Mega Edition: Bryan Kohberger And The Attempt To Use His Autism As A Defense (9/10/26)

0:00What's up everyone and welcome back to the program. In this episode we're going to keep the train rolling up in Moscow, and this time we're taking a look at the order by Judge Hibbler that has to do with the state's motion in Lemanay, Neuro-psychological and psychiatric evidence. Case number CR01-24-31665. State of Idaho plaintiff, first Brian C. Colberger, the defendant. Introduction. The state seeks to prohibit the defendant from offering any testimony during the penalty phase in connection with his neuropsychological and psychiatric evaluations performed by his disclosed experts, Dr. Rachel Orr and Dr. Eileen Ryan. The state argues the proposed testimony falls outside the mental conditions evidence, allowed by IC section 18-207. Defendant responds that he is not relying on the proposed testimony as a mental element defense under IC section 18-207, noting his relevant diagnosis

1:00are physical conditions not mental conditions. Rather, he intends to present the evidence to aid the jury in understanding both the physical implications of his diagnoses and contextualizing his allegedly unconventional courtroom demeanor. Oral argument on this motion was held on April 9, 2025, after which the court took the matter under advisement. The court finds that if defendant does not testify, evidence of his diagnosis to explain his courtroom demeanor is not relevant and or inadmissible under IRE-403. Ruling is reserved as to certain behaviors that may become relevant in a rebuttal, except for expert testimony that he was physically unable to commit the crimes for which there is no disclosed opinion. To standard. The question of whether the evidence is relevant, one of law, while the decision to admit relevant evidence is discretionary. State verse shuts 143 Idaho 200-202-141-p.3D-1069-1071-2006.

2:05On 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 verses my fund life 163 Idaho 2018. Three, the facts. During the course of this case, the defense team retained Dr. Rachel Oer, a clinical neuropsychologist, to conduct a comprehensive neuropsychological evaluation of defendant and issuer report. She ultimately diagnosed defendant with autism spectrum disorder, level 1, without any intellectual or language impairment, an obsessive compulsive disorder among others. Defense exhibit. An expert disclosure, D7B page 16. She also listed various diagnosis for which defendant met criteria in the past. One of these was developmental coordination disorder.

3:07According to Dr. Oer, ASD is a complex, heterogeneous, narrow developmental disorder, rooted in brain differences and characterized by social and behavioral features. It causes deficits in which affected individuals perceive and react to others and their environment, causing problems in social communication and interactions, repetitive behaviors, and narrow range of interests. There is a wide range of autism symptoms and severity. Deficits can include a restricted range of effect, a typical eye contact, displaying facial expression or movements that do not match what is being said, valued to consider social cues, having trouble with speech reciprocity, and repetitive behaviors. While defendant is diagnosed with the least severe form of ASD and by all accounts is highly functioning, both Dr. Oer and Dr. Ryan noted deficiencies in his behavior to include intense eye contact, restricted range or effect, occasional subtle rocking of upper torso while seated, awkward gestures and interaction,

4:10a typical tone, lack of appreciation for personal space, and pedantic speech. Sounds like all of our elected officials, honestly. However, Dr. Oer also observed that defendant demonstrated typical social behaviors such as fairly consistent through intense eye contact, polite demeanor, and social conventions, e.g. shaking hands upon greeting, or report at page 8 and 9. She noted defendant, engaged in conversation, and never, overtly inappropriate, Dr. Oer noted that defendant manages sensory processing differences by self-suelling activities like driving and extensive time in the dark. Defendants OCD is manifested through compulsive cleaning behaviors and taken precautions to avoid contamination, sickness, or germs, or report page 18. He excessively washes his hands and reported uses gloves during basic everyday tasks. Although defendant does not carry a current diagnosis of DCD, Dr. Oer opines that he met the criteria for the diagnosis in the past. She explains in her report, defendant's educational history,

