Mega Edition: Bryan Kohberger An The Bushy Eye Brow Motions (9/10/26)

0:00What's up everyone and welcome back to the program. In this episode we're spending right back up to Moscow and we're going to take a look at the order on defendant's motion in Lemanay witness identification by bushy eyebrows. Case number CR01-24-31665 State of Idaho plaintiff, first Brian C. Coburger, the defendant. One, introduction. DM, a roommate of the victims in this case, was the sole eyewitness to the intruder, believed to have carried out the homicides at 1122 King Road. During her interviews with law enforcement and at a preliminary hearing in this matter, DM described the intruder as having bushy eyebrows. Defendant moves in Lemanay to exclude any evidence at trial referencing bushy eyebrows, arguing DM's description is unreliable and therefore irrelevant and or barred by IRE-403. The state responds that DM's description is based on her personal knowledge,

1:00is relevant and there is no basis for an exclusion. Or a argument on the motion was held on April 9th, 2025, after which the court took the matter under advisement. The court concludes that DM's description of the suspect's eyebrows is admissible, to standard. The question of whether evidence is relevant one of law, while the decision to admit relevant evidence is discretionary. State verse shuts 143 Idaho 200-202. 2006, on discretionary matters, the trial court must one correctly perceive the issue as one of discretion, to act within the outer boundaries of its discretion, three, act consistently with the legal standards applicable to the specific choices available to it, and four, reach its decision by the exercise of reason. Lomburg verse my fun life, Idaho 856 2018 Three facts on November 13th, 2022, sometime before 4.19am, DM observed a person inside her

2:04residence, which she shared with her four roommates at 11.22 King Road. DM placed several phone calls and sent several text messages to her roommates, ID, the only roommate who responded was BF, who resided in a downstairs bedroom. They had two short phone conversations and exchange texts within those phone calls and text messages, DM relayed to BF that she saw a person in the residence wearing black and he had on a ski mask that covered his forehead and his mouth. That same day at approximately 11.56am, a 911 call was placed from 11.22 King Road for a reported unresponsive female. Moscow Police Department responded to the scene and officer Mitch Nunez took a statement from DM and she told officer Nunez she saw a male not insanely tall wearing all black and a mask that was just covering his forehead and mouth. Later DM repeated the description, he was a little bit taller than me, I couldn't really see much of him, and I'm almost positive that

3:05he was wearing a full black outfit and he had this mask that was just over his forehead and over his mouth. DM gave the description a third time, repeating he had a mask, he was an inch or two taller than her, he was a basketball player kind of skinny and the voice she did not recognize, ID at 31.8.32.3. DM also told Detective Nunez she was kind of in and out of it because I was so scared and I was really I was really tired. She did not mention anything during the interview about the intruder's eyebrows. At approximately 147, that same day DM was interviewed at the Moscow Police Department by Detective Lawrence Mallory. During this interview DM reported that she saw a white male she did not know, maybe my height a few inch taller, skinny, athletic built, wearing all black, wearing this mask that covers just his forehead and here. Regarding his height she reported on 510 so he's probably around 6 foot. She responded, no, when asked if she saw what color his eyebrows were

4:07and added, I don't remember what his eyes look like either, but she saw his eyes and he was definitely a white guy. She again mentioned she was in and out of it because she was tired and explained everything was kind of blurry. I like don't fully remember it I would say. Four days later DM was interviewed by Idaho State Police, Detective Victoria Gooch and MPD Captain Dustin Blaker. DM gave a detailed recounting of what she did on Saturday November 12th, 2022 until when she went to bed at approximately 3.20am on Sunday November 13th, 2022. She stated that sometime between 4am and 4.20am, she woke up and heard a male's voice, she did not recognize say it's okay, I'm going to help you. She said that at the time she was out of it and probably still tipsy and I believe I was also very drunk. DM opened the door and saw someone explaining and I don't know how I knew it was someone because

5:08it from my mind, it's like I was almost wearing these like blurry glasses, like it's fuzzy and cloudy, but it was like a figure of someone wearing all black and it was like they had a ski mask that was covering their forehead and their chin and mouth, but I could see all I remember was seeing their eyebrows and I don't I don't remember what their eyes look like, but I remember their eyebrows, I don't remember the color their eyebrows were, I just remember like bushy eyebrows, that's all I could think about. DM described the white male as a skinny tone that basketball kind of type, ID at 76, 2 and 3, DM stated she was 5 foot 10, so she thought the male was around 5 10 and then 6 foot somewhere around there, ID at 76, 8 through 10, DM stated the male was approximately 3 feet from her when she was standing but added that could be off because I obviously probably was still a little bit drunk, I just woke up and I don't remember fully, she reiterated,

