar

car. So what happens is the investigators ran queries through

regional Department of Motor Vehicles, the DMV, compiling a massive list

of more than 22,000 white Hyundai Elantras that matched the year criteria

in the Pacific Northwest region. The university databases,

they specifically pulled that because it's a college town, 90 white

Elantras. They found Kohberger's car,

campus police in Washington State. Apparently he went to Washington State University. Yep, correct.

Searched their own internal university database. They looked for white Elantras registered to

students and found 200— found a 2015 model with a

Pennsylvania plate registered to PhD student Bryan Kohberger.

Cell phone forensics later revealed that as soon as the police publicly announced they were

looking for a white Elantra, Kohberger himself— this is

Google injecting this— panicked and downloaded a PDF list of

registered Elantras from the university's network to see if his own name

was easily searchable. That's the kind of cover-up crap that kills you.

Absolutely. And it could be that, well, that's interesting. I have an

Elantra. I wonder if they're going to call me. I mean, I could see, you

could make an argument, but again, a lot of dots connecting. Yeah. And you know,

some of this, back to the rubber gloves and him sort of pulling up this

database file to see if his name was on there or searchable. you

know, from all accounts that I've researched and just sort of seeing his

mannerisms, sort of an odd guy. Yeah, really. And so, so while

some of this, the gloves and this database search on

the surface really stick out as really, really

strange to, to you and I, this, this may be

what he was, who he was. Yeah. And so

You know, again, we, we don't judge a client based on their actions. It's

not our job to judge them, but, but to look at the

totality of, of all of the facts that are available. So these are things that

we would certainly ask him about. We would talk to him about. Right. And here's

what these are. I would want to know questions. Apparently he did a stripping and

disassembling of his vehicle after the murders. Kohberger thoroughly detailed his white

Hyundai Elantra. Summaries by the prosecutor

revealed that the car was stripped so clean Some of these, we got to be

careful with the words. The car was so clean of forensic evidence that it was,

quote, essentially disassembled inside to ensure no victim blood or DNA.

Now, those are conclusions, you know, so he detailed the crap out of his car,

I think is what it is. And where Google is adding some stuff.

They never found any bloody clothes or a murder weapon. That was a Ka-Bar knife.

And I believe they actually did a search for people who purchased that knife. And

he had actually purchased one on Amazon. Near

the time of the murders. Well, that's true because state filings showed

Kohberger repeatedly tracked the shipping progress of the knife and

sharpener before the murders. 2 days after the killings, realizing he had— see,

they're injecting this. Injecting. 2 days after the killing, I'll leave that part out. He

attempted to completely delete his Amazon account activity to hide the—

I'm not even gonna say why he did it. Cell phone manipulation.

During the window of the murders, Kohberger turned off his phone Or placed

it in airplane mode. This was an intent— people are claiming, of

course, that was an effort to hide where he was.

He wore surgical gloves in the weeks following the murders while living at his parents'

house in Pennsylvania. FBI see him wearing surgical gloves inside the

grocery store and around the property to prevent, for whatever reason,

separating garbage. He routinely walked out into the middle of— in the middle of

the night to place his personal trash into neighbors' garbage

bins. Again, these are the kind of cover-up things that—

Absolutely. Really sort of hurt. Absolutely. Really sort of hurt. And

I think honestly, Steve, what we're doing right now is, is, is a common thing,

right? Is we're sort of blurring the lines between what

Kohberger has to do now, the obstacles that he has to overcome,

versus working the case from the beginning. Yeah.

Right. And it's very easy to do. Yeah. You have to do both because

if we find something, find an angle, find a hole,

find a gap, find a seam we can run through, just a little one maybe,

and the defense team missed it, that's a possible angle

Kohberger could use to withdraw his plea. So look, it

sounds— my big picture here is I

don't think there's a whole lot of chance of Kohberger successfully withdrawing this

plea. I think at the end of the day,

Kohberger, he just

doesn't have it. It sounds like the defense team had DNA experts, they had cell

phone experts, they had car experts. Yeah. They had various things.