5:15parent report, and evaluation results all provide evidence that defendant experienced significant deficits and motor functions in the course of development, which in turn contributed to problems meeting typical motto and coordination milestones of childhood, e.g. problems catching balls, handwriting, writing a bicycle. While motor problems have not impacted his functioning significantly in many years, defendant continues to present, with impairment, in fine motor dexterity, and vulnerabilities in visual motor functions, evidence in his cognitive profile, and observations of his behavior. The only observation Dr. Oer made with regard to defendant's fine motor dexterity was that defendant moved his whole arm and repositioned his upper body slightly to manipulate the items effectively. Id page 7. In her cognitive profile, she stated that defendant's visual motor skills were relatively weak in the context of his overall profile, particularly when precision or dexterity were involved. E.g. copying visual motor sequencing, consistent with her history of

6:19fine motor deficits. When isolated, defendant's fine motor dexterity and speed were impaired, bilaterally, first percentile, likely impacting his visual motor performances as well. According to the declaration by Dr. Jeffrey Lawine, submitted by defendant as exhibit D1 to his response to state's motion, ASD, OCD, and DCD are either neurodevelopmental or neuro-biological disorders, as opposed to mental conditions caused by external psychological factors or events. He notes that an MRI of defendant's brain shows objective evidence of disruptive brain structure in several nodes of the social network, Id page 4. Part 4. The Analysis. A. I see section 18-07 is not applicable. Section 18-07 Idaho Code applies to any issue of mental condition in any legal proceeding at which the defendant's mental health condition may be an issue, state for Samuel 165

7:22Idaho 746 2019. It provides in relevant part one mental condition shall not be a defense to any charge of criminal conduct. Three, nothing herein is intended to prevent the admission of expert evidence on the issue of any state of mind which is an element of the offense subject to the rules of evidence. I see section 18-07. Under the statute, the evidence of mental condition is expressly permitted to rebut the state's evidence offered to prove criminal intent or menswear, state for his Diaz 170 Idaho 2022. Any expert testimony admitted on the issue of menswear or state of mind under Idaho Code Section 18-07 must speak to an element of the crime, ID at 85-507 p.3 d. at 1115. Here, however, defendant is not intending to use his diagnosis to challenge the state of mind element of the crimes for which he is charged. In fact, he is not intending to use his diagnosis as

8:23a reflection of his mental state at all and disputes that there are mental conditions in the first place. Thus, because defendant is seeking to introduce his diagnosis to explain physical deficits, rather than mental deficits that qualify him from forming the intent necessary to commit the crimes, I see section 18-07 does not govern the analysis. Be evidence of defendant's diagnosis. Having determined that I see section 18-07 does not apply, the next question is whether evidence of defendant's diagnosis is relevant. Evidence is relevant if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, IRA 401. Whether a fact is of consequence or material is determined by its relationship to the legal theories presented by the parties, state vs. Abdullah 158-2015. Even if relevant, the trial court has discretion to exclude the evidence

9:26if the 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, waste of time, or needless presentation of cumulative evidence, IRA 403. On fair prejudice, as prejudice, that tends to suggest a decision on an improper basis, state vs. DS 2022. One, evidence of ASD to explain demeanor is only admissible if defendant testifies. With regard to evidence of his ASD, defending contends its relevant to explain that his ASD diagnosis is a physical condition and how it presents in his demeanor. Specifically, defendant asserts testimony about his ASD will help the jury understand that his behavioral characteristics, such as his flat effect, intense eye contact, awkward body posture, and lack of a motive response, are associated with his ASD and should not be interpreted in a sinister light. Defendant argues that he should be able to introduce the

10:28evidence at the outset of trial. The state responds that defendant's demeanor is not a fact of consequence in this case, and not even evidence the jury can consider. At least if he does not testify, to this end the state relies on a body of law regarding prosecutorial misconduct in commenting on a defendant's demeanor as evidence of guilt. In one representative case, United States Vershuler, the court observed that a defendant's courtroom behavior, off the witness, stand is not admissible evidence and is legally irrelevant to the question of his guilt of the crime charged. 813f.2d9circuit1987 Thus in the absence of a curative instruction from the court, prosecutors comment on a defendant, off the stand behavior, constitutes a violation of the due process clause of the Fifth Amendment. The clause encompasses the right not to be convicted except on the basis of evidence adduced at trial. While the relevance of defendant's demeanor is raised in a different context here,