6:09I know that he looked at me because I could see his eyebrows, I think I think just I think I just saw one eyebrow, I don't know why or how, DM then recounted calling and texting her roommate BF that there was someone in the house wearing all black and a ski mask, DM conveyed to the interviewers that she did not know for sure if it fully happened, I don't know if my mind's like making up stuff, it just doesn't make sense to me and I don't know how to fully explain it, ID at 92, 10 through 18, Detective Gooch explained to DM that the most important thing was to tell only the things she knew were true and DM agreed, DM also agreed that she was traumatized and it could affect her memory, Detective Gooch also asked DM if she suffered from anxiety, DM responded that she did and added that she had a lot of lucid dreams of being like kidnapped or chased, she also indicated she would watch criminal minds and fall asleep to crime podcasts, Detective Gooch and Captain Blaker then sought to reconfirm the facts from DM's memory, DM reiterated

7:12that she saw a male figure in the hallway, a approximately three feet from her, he was holding something, he was wearing all black clothes, his forehead was covered, he was wearing a mask, she remembered his eyebrows, ID at 96, 18 through 24, 97, 3, 105, 18 through 25, Captain Blaker asked what was covering his face and DM stated, I don't know, we're looking ski mask, it wasn't like the regular ski mask with like eyes and you know because I saw his eyebrows and I could I think see his nose and like part of his face but I don't know, ID at 105, 22, 1061, she stated that she cannot see the male's mouth and do not remember if she saw his nose, but confirmed I know I saw his eyebrows and I don't remember his eyes, I just feel like I can see the eyebrows, but I mean that could be it, I mean that would make sense why the forehead was covered and this part of his face was covered, the investigators inquired if DM could provide a composite for an artist but she said she could not, again she reiterated she did not remember

8:15what his eyes looked like, I don't remember what his nose looked like, I just remember eyebrows, I don't know exactly what the eyebrows look like at all really, I just remember thinking like eyebrows, yeah, bushy but that's all, like I don't remember the shape, I don't remember like the color, I just remember like bushy eyebrows, that's the only thing that I can remember, on November 13th and November 19th of 2022, law enforcement took photos of DM's bedroom, on the wall there were many magazines and photos and drawn pictures pinned to corkboards, the drawings were of human faces with an emphasis on eyes and eyebrows, some of the eyebrows are heavy, defendants exhibit 4 and 5, on December 1st, 2022, 18 days after her first interview, DM was interviewed by forensic interviewer Aaron Williamson, DM gave a detailed accounting of her day on Saturday, November 12th, 2022, until she went to bed on Sunday, November 13th, 2022, defendants exhibit 7 pages 19 and 20,

9:18DM reported that she heard a man's voice and it wasn't Ethan's, it was like it's okay, I'm going to help you, defense exhibit 7 at 32 9 through 15, DM stated that she saw all black figure about my height, maybe a few inches taller, skinny build, wearing a mask, DM again stated I saw like, I don't remember if it was just like one eyebrow or two but it was just like this bushy eyebrow, she described texting BF about a guy in all black and described the ski mask stating I couldn't see any of his hair but I remember just like seeing like it was like almost rectangular, like not the circle ones, it was just rectangular because I remember seeing like just like I don't know how to explain it, just seeing like this maybe I'd be able to see like across but I don't remember seeing his eyes but I feel like his eyes were there, I could just see like an eyebrow, I feel like that's how I know he saw me because I could see his eyebrow, like if I can see his eyebrow he can see me, she reiterated from what I remember, I think he was like just like walking past that little

10:25wall and going towards the kitchen and I don't know like I just remember seeing an eyebrow, I don't know why I just seen one, I was just like one bushy eyebrow, I don't remember the color, like the full shape, I just remember them being bushy, DM also drew a mask for the interviewer, while drawing she gave a consistent description of the mask and noted the eyebrows, I don't remember if I saw one or two, like it was it was weird, DM explained that she had scary lucid dreams and she would always know she was dreaming, when she saw the intruder however she did not fully understand whether it was a dream or not, she also indicated that when she first saw the intruder she thought he might be a fireman, alright we're gonna wrap up the first episode right here and in the next episode we're gonna pick up where we left off and that's DM also drew the mask for the interviewer, all of the information that goes with this episode can be found in the description box, what's up everyone and welcome back to the program, in this episode we're picking up where we

11:28left off with Judge Hitler's order in regards to bushy eyebrows, on December 29th 2022, defendant was arrested in all Brightsville, Pennsylvania the following day on December 30th 2022, 47 days after her first interview, DM was interviewed by Idaho State Police detectives, they asked DM whether she had seen a picture of the defendant, she stated that she had seen the mugshot but she had no clue whether defendant was the person that she saw in her house, she explained from what I remember, I just remember seeing this figure that was like not fat, obviously but more of like the skinnier tone build and some mask on, I don't know what the mask exactly was but when I thought about it it was like covering here and here, I don't know if it was covering his mouth, his nose or below his nose and mouth, I just remember knowing that he was white but I didn't know how he was white, I just knew he was and this knowing there's like I knew he had to look at me because of the bushy eyebrow, that's all I remember but I have no idea what he