And the law on ineffective assistance of counsel is very

clear that

decisions attorneys make after

an investigation are almost always

unchallengeable. Right. But if you don't conduct a

reasonable investigation and skip to conclusions, so for

instance, I don't need a DNA expert because I'm just going in a different direction.

I'll rely on the state's expert. I'll rely on the state's. I hear that all

the time. I'll just cross-examine their experts. Trust me, I'm F. Lee Bailey.

Decisions, critical strategic decisions, I want

to— well, critical decisions absent an

investigation to support the decision, it's almost always the opposite. Yep.

They are never— so under— there's a case, there's a seminal case called Strickland versus

Washington that says under the 6th Amendment, we all have a right to effective

assistance of counsel. It means we have to objectively perform in a way that's

consistent with the normal standards in my field of

practice. And there's got to be prejudice as a result. So

you've got to do— you've got to be reasonably prudent. And if

you screw up, we have to prove prejudice, meaning there's sufficient

evidence to undermine confidence in the verdict.

Not necessarily a but-for change the outcome, but come close.

Yep. And if you don't, if you have one but not the other, you can't—

you don't succeed on ineffective. And what we're looking for from the outset is

something that the attorney did or didn't do. And the problem Kohberger

is going to bump into is it sounds like his lawyers did quite a bit.

It sounds like they enlisted experts. I don't know if it was all the right

experts. I don't know if it was just one for each field. Right. And the

one case that we mentioned that we've worked on, we had 3 DNA experts.

So one isn't always the right answer, but neither is 3. Yeah. So, so really,

it will come down to, did they explore all avenues?

Did they enlist all of the people that should have been enlisted to enlighten them

to the fullest extent that they can be, to understand the evidence that's being presented,

and then formulate reasonable arguments or concede that it's

a not arguable fact? And by the way, we

should note in the other case we're talking about, we should do an exposé on

that one one time. But the other case we're talking about, one of the lawyers'

explanations was, well, look, I had a medical expert and that was my strategy.

Look, just because you have one expert doesn't

mean you don't need any other experts. Right. And just

because you don't have one expert doesn't mean that you do need other experts. The

point is you need an expert when you need it. Exactly. And

here we have scientific DNA evidence in 3 different forms.

We have these car identification experts that the government has.

There is Probably some forensic evidence collection. I've

actually hired forensic crime scene guys. Absolutely. To review

what's gone on. There's experts in all these different fields, cell phone

experts. And I sort of have this theory that if the government's got one,

then I deserve one too. Absolutely. I want to figure out if what they're telling

me is accurate, particularly in something like DNA. But at the end of the day,

it sounds like they did. It sounds like the lawyers did in fact have these

types of experts. Now, let's assume— one

last question, we can lay this thing to rest. So we've just represented Kohberger all

the way through. One of the topics we should talk about is, what do you

win? So if Kohberger withdraws his plea, he's back in the

suit. Yeah, I think this is one of those circumstances where he should be

careful what he wishes for. Winning this plea

withdrawal doesn't make the case go away. And I

think he's aware of that because it was in his filing. Yeah. And welcomes them

to bring the death penalty back to the table. Yeah. Just give me a

trial and the death penalty can be on the table. That's fine.

The question then becomes, is the case winnable? Right? Does

he exchange 4 life sentences, which is essentially the death

penalty, for the rest of his life on

death row where he's currently not? Yeah. You know, I don't know what the housing

differences are. I don't know what the environment is, what the differences are.

But what's he, what's he trying to win? Yeah, what's to be gained by this

mess? A new trial and a new trial. So a lot of times people want

to withdraw their plea because they say, I just want to withdraw my plea, thinking

somehow they're weighing that against winning. Exactly. As opposed to

weighing that against losing. And sometimes, a lot of times, like here,

pleas are based on negotiated results and outcomes. And if you pled

guilty to something, it's almost always better than if you go to trial and lose

because you're giving something up and the prosecutor's giving something up. And

this is one of these things where be careful what you wish for, my friend,

because you could end up on death row. Now, he may not care. I mean,

he could probably kill himself anyway if that's what he wanted to do. But it

may be that he's just bored, that he's like, man, I wish I would've— I

think he's been in for a year maybe at this point. And

so Yeah, I don't know if this is a scheme,

if you will, to just change his surroundings. Maybe, right? If he

wins, he could certainly change his surroundings, maybe for the better,

likely for the worse. At least in the short term. Yeah. Or if he

thinks that there's actually a chance and he's truly arguing

his innocence. And maybe he is. Maybe he is. So maybe somebody was with him.