11:29the principles of his body of law apply equally. The Supreme Court declared that one accused of a crime is entitled to have guilt or innocence determined solely on the basis of the evidence introduced at trial and not on the grounds, not adduced as proof at trial. Taylor, Verskentucky, 436 US 478 1978 The jury will be instructed as to what evidence is allowed to consider in arriving at its determination of guilt or innocence, sworn testimony of witnesses, exhibits which have been admitted into evidence and facts to which the parties have stipulated. I see J.I.202, a non-testifying party's demeanor is not included and therefore legally irrelevant to the question of guilt. All right, we're going to wrap up right here and in the next episode we're going to pick up where we left off. 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 Judge Hitler's order when it comes to autism and the neurodivergent

12:33issues that Brian Coburger has. While defendant cites to case law, allowing evidence of A.S.D. in the criminal context, those cases are distinguishable. In St.Versburg, which defendant predominantly relies upon, the New Jersey Supreme Court found evidence of the defendant's A.S.D. was properly admitted in a child molestation case, for two independent reasons, one to explain that the defendant's actions of having his young piano students sent on his lap was not intended as sexual grooming, but rather a way to relate to his students, and two to educate the jury about oddities and behavior that defendant might exhibit in court or that were described in the testimony of witnesses. Those oddities and behavior were not discussed in the opinion, however, in a prior decision in the case by the New Jersey Superior Court, a pellet division, the court provided more detail thus placing the ruling in its proper context. St.Versburg, New Jersey Supreme Court, a pellet division of November 16th, 2006.

13:34There, the court noted that during a pre-trial court appearance, the trial judge became alarmed by defendants, odd appearance, and demeanor, when he arrived to the court with a bag or large sign draped over his head. When the trial judge inquired about his dress, the defendant began quoting from the book of Deuteronomy. Concerned the trial judge ordered a competency examination, which revealed that the defendant was demonstrating signs of Asperger's disorder, with which was subsequently diagnosed. The state sought to exclude expert medical testimony at trial about the defendant's diagnosis, but the defendant argued it was relevant to show that his ability to make social judgements wasn't paired. I.E. allowing young female students to sit on his lap and to explain his odd or alarming appearance and mannerisms. The trial court excluded the evidence and the defendant was convicted. Not one of defendant's experts has ever imputed behavior to him that remotely approaches the odd behavior in Burr, moreover the court, has had the opportunity to observe defendant through

14:38multiple hearings over the past several months, some lasting all day. Not once as the court perceived defendant to be acting in an odd or incongruent manner or otherwise demonstrating signs at council table that would warrant any explanation to the jury. His demeanor has been entirely appropriate, in addition unlike in Burr, the state is indicated it will not present any evidence from witnesses about defendants allegedly odd behavior. Consequently, testimony about defendants A.S.D. is simply not relevant if he does not testify. Moreover, introducing such evidence risks confusing the issues, misleading the jurors, wasting time, and potentially unfairly prejudicing both defense and the state. The jury will already be instructed about evidence it is allowed to consider in determining guilt because there is no reason for this testimony except to explain something that a jury is not allowed to consider in the first place, i.e. defendants demeanor. It may very well cause confusion about the role of expert testimony and how it plays in the overall

15:40determination of guilt. While the court is not blind to the fact that the jury will be scrutinizing defendants courtroom behavior during trial, allowing testimony about his A.S.D. to explain his courtroom behavior amounts to judicial endorsement of improper evidence. If anything presenting evidence of defendants A.S.D. will focus to the jurors, even more on defendants' behaviors, that they likely would not have noticed in the first place, it may also diminish the way to sign to evidence the jury is instructed to consider in aiding its determination of guilt despite instructions to the contrary. It essentially invites the jury to consider the character of the accused to determine guilt, which is not proper except as allowed by IRE 404. In this sense, the evidence runs the risk of being unfairly prejudicial to defendants. It additionally risks playing into the jury sympathies to the prejudice of the state. Moreover, expert testimony, particularly on a diagnosis as encompassing as A.S.D. will consume a significant amount of time in an already lengthy trial. Consequently,