12:31looked like, I don't like when I looked at his picture, nothing came back to me at all, so that like, I don't know, I feel like if I saw that, my mind would be like oh yeah that's him but it just, I don't remember at all, when asked whether she told BF the male at a big nose, DM stated, all I remember but I don't remember big nose at all, like at all, that's like all I remember, is like some bushy eyebrows in all black and some sort of mask but it wasn't like one of those circle ski masks, that's all I remember, on May 15th 2023 DM testified at the grand jury proceeding for the above titled matter regarding November 13th 2022 DM testified, she woke up at around 4 a.m. to noises, she testified, she opened her door and heard a man's voice say it's okay, I'm going to help you, and I didn't know who the man's voice was, DM testified, she opened her door again and saw a figure in all black, which I believe was a person, I knew the person was white, I don't know how, but I just knew it, knew it was male, I think I knew that because of the voice,

13:36the person was around my height or a few inches taller, and then I knew his build wasn't like scrawny and he wasn't fat, so I figured it was like the basketball tone to lean build, regarding what the person was wearing, DM testified, there was like from what I think I remember, it was like all black, almost like a ski mask but not, it just like covered the head, and then maybe up to the mouth, maybe more, I can't remember if it covered just the chin, the mouth or the nose are lower, she said his clothing was all black, well the thing I can really remember was something about bushy eyebrows, I don't remember seeing anything else, just something about a bushy eyebrow, for analysis, a, DM's testimony satisfies IRA 601 and IRA 602, defendant first suggests that DM is not competent and or lacks personal knowledge to testify about bushy eyebrows because her testimony is not reliable under the mason vigors balancing test, a test that is applied when determining whether witness identification is reliable

14:39or whether it was the product of police suggestiveness, wordmen vs. state 161 Idaho 2017, defendant points out that DM's opportunity to see the intruder in her home was seconds at most, her attention was influenced by sleeping as an alcohol, and she constantly questioned what she saw, defendant argues DM's description of the physical characteristics of the intruder were general in nature and could fit millions of individuals, defendant also notes that while he does not have bushy eyebrows, the artwork on her wall displays individuals with prominent eyebrows. As the state notes however, the mason vigors test does not apply here because DM did not make an identification of defendant and her descriptions were not the result of the use of law enforcement identification techniques, in fact the sole instance when DM was asked to identify defendant was when she was shown his mugshot after his arrest. She responded she had no clue whether it was the person that she saw, not to be deterred, defendant, alternatively argues that the court should

15:44find DM unreliable based on scientific rules that explain the fragility and inaccuracy of memory. The court finds no basis to do so, as a general matter every person is competent to be a witness IRE-601, in competency which is determined by the court, applies to persons whom the court finds are incapable of receiving just impressions of the facts about which they are examined or relating them accurately. IRE-601A. Additionally a witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. DM was a direct witness in this case. As the factual recitation sets forth in detail, DM's account of what she saw and physical characteristics of the intruder were remarkably consistent throughout all five interviews and her grand jury testimony. While she did not mention his eyebrows in her initial interview, she thereafter identified the bushy eyebrows on multiple occasions as something

16:44that firmly stuck out in her mind. Although she might have been intoxicated or tired or questioned or memory, the consistency of her descriptions suggests a high degree of reliability. While defendant may cross examine DM about his concerns with her memory, his challenges to her competency and personal knowledge as a basis for exclusion are unfounded. B, there's no basis under IRE-403 to exclude DM's testimony. Defended next asserts DM's testimony about eyebrows must be excluded under IRE-403, which permits exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury or by considerations of undue delay, or waste of time or needless presentation of cumulative evidence, IRE-403. Specifically, defendant points out DM could not provide enough details about the intruder to provide a description to a composite artist.