Maybe there's evidence he could supply. We're not hearing anything about that. But But, you

know, who knows? But look, the, the one last

sort of offshoot of the plea discussion is that I noted that a

lot of— there's some of the family members of the victims were

unhappy with the plea resolution.

This is just one of those things that happens, right? So they may be saying,

let him withdraw the damn plea, because we want to fry the guy. Yeah, one

of the families, and I don't know which one it was. Actually

made a statement when this filing was made. And they're encouraging

the state to let him withdraw because they are looking forward to a trial. They

say the death penalty is what he should have gotten to begin with. This deal

never should have happened. We're not scared of a trial. Bring it on. Yeah,

essentially. And look, I get it.

Yeah. So

in the Netflix thing I watched, a documentary I watched, there was a lot of

ill will. You can almost feel the ill will. And by the way, one of

the things that we didn't talk about is that apparently the university took down the

house, or the city took down the house where this happened. Very quickly.

Yeah. It's a bad look. It is. I get it, but it's a

bad look. But the family wasn't on board. Now, you know,

there's— I get— I've seen this both ways. You know, the prosecutor's thinking,

look, I don't have to go through this 8-week monster

death penalty trial, it's going to cost us X amount of dollars, all

these resources, on some level, as small as it

may be, risk a loss. Yeah. And all we're gaining is

20 years on death row as opposed to 50 years in prison or whatever it

would be. We're just going to do it. I don't know what kind of communication

the prosecutor had with the family victims or the family of the victims.

Presumably some, presumably maybe not. But that's going to be it. I'm sure the

prosecutor, in my experience anyway, I've never been a prosecutor, probably never will,

but prosecutors will consult with the family about this.

My guess is the state will fight this because the system loves finality.

Absolutely. And there might be a family member saying, bring it on,

let's fry this MFer. Yeah, I think leading up to the plea

deal when it was sort of in the works before it was finalized, one of

the families encouraged the community, other families,

everybody they knew to call the judge's chambers or to call the courthouse and

flood them with calls opposing this plea deal

being put into place. So there's at least one of the families that was adamantly

opposed, continues to be adamantly opposed, and welcomes an actual trial.

The state, I'm sure, has other, other intentions. So predictions of the outcome of this?

I think I think he loses. I

think this filing doesn't get him anywhere and he stays where he is.

I think the only other outcome is if there were some

gamesmanship on the state side. We didn't talk about that, but we should. They said,

listen, we'll, we'll concede to this and we'll let him reverse his plea and

we're just going to fry him. Or maybe the state withheld some damning piece of

evidence. Maybe, maybe there's a Brady violation or something where the state withheld evidence that

was exculpatory. That's one of the things we would look at. Yeah, absolutely. Yeah. So

yeah, absent some smoking gun here, and doesn't have to actually

prove that he's actually innocent, although you have to get really close. Or

that the lawyers just repeatedly misled or

lied, and we could prove that. Or that the government withheld evidence, or

one of these people, we just flat out, you can prove that some of these

state experts were lying or fudged it. Every now and then you see a lab

quote, indicted or criticized or closed down for misconduct.

Absent something like that, I'm sorry, Mr.

Kohberger, I think you— I don't think you're going to be successful here. Good luck

trying. I'm not representing Kohberger, but that's

what we would do. Yeah, absolutely. So stay tuned. We're going to be— there'll be

lots more of That's What We Would Do as we keep getting these bigger cases.

We'll sort of share how the sausage is made from our, at least our thing.

Are we the best? I don't know, but at least this is how we do

it. Absolutely. All right, Lawyer Talk, Off the Record, on the air with Scott Shepherd,

Justified Investigations.