16:45if defendant does not testify evidence of his A.S.D. to explain his courtroom demeanor is inadmissible under IRE 401 and 403. If, however, defendant testifies evidence to explain his demeanor may become relevant at that point. Defendants demeanor, which goes to his credibility, is relevant evidence a jury can consider, which the state concedes. However, prior to presenting testimony on the matter, defendant must raise the matter with the court outside the presence of the jury to discuss the permissible scope. Two, the court reserves ruling on admissibility of OCD evidence. Defendant argues that evidence of his physical manifestations of OCD may be relevant in a bottle. Those manifestations according to Dr. Orr including compulsive handwashing, wearing gloves to avoid germs, and generally avoiding anything contaminating. Defendant further adds an argument only that is OCD causes sleep difficulties that have led to a habit of night driving and running to decompress. He argues that if

17:48the state elicits testimony at trial related to these facts in order to support elements of the crimes, evidence of these manifestations will be proper rebuttal. The state responds that it does not intend to introduce any evidence during the guilt phase as to defend in sought behaviors, social miscues, or other unusual behaviors. However, it requests that the court reserve ruling until the time of trial. The court finds this an appropriate approach. Again, prior to introducing such evidence or otherwise mentioning it before the jury, defendant shall raise the matter outside the presence of the jury. Three, evidence of DCD is not admissible to a but ability to commit crimes. As with the ZocD, defendant argues he intends to introduce evidence of deficits in his fine motor dexterity and visual motor function caused by DCD to rebut the state's evidence that it was possible for him to have acted with the speed and coordination required to commit the crimes. The state responds that defendant is improperly stretching the bounds of his experts opinion

18:53to reach an inference that cannot reasonably be drawn, which was not disclosed, and which otherwise has no support. It argues that the evidence is not relevant to guilt and are barred by RRE403. The state's challenge is well placed, whether defendant was physically capable of speed and dexterity to commit the crime on account of DCD is within the realm of expert opinion. As Dr. Lawine observed, DCD is characterized by impairments in the development of motor coordination, including dexterity, limb speed, and gross and fine motor skills. Declaration at 15. It is associated with structural and functional disruption of motor control and coordination networks with minimal modulation by psychological factors. However, it is not a diagnosis from which defendant currently suffers, and a report Dr. Ornoded DCD was a diagnosis for which defendant met criteria in the past. Further, there is nothing in her disclosure, or report suggesting defendant

19:54was physically unable to commit the crimes due to impairments associated with DCD. Her entire discussion on defendant's DCD is as follows. Defendance Educational History, Parent Report, and Evaluation Results all provide evidence that defendant experienced significant deficits in motor functions in the course of development, which in turn contributed to problems meeting typical, moto and coordination milestones of childhood. EG problems catching balls, handwriting, riding a bicycle, while motor problems have not impacted as functioning significantly in many years, defendant continues to present with impairment and fine motor dexterity and vulnerabilities in visual motor functions, evidence in his cognitive profile, and observations of his behavior. The only observation Dr. Orn made with regard to defendant's fine motor dexterity was that defendant moved his whole arm and repositioned his upper body slightly to manipulate the items effectively. In her cognitive profile, she stated that defendant's visual motor skills

20:57were relatively weak in the context of his overall profile, particularly when precision of dexterity were involved, EG copying, visual motor sequencing. Consistent with his history of fine motor deficits, when isolated, Brian's fine motor dexterity and speed were impaired bilaterally, likely impacting his visual motor performances as well. The foregoing represents the extent of expert commentary on defendant's DCD, nothing therein remotely approaches, an opinion about defendants' ability to commit the crimes. At most, Dr. Orn could testify about her observations about his weak fine motor dexterity and visual motor skills, but without any opinion tying this evidence to his ability to commit the crime, its relevance is lacking and it invites unsupported speculation by the jury about defendants' ability to commit the crime. Additionally, there is again the concern the expert testimony will consume, and an ordnant amount of time on an issue for which there is no foundation and a trial that will already be lengthy. Wailing this