17:45He asserts that to allow her to testify about bushy eyebrows would confuse the issues and result in unfair prejudice because of the danger the jury will believe he is guilty due to his eyebrows. However, DM's testimony about bushy eyebrows is highly relevant in the case. DM is the only witness in the intruder responsible for the homicides. It's the jury's task to determine whether the defendant is that person. Further, there's nothing confusing about her testimony, her descriptions of the bushy eyebrows have been consistent and clear, while she could not provide enough details for a composite sketch, it's unsurprising given her observation that the intruder was wearing a mask on his face. Moreover, while this description might or might not implicate defendant, it will not result in unfair prejudice. Unfair prejudice arises only when the evidence has an undue tendency to suggest a decision on an improper basis and appeals to the jury's sympathies or rouses their sense of horror, provokes their instincts to punish or otherwise causes the jury

18:48to base his decision on something other than establish propositions in the case. State verse Rousseau 157 Idaho 299309 2014 DM's description of the intruder having bushy eyebrows will not reasonably compel a jury to find defendant guilty simply because he may have similar eyebrows. There's a large gulf between a finding that a witness is not competent to testify about what they personally witnessed and simply allowing impeachment by vigorous cross-examination. This is a matter for cross-examination by defendant and concerns with DM's ability to perceive and remember what she claims she saw may be tested in that manner. The Mason vigorous test looks at one the opportunity of the witness to view the criminal at the time of the crime, two the witness degree of attention, three the accuracy of the witness prior description of the criminal, four the level of certainty demonstrated at the identification and five the length between the crime and the identification word him in 161 Idaho at 718 390 p.3d at 444.

19:55Even if the court were inclined to consider defendant's arguments about why science supports a finding of unreliability the application of scientific principles to DM's reported memory for purposes of determining reliability is squarely within the realm of an expert. All defendant has presented to the court however, citations to scientific articles this is not an appropriate substitute for expert testimony. The order based on the foregoing defendant's motion in Lemanay witness identification by bushy eyebrows is denied. This document was dated April 16th of 2025 and it was signed by Judge Hibbler. All of the information that goes with this episode can be found in the description box. What's up everyone and welcome back to the program. In this episode we're getting right back to the court documents up in Moscow and we're going to be taking a look at Brian co-burgers reply to the state's response to Brian co-burgers motion in Lemanay number seven witness identification by bushy eyebrows case number cr01-24-31665

21:06state of Idaho plaintiff verse Brian C co-burger the defendant comes now Brian C co-burger by and through his attorneys of record and hereby replies to the state's response to defendants motion in Lemanay witness identification by bushy eyebrows filed on March 17th 2025 the argument. Mistake and identifications have been one of the leading causes of wrongful convictions in the United States for decades and they still are. When a witness wears under oath to the identification of the person on trial the impact cannot be understated. In this case if DM is allowed to say that she saw bushy eyebrows it will not be different than her appointing to Mr. co-burger and saying that's him. To make matters even more prejudicial the state wants to admit into evidence a picture of Mr. co-burger as if DM identified him in the photo. This is how wrongful convictions occur. The photo of Mr. co-burger that the state attached to its response is not relevant and is overly

22:09prejudicial. This is akin to the state trying to identify Mr. co-burger for DM or create its own corroboration for DM previously said that she cannot identify him. Motion in Lemanay exhibit nine lake interview there are literally millions of people in the world who might be described as having eyebrows. The term itself is subjective and DM has a fascination with drawing eyes and eyebrows. The stake intends that DM statements are independently reliable as law enforcement did not employ a witness identification procedure. Mr. co-burger is not suggesting that DM's descriptive words were developed in conjunction with a lineup. DM was interviewed five times law enforcement was involved with each interview. According to the state DM's multiple descriptions of the intruder were based on our own recollection and were not the result of suggestive identification procedures employed by law enforcement. Mr. co-burger points the court to the following instances which are

23:14suggestive. One in the second interview on November 13th 2022 DM was interviewed at the police department by detective Maori who inquired about facial features and asked DM if she knew a color the intruder's eyebrows were. Motion in Lemanay exhibit three Maori interview transcript. Detective Maori is a person who mentioned eyebrows not DM. Two in the third interview on November 17th 2022 DM was interviewed by detective Gooch who asked DM if she knew what a baklava was and showed her a picture. Motion in Lemanay exhibit six. In the fourth interview on December 1st 2022 DM drew the mask for the interviewer. State's response page six motion in Lemanay exhibit seven Williamson interview transcript that looks remarkably similar to obalaclava. The state argues that DM is reliable witness should the court apply five factor Manson Bigger's balancing test to evaluate

24:16witness reliability. It should not ignore either the limited amount of time that DM had to view the intruder or her state of intoxication. Motion in Lemanay pages six and seven. A witness is less likely to provide an accurate identification from a fleeting view and a witness's attention is likely compromised when they are intoxicated. State verse El Marez 154 Idaho 2013 DM saw the intruder briefly in a dark hallway in her own words she was probably very drunk and tired when she saw the intruder at 4am. Motion in Lemanay seven page six and seven. Should the court apply relevance test and weigh the reliability of DM the exclusion of the term bushy eyebrows as appropriate for all the reasons explained in the Manson Bigger's test and intoxication is referenced in El Marez. If the court decides not to rely upon Manson Bigger's and El Marez, it should consider the scientific studies that explain the fragility and inaccuracy of memory.