22:00concern against the lack of any provative value for their warrants its exclusion under IRA 403, as the state of evidence stands currently. Five Order Based on the foregoing states motion in Lemanay, neuropsychological and psychiatric evidence is granted in part and reserved in part. It is so ordered. This document was signed on April 17, 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 headed right back out to Moscow and we're going to take a look at some more court documents. This time we're going to be taking a look at the defendant's response to the state's motion in Lemanay, neuropsychological and psychiatric evidence. Case number CR01-24-31665. State of Idaho plaintiff, first Brian C. Coburger, the defendant, comes now. Brian C. Coburger, buy-in-through as attorneys of record, and hereby responds to the state's motion in Lemanay.

23:06Neurocycological and psychiatric evidence filed on February 21, 2025. The state objects to the proposed testimony of Rachel L. Orr and Eileen P. Ryan arguing that the proposed testimony is outside of the mental condition evidence allowable under Idaho Code Section 18-2073. This response is made pursuant to due process, IRA-106 for a complete defense and a fair trial guaranteed by the 5th, 6th, and 14th amendments to the United States Constitution and Article 1, Section 13 of the Idaho Constitution. The minute the jury selection begins, jurors will begin to study and analyze Mr. Coburger's physical presence. They will watch as every move and pass judgment on him every minute of the jury trial, simply based on how he looks and reacts to the presentation of certain evidence and comments about him. Mr. Coburger must be able to present testimony to the jury that he has certain physical disorders.

24:07It will assist the trial effect to know his physical presentation, including nonverbal reactions in the courtroom, is explained by his physical condition. To exclude this evidence will result in unfair bias that could cause a wrongful conviction. This objection is supported by the declaration of Jeffrey Lawine, an expert in neuroscience, and neuroimaging. Mr. Coburger in no way suggests that expert testimony related to his autism spectrum disorder, ASD, obsessive-compulsive disorder, and developmental coordination disorder are for the purpose of showing that he does not know right from wrong. He has at all times and continues to assert his actual innocence in the case. The state correctly noted in its motion Mr. Coburger's disclosure states that Dr. Orr's testimony and Dr. Ryan's testimony is not intended to be a mental element defense pursuant to Idaho Code Section 18207, but rather this testimony about the state of mind as well as factual defense testimony to anticipated testimony elicited by the state. Defendants exhibit D7A

25:14Page 3424. Idaho Code Section 18-207 is not limited to the admission of either direct or a bottle expert testimony to elements of the crime state versus Samuel 165 Idaho 2019. Because of the statute's broad application, the Idaho Supreme Court has determined that Idaho Code Section 18-207 applies to legal proceedings before trial, including pretrial motions. The threshold test for the admission of expert testimony is whether the scientific or other specialized knowledge of the expert will assist the trial effect to understand the evidence or determine a fact at issue, IRA 702. The function of the expert is to provide testimony that is beyond the common sense, experience, and education of the average juror, state-verse hester 114 Idaho 688 1988, where the normal experience and qualifications of lay jurors permit them to draw proper conclusions from giving facts and circumstances, then expert conclusions or opinions are admissible.

26:20In this case, it is not the normal experience and qualification of lay jurors to understand ASD, OCD, or developmental coordination disorder, expert testimony is necessary. Autism Spectrum Disorder. The anticipated testimony of Dr. Orr and Dr. Ryan is relevant to explain that Mr. Coburger's ASD diagnosis is a physical condition and how it presents in his demeanor. Mr. Coburger has met the criteria for the diagnosis since childhood, and that is not a convenient diagnosis given his currently ill situation and jeopardy, defend an exhibit D13B page 3938. The anticipated testimony of Dr. Orr and Dr. Ryan is relevant to explaining how the behaviors and mannerisms presented by Mr. Coburger are consistent with the individual having ASD. In addition to the opinions of Dr. Orr and Dr. Ryan, the declaration of Dr. Lawine explains that neuroimaging of Mr. Coburger's brain supports the ASD diagnosis.

27:23ASD is a neurological disorder that is physical, and while most people or nearly think of ASD as a mental health condition, it is a neurological and developmental disorder that affects how people interact with others, communicate, learn, and behave. Defendant's motion, distract penalty, of death, autism spectrum disorder page 4. According to the United States Government National Institute of Mental Health, autism spectrum disorder is a neurological and developmental disorder that affects how people interact with others, communicate, learn, and behave. Autism spectrum disorder, National Institute of Mental Health. Last retrieved March 16, 2025. As a neurological disorder, ASD is associated with structural and functional i.e. physical defects in the tissue of the brain, that can't be seen when you look at a person, but it can be observed with proper microscopic examination and in some individuals through the use of quantitative analysis of magnetic resonance

28:24imaging of the brain, such as the case with Mr. Coburger, see attached declaration of Dr. Jeffrey Lawine. Research on large groups of persons with ASD has indicated the presence of structural differences in the brain of these groups versus those individuals with typical neurobiological development, which also supports the conclusion of NIMH and others that ASD is a neurological disorder. Imaging of Mr. Coburger's brain is reported in Dr. Lawine's attached declaration show findings of structural differences in the physical makeup of his brain, in areas commonly associated with a control and expression of behaviors commonly seen in a ASD and listed below as taken from the NIMH website. Symptoms of an actual behavior commonly associated with obsessive-compulsive disorder OCD are common in people with ASD. As a physical condition ASD may not be as noticeable as some physical conditions like a missing arm,

29:26if Mr. Coburger had the physical disability of a missing arm, the jury would not require explanation about how such a physical condition may impact the case. ASD is visible in some ways that will be apparent to a jury but requires explanation. Without explanation, the way that the public perceives the behaviors and mannerisms of someone with ASD is not always favorable and may be prejudicial. While Mr. Coburger's presentation is highly consistent with ASD, without explanation others may misinterpret and misidentify Mr. Coburger's behaviors and cast them in a more sinister light. For example, he does not show emotion on his face, he has a flat effect, he sits very still and holds his hands in the same position, he has a piercing stare, he does not show expected reactions, facial expressions do not reflect what he is feeling, he is stiff in body posture, he has prosody in speech, uses repetitive phrases and large words

30:27and has developed austerity problems. Many of his behavioral characteristics are known to be commonly associated with the presence of ASD and are clearly relevant to the interpretation of his behavior in the courtroom by the jury and may also be relevant evidence regarding the rebuttal of evidence as to the commission of the crime itself. Further explanation about ASD by the United States government National Institute of Mental Health is helpful, the NIMH provides the following on its website. The list below gives some examples of different types of behaviors that are common among people diagnosed with ASD. Not all people with ASD will have all behaviors, but most will have several of the behaviors listed below. Social communication and social interaction behaviors may include making little or inconsistent eye contact, appearing not to look or listen to people who are talking, and frequently sharing interest emotion or enjoyment of objects or activities, including infrequently pointing at or showing things to others. Not responding or being slow to

31:30respond to one's name or other verbal bids for attention, having difficulty with the back and forth of conversation, often talking at length about a subject of interest without considering social cues or conversational give and take, displaying facial expressions, movements, and gestures that do not match what is being said. Having an unusual tone of voice that may sound flat, lacking emotion, or a tonal variation, having trouble understanding another person's point of view, or being unable to predict or understand other people's actions. Difficulties adjusting behavior to different social situations, difficulty sharing, and imaginative play or making friends. Restrictive repetitive behaviors may include repeating certain behaviors or having unusual behaviors, such as repeating words or phrases, having a lasting intense interest in specific topics such as numbers, details, or facts, showing overly focused interests, such as with moving objects or with parts of objects,