25:20This analysis, which is applicable to the court's decision to exclude or limit this evidence, is the fact that scientific studies conducted on memory show that there are several steps to creating and retaining memory and influences such as amount of time of exposure to view, the amount of stress involved, level of intoxication, and post-event influences among others should be taken into consideration when determining reliability. The science of memory is laid out below. The first phase is the development of memory is the acquisition or encoding phase. The acquisition of memories depends on perception and all of the factors that affect perception such as distance, lighting, and duration of exposure, because perception also depends on several individualized factors, the encoding phase of developing memories is affected by many of those Sam criteria. The contents of short-term memory are limited and the highly subject to interference by subsequent sensory, cognitive, emotional, or behavioral events. The contents can be also biased

26:27by prior knowledge, expectations, or beliefs, resulting in a distorted representation of experience. Short-term memories of events that happened early in a witness proceeding may simply be forgotten with the passage of time, or a badly compromised by attention directed to subsequent emotional events or cognitive and behavioral demands, e.g. anxiety, fear, the need to escape. In such cases, the compromised information may never be consolidated fully into long-term storage, or that storage may contain distorted content. At the same time, the quality of encoding of stimuli that are attended is commonly enhanced by highly emotional content. Sensory overload has particular relevance to the encoding phase. It can lead to so much incomplete sensory acquisition that confabulation, the creation, or substitution of false memories through later suggestion can occur to fill in the many gaps that exist.

27:29In this case, the time period of observation was seconds at most, with limited lighting, under stress, and express fear, and with a witness who has repeatedly expressed she is unsure. Motion in Lemanay? Seven pages four and six. She was in frozen shock phase, she did not know if it's a dream, and there is a time delay in her reporting what she saw. The next part of the memory process is the retention or storage phase. During this phase, the brain stabilizes and consolidates memories for storage until they are called upon for retrieval. The amount of data being encoded and retained is one factor that affects this phase. The greater the amount of data presented, especially in shorter periods of time, the less that will be retained. A second key factor in the retention interval, how much time passes between storage of the memory and retrieval of it. A third factor has the most potentially negative effect on the memory retention. The post event misinformation effect. Exposure to subsequent information affects how earlier

28:33memories are retained and retrieved. This means that an eyewitness exposed a post event misinformation can accept erroneous or even non-existent details as if they were true. In this case, not only was there an eight-hour delay in reporting, prior to the first law enforcement interview, DM was allowed to mingle with BF and many other friends. Law enforcement did not separate all of the friends who came to 1122 King Road prior to interviews and no warning was given to not discuss the facts and no effort was made to limit such a discussion. Many of the friends who were at 1122 King Road, when police arrived, also stayed in the same hotel room the night of November 13, 2022. There was also extensive media coverage. Post event misinformation must be considered as a factor on the accuracy of DM's memory retention. Finally, during the retrieval phase, the brain searches for the pertinent information, retrieves it and communicates it. This process occurs when eyewitnesses describe what they observed to police,

29:38when they participate in identification confrontations and when they testify in court. Several factors affect retrieval. Time is a very important factor in memory retrieval, as a rule, the longer the period between acquisition, retention, and retrieval, the more difficult the we have retrieving the memory, a phenomenon referred to as memory decay. By the time DM testifies almost three years will have passed after law enforcement interviews where her recitation of the events of November 13, 2022 changes, and after extensive media coverage about this case, which almost always includes pictures of Mr. Coburger. Memory retrieval in these circumstances weighs against reliability. Conclusion. For the reasons addressed above, and Mr. Coburger's initial brief, the court should grant Mr. Coburger's motion in Lemanay to exclude DM from using the words Bushy eyebrows to identify the intruder that she saw and exclude DM from identifying Mr. Coburger

30:43based on Bushy eyebrows. The court must additionally prohibit the state from acting as an identifying witness by admitting a picture of Mr. Coburger in evidence in support of DM's testimony, or for any other reason. This document was dated on March 24, 2025, and it was signed by Alisa Massoth. All of the information that goes with this episode can be found in the description box. What's up everyone and welcome back to the program. After Brian Coburger's marathon court appearance last week, Judge Hippler had several different motions that he said he was going to rule on, and on Friday, that's exactly what he did, and in this episode we're going to talk about those rulings and how they're going to impact the upcoming trial, and to do that we have an article from the Daily Mail. headline, Idaho murders trial judge rules on Brian Coburger's autism defense, and if roommate can say Bushy eyebrows. This article was authored by Rachel Schart. And Idaho judge has dealt a series of blows to Brian Coburger's defense in his Capitol

31:45murder trial, striking down his efforts to have the term Bushy eyebrows banned, from the case, and ruling that his autism diagnosis cannot be presented as an excuse for his courtroom behavior. And when we were talking about this initially, there was no way that I thought that Brian Coburger was going to be successful here by keeping this sort of testimony out. I never had any doubt that the judge would allow the testimony about Bushy eyebrows to be let in as evidence. There was no way that he was going to exclude that. And as far as the autism goes, well, isn't that a bit convenient that all of a sudden Brian Coburger's diagnosed with autism? My man is one under quite the radical change since being in jail, huh? Diagnosed with autism found God the whole thing. And according to his team, that autism is so severe that it precludes him from getting the death penalty, but it didn't preclude him from getting the PhD or being on a path to get one. It didn't preclude him from going to college. It didn't preclude him from graduating from college. Did it? But all of a sudden it's this big deal,

32:45this big mitigating factor? Sorry, I'm not buying it. The 30-year-old criminology PhD student is facing the death penalty for the murders of Ethan Chapin, Zana Colonel, Madison Mogen, and Kelly Gonsolviz in Moscow, Idaho, back on November 13, 2022. The four University of Idaho students were brutally stabbed to death in the early hours of the morning in the off-campus home in Moscow, Idaho, that the three young women shared with two other roommates. A flurry of court orders were handed down in the case on Friday, one week after the defense and the prosecution went to battle in a courtroom showdown over critical evidence in the high-profile case. In one of the orders, Judge Stephen Hippler ruled that the term Bushi eyebrows would not be struck from the trial, paving way for the surviving roommate Dylan Mortensen's critical eyewitness testimony about what she saw the night of the murders. And it's going to be critical, but it's not going to be the kind of thing that convicts Brian Coburger. It's just a little more seasoning for this stew.

33:48The real ingredient here obviously is the DNA on the sheath. DM's testimony about the Bushi eyebrows is highly relevant in this case, the judge ruled. DM is the only eyewitness to the intruder responsible for the homicides. It's the jury's task to determine whether the defendant is that person. And that is exactly the right way to go. Leave it up to the jury. I'm always of the mind that you should admit more, right, as a judge, even if it might seem ludicrous, trust the jury to see through it. And that way you also avoid providing fertile ground for the carnival barkers to show up and start with their bullshit. Because if your case is strong and you have the right person, the evidence is going to show that no matter what. DM is the only witness to the intruder responsible for the homicides. It's the jury's task to determine whether the defendant is that person. The judge pointed out that Mortensen's accounts have been consistent and that there is nothing confusing about her testimony. While people are going to say that the testimony is jumbled,

34:48that she was under the influence the whole thing. And there is certainly some truth to that. And if her testimony was the only evidence that they had against Brian Colberg, then it would be bad news for the prosecution. But like I was saying earlier, her testimony is just one of the ingredients in the final recipe. Mortensen came face to face with the intruder inside the off campus, student home in Moscow, Idaho, around the time of the murders. According to investigator, she heard noises in the home at around 4 a.m. in the morning, followed by a man's voice. That was not Chapin saying something to the effect of, it's okay, I'm going to help you. When she appeared around her bedroom door, she saw a man walk past her room on the second floor and head in the direction of the back sliding door. The intruder she described was tall, dressed in all black and was wearing a mask. Due to the mask Mortensen could only see his eyes and eyebrows, of the figure and recalled seeing his bushy eyebrows. The defense wanted to block the term bushy eyebrows from the trial. And I can't blame them for wanting to block it, right?

35:51They want to get out as much bad evidence as possible. Things that make their client look bad, toss it. This is all bad evidence. It was collected in properly. There was no chain of custody, you know, the whole thing. But the truth is and the Brian coberger stands aren't going to want to hear it, but the truth is the prosecution has been on the up and up this whole entire time. And there has not been even a hint of prosecutorial misconduct. And you can cry and gnash your teeth and moan and well all you want, but the truth is the truth. And the truth is there is a proponderance of evidence that's pointing directly at Brian coberger and nobody else. And now that all of this is failed, you're going to see them start focusing on the unknown assailant theory that they're cooking up. Wait and see, that's the next thing coming. In last week's hearing, the defense picked holes in Mortensen's reliability as a witness, including that she admitted she was drunk at the time. Toh police, she was in a dream like state had drawings of people with prominent eyebrows on her walls and that she was not separated from other witnesses following the discovery of the murders.