32:32becoming upset by slight changes in a routine and having difficulty with transitions. Autistic people often have sensory differences such as being more sensitive or less sensitive than other people to sensory inputs such as light, sound, clothing, or temperature. Based upon a reasoned analysis of discovery provided by the state-to-date, Mr. Colbergers' behaviors that are attributed to his ASD and on his list of common behaviors of persons with ASD is provided by the NIMH along with other behaviors attributable to his neurological condition must be presented to the jury to confront and rebut certain evidence to be profered by the state. All right, we're going to wrap up part one right here, and in the next episode we're going to pick up with obsessive compulsive disorder. All of the information that goes with this episode, including my contact information, can be found in the description box. What's up everyone and welcome back to the program. In this episode we're going to pick up where we left off with Brian Colbergers'

33:35response to the state's motion in Lemanay, neuropsychological and psychiatric evidence. Obsessive compulsive disorder, OCD. OCD can be an independent diagnosis, but it also is a set of symptomatic behaviors that are often co-morbid in ASD as with Mr. Colbergers' ASD. Notable, for example, on the above, NIMH list of behavioral issues commonly associated with ASD, Mr. Colberger has sleep difficulties and subsequently developed a habit of night driving or running to decompress. Such behaviors being present most of his life. He also engages in frequent compulsive handwashing, wears gloves, to avoid germs, has a fear of things getting into his eyes, changes his shower curtain frequently to avoid exposure to mold, and avoids anything he views as contaminating. Look, just interject real quick. How does that track with somebody that's going to be at crime scenes, picking up all kinds of disgusting evidence? I don't buy any of this. If the state elicits testimony at trial related to

34:41these types of facts that are used to build circumstantially, the elements of the crime that or show Mr. Colbergers actions as reflecting a state of mind or other elements of the crime, he will refute that evidence through expert testimony as behaviors related to his OCD and his ASD. By the way of specific example, the state has continued to claim that Mr. Colberger was wearing gloves on the night of his arrest and placing trash in baggies. The state asserts that this demonstrates he had a consciousness of guilt and he was trying to either hide, his DNA, or engage in the cleaning of his car. This is highly prejudicial and misleading. Mr. Colberger frequently wears gloves to avoid germs on surfaces. He was not cleaning his car on the night of his arrest. He was awake at night as his typical forum and he was cleaning his bathroom. While testimony related to these topics may not be relevant until the state opens the door by eliciting testimony on these issues once it does, Mr. Colberger must be allowed to provide expert testimony refuting the state's witnesses.

35:46Such relevant evidence can assist the trial effect in evaluating circumstantial evidence the state may put forward and since all such testimony would be subject to vigorous cross-examination, it would clarify and not confuse the jurors. Developmental coordination disorder. Mr. Colberger suffers from deficits and fine motor dexterity and visual motor function. Clearly, these are physical issues. He has experienced these physical impairments all of his life. The state's disclosed evidence that law enforcement will testify that they did test runs at 1122 King Road and that it's possible to commit four homicides in a time frame of only minutes, including walking to and from a car and removing clothing that would be covered in blood. Additionally, the state is disclosed a forensic pathologist who will testify regarding manner of death injuries and specific wounds on the deceased. Mr. Colberger has disclosed a forensic pathologist who has some differing opinions, including injury and specific wounds on the deceased.

36:48It will be relevant for the jury to know that Mr. Colberger has a developmental coordination disorder that impacts his fine motor dexterity and visual motor function, such speed and coordination are not possible for him. Conclusion. Mr. Colberger has a right to confront the witnesses and evidence presented by the state and due process under the 5th, 6th and 14th amendments to the United States Constitution and Article 1, Section 13 of the Idaho Constitution. This includes presenting evidence to rebut the case against them. The court should deny the state's motion to limine, to exclude neuropsychological and psychiatric evidence. More specifically, the court should allow Dr. Orr and Dr. Ryan to testify. The physical disorder of ASD should be allowed at the outset of the trial, issues related to his OCD symptoms that are an outgrowth of his neurological disorder, aka ASD, C-N-I-M-H quotes above, and developmental coordination disorder may depend on the evidence the state elicits as the trial proceeds. This document was dated, March 17th of 2025, and it was