36:54They also argued that Mortensen did not mention eyebrows at all during the first three police interviews, only mentioning them when asked by officers. The lynchpin, the reliability is not there. The defense said prosecutors, however, argue that our account and description of the intruder had been consistent in every interview. The man was white, a few inches taller than her, dressed in all black, wearing a mask, was skinny, and had a voice she did not recognize. The state also argued that the focus on the eyes and eyebrows was natural, given that was the only facial feature she could see beneath the mask. Prosecutors want to show jurors that chilling selfie captured by coberger around six hours after the murders as evidence of his bushy eyebrows at the time of the murders. And there's a whole heap of relevance there. If he took this photo six hours after the murders according to metadata and you have a witness who says somebody that matches the description, including the eyebrows, was the person who committed these murders. How in the hell can you say that's not reliable? Now you can point to the fact that she said she was drunk,

37:56and frankly I think there was more than just alcohol, right? I said before that there might have been some hallucinogenics or something like that going on, but there certainly wasn't enough here for the judge to exclude this. This is something that the jury should take a look at, they should hear, and they should make their decision. Dylan Mortensen is the only living individual who saw the person who's responsible for these homicides, the prosecutor said, adding that this makes her a relevant to identify the killer. Insighting with the state, Judge Hibbler wrote in his court order that Mortensen's account of what she saw and the physical characteristics of the intruder were remarkably consistent throughout all five interviews and her grand jury testimony, and consistency turns into credibility. Keep that in mind. Although she might have been intoxicated or tired or questioned or memory, the consistency of her description suggests high degrees of reliability, the judge ruled, adding that challenges to her competency and personal knowledge, as basis for exclusion are unfounded. There's a large gulf between finding that witness is not competent to

38:59testify about what they personally witnessed and simply allowing impeachment by vigorous cross-examination the judge wrote. This is a matter for cross-examination by defendant and any concerns with DM's ability to perceive and remember what she claimed she saw maybe tested in that manner. That's exactly what I said a second ago. That's a cross-examination issue. There's nothing to do with the judge just leaving that out. That's crazy talk. In another blow to co-buggers' defense strategy, the judge also issued a bombshell court order ruling that his team can only present evidence of his autism diagnosis as a reason for his courtroom behavior if co-burger himself takes the stand to testify. There's about as much of a chance as me hitting a home run at Yankee Stadium as there is a Brian co-burger getting on the stand. During the penalty phase, where if convicted jurors could sentence them to death, co-burger's defense wanted to present expert witness testimony about his autism diagnosis. The team claim that his diagnosis could explain to jurors co-burgers potentially out behavior in the courtroom, something the prosecution asked the judge to reject.

40:03Specifically, defendant asserts testimony about his ASD will help the jury understand that his behavioral characteristics such as flat effect, intense eye contact, awkward body posture, and lack of emotive responses are associated with his ASD and should not be interpreted in sinister light the court order reads, while behind bars waiting trial for the murders co-burger under one a comprehensive neuropsychological evaluation by defense expert Dr. Rachel Moore. So his whole life he lived and he never knew he had autism, huh? Now look, I'm not saying that doesn't happen, but come on. Obviously whatever sort of autism Brian co-burger has, it's high functioning. So the whole autism debate was nothing more than some more chum in the water. Just another way for the defense to say look Brian co-burger's not being treated fairly, he's not even mentally competent, without saying he's not mentally competent. She ultimately diagnosed him with autism spectrum disorder and obsessive compulsive disorder. The court order notes that his autism diagnosis is for level one without intellectual or

41:08language impairment. The least severe form of ASD and that he is highly functioning. So it's a non starter, right? We're not talking about somebody who can't get out of bed, we're not talking about somebody who is having difficulty with his autism to live his regular life. We're talking about somebody who all of a sudden now that he finds his ass in the sling, now he has autism and that should be something that factors into his trial. Wrong, not gonna happen, never was going to happen and good luck trying to get that in on an appeal as well. Judge Hippler also noted that he had never noticed any odd or inappropriate behavior from co-burger, such as the described by the defense during his many times in the courtroom. And that plays a big part, right? Judge Hippler has seen Brian co-burger in the courtroom in front of his own eyes now several times, and according to him none of that was a factor or was gonna be a factor moving forward. The court has had the opportunity to observe the defendant through multiple hearings over the past several months, some lasting all day.

42:09Not once does the court perceive defendant to be acting in an odd or incongruent manner, or otherwise demonstrating signs at council table that would warrant any explanation to the Jerry the Judge wrote. His demeanor has been entirely appropriate. If co-burger does not take the stand to testify at his trial, then his demeanor is also not relevant the Judge wrote because jurors are already required to only weigh the evidence presented by witnesses on the stand. Introducing such evidence risks confusing the issues, misleading the jurors, wasting time, and potentially unfairly prejudicing both defendant and the state he wrote. Should co-burger decide to testify evidence to explain his demeanor may become relevant the Judge wrote. While banning the presentation of his autism diagnosis, the Judge said he would reserve ruling on whether jurors can hear the evidence of co-burgers OCD until trial. According to the defense co-burger has a tendency to wear gloves and dispose of shower curtains due to his OCD. Oh, give me a break. Like people are actually buying this. You have people out