37:54signed by Elissa Massoth. All right, moving on to the next document, and that is the declaration of Jeffrey Lawine BSMS Ph.D. I, Jeffrey David Lawine, swear under a penalty of perjury that the information in this declaration is true and correct to the best of my knowledge. My name is Jeffrey David Lawine Ph.D. I'm over the age of 18, mentally competent, and make this declaration freely based on my own personal knowledge. I have BSMS and Ph.D degrees in neuroscience from the University of Rochester, plus post-doctoral training in biophysics and neuroscience as a director's fellow at Los Alamos National Laboratory. Over my career, I have held academic appointments in multiple university departments, including appointments in neurology, University of Kansas, University of New Mexico, Radiology, University of New Mexico, University of Utah, and Psychiatry and Behavioral Sciences, University of Kansas. I presently hold multiple academic and business-related titles

39:00and positions as outlined below on the CEO and president of neuroscience expert consulting services of America. Any CSOA provides data analysis and consulting services, especially with respect to legal proceedings. I am the CEO and CSO of the Center for Advanced Diagnostics Evaluation and Therapeutics. Cadet and M Incorporated is involved in the development and evaluation of novel therapeutics for neurodevelopmental disorders, TNTBI. I am the CEO and CSO of Cadet Scientific LLC. Cadet Scientific is engaged in basic research on neurodevelopmental disorders, TBI, PTSD, and dementia. I am an affiliate professor of Translational Neuroscience in the Mind Research Network, MRN. MRN is a 501-C3 organization initially established through a $60 million allocation from the United States Congress. Activities focus on the evaluation of brain structure,

40:04function, and health and disease, I will faculty appointments in the departments of neurology and psychology at the University of New Mexico. Activities include teaching and student and faculty mentoring. I am the Director of Research for Beyond Barriers Therapeutics of virtual pharmaceutical company developing novel treatments for TBI alphavirus exposure and organ phosphate poisoning. I am the Chief Scientific and Research Officer for the Research and Recognition Project which has developed a new therapy for PTSD. I have over 30 years of experience in the neuro-scientific evaluation of the neurobiological status of clients with a wide range of conditions, including neurodevelopmental disorders, autism, ADD, ADHD, and reading disorders. Epilepsy, Traumatic Brain Injury, PTSD, and Tainitis, as outlined in my attached CV Exhibit One, I have co-authored more than 100 scientific articles and book chapters. In support of my work, I have received more than

41:1010 million in funding from federal, state, and philanthropic sources, including the National Institutes of Health and National Science Foundation and the Department of Defense. This includes almost 4 million specifically awarded for my work on neurodevelopmental disorders, including autism. I have been asked by the Defense Council in the matter of the state of Idaho, first Brian Coburger, to perform quantitative, volumetric analysis of Mr. Coburger's brain and to comment on the neurobiological nature of his various conditions. In formulating my opinions and matters like this, I routinely rely upon my training and experience, the scientific literature, and client-related data, and reports collected directly by myself, or other professionals, including radiologists, neurologists, psychiatrists, and psychologists. It's my understanding that Mr. Coburger has received several diagnosis for appropriate and qualified doctors for purposes of this declaration, for this motion I am addressing only three. A. Autism Spectrum Disorder Level 1

42:15without accompanying intellectual or language impairment, B. Developmental Coordination Disorder, and C. Obsessive Compulsive Disorder with Absin Insight. It's also my understanding that the state of Idaho has requested that the court issue an order in Liminei Prohibiting Defendant from Offering Testimony, Regarding Neurosycological Evaluation, and Psychiatric Evaluation of the Defendant in the Guilt Innocence Phase of the Trial. The state argument relates to Idaho Code Section 18-07, which provides that mental condition shall not be a defense to any charge criminal conduct, except expert evidence on the issue of any state of mind, which is an element of the offense. Idaho Code 18-071-3 In considering this, it's therefore becomes relevant