43:12there simping for this, dude, who actually believe this. No, he wasn't running around in rubber gloves because of his OCD, okay? Well, I was either throwing shit in his neighbor's trash can. Is that because of OCD, too? It also caused his sleep difficulties that have led to a habit of nighttime driving they allege. Oh, yeah, that's what it was. He was sleep driving, and the amount of people that I see on social media talking nonsense that they have no idea about is just bizarre. Like you can tell who's read the court documents and who hasn't. Co-burgers alibi for the night of the murders is that he was driving around alone looking at the moon and the stars, and they have no corroboration for that by the way, unless you count their expert, Sy Ray, who says that he's going to partially corroborate Brian co-burgers location via data. There's only one problem. There's no such thing as partial corroboration in the state of Idaho. So good luck with that, and I think that co-burgers teams are going to run into some problems with this expert that they brought in. The judge has already had managed the defense

44:15for his affidavit, so I expect more of that moving forward. The defense also claims he has a physical condition, developmental coordination disorder, that would have made it impossible for him to kill four, and the roughly 13-minute time frame laid out by the state. Judge Hitler ruled that the OCD cannot be presented at trial, and part due to the fact that co-burger does not have a current diagnosis for the condition. This dude has all kinds of conditions all of a sudden, huh? What's next, leprosy? He's blind. In other orders issued on Friday, the judge also denied the defense request, restricting testimony about the surveillance footage of the White Hyundai Alantra, seen around the crime scene at the time of the murders. The defense did score a minor win, however, with the judge asking the witnesses to avoid using the terms touch DNA, contact DNA, and trace DNA and reference to the knife sheath left behind at the scene. Well, call whatever you want. The fact is Brian co-burgers DNA is on that knife sheath. So until somebody can explain that, including all of the weird sims out there that are

45:19simping for this dude, I really don't want to hear it. All the other shit you're doing is just narrative building, and I have no time for it, and frankly, the time for narrative building is coming to a close. We're at a point now where the evidence should be apparent, and so far Brian co-burger hasn't brought shit to the table. During last weeks hearing the judge previously ruled that the state cannot use his diagnosis as an aggravating factor if he's convicted, and the trial enters the death penalty phase. And I think that's correct, right? I certainly think that that's the way to go. This is not a debilitating, you know, condition that Brian co-burger's suffering from. This is level one autism. He also banned the words, so she apath and psychopath from the trial, and ruled that co-burgers Amazon purchase history can be shown to jurors. Nobody was going to use the words, psychopath or psychopath anyway. So sure, enjoy your periodic victory, buddy. Co-burger was tied to the murders through a K-Bar Brown leather knife sheath, featuring a US

46:22Marine Corseal, which was found next to Morgan's body in her bedroom on the third floor of the home. DNA on the sheath was traced back to Co-burger, using investigative genetic genealogy, according to prosecutors. Following his arrest, it was found to be a statistical match. Oh no, but it wasn't him. It was somebody else. It was the drug cartel. It was the fraternity. That's the other one they like to talk about. Oh, it was the fraternity who killed them. Shut your dumb ass up. It's everybody but Brian co-burger, right? Everybody but the big problem with all of that though is there's no evidence that points away from Brian co-burger when in fact, all the evidence points directly to him. While the murder weapon has never been found, co-burgers Amazon Shopping History reveals he bought a K-Bar knife sheath and sharpener from Amazon back in March of 2022, according to a prosecution filing. It was shipped to his parents home in Pennsylvania. Following the murders, co-burger searched the buyer of placement knife and sheath prosecutors a ledge. The judge is yet to rule on several other motions.

47:26Co-burger is slated to go to trial in August. He faces the death penalty of convicted and outcome that has been welcomed by some of the families of the victims. Due to changes in state law, he could be executed by firing squad. The horror murders, the first homicide in seven years for the small, tight-knit college town plunged the community into fear and sent shockwaves across the country. Around six weeks later, on December 30, 2022, police swooped in on co-burger at his parents home in the Poconos region of Pennsylvania and charged them with the murders. As well as DNA found on the knife sheath, prosecutors say co-burger has been tied to the murders through his white Hyundai Alantra, which matches the car scene leaving the crime scene at the time of the murders. Cell phone records also allegedly show that co-burger may have stalked the king road home at least a dozen times in the lead up to the murders and that he turned his phone off while committing the crime to try to cover his tracks. Anak Gilti plea was entered on his behalf at his arraignment. He has next to him court in mid-May for pretrial hearing.

48:29All right, so those rulings pretty much fell exactly where I thought they would, considering what we know about Judge Hibbler and what we know about the case overall. So over this weekend, I'll get those orders that Judge Hibbler filed into the catalog that way we keep this train rolling and we'll continue on as we continue to follow along with a trial of Brian co-burger. All of the information that goes with this episode can be found in the description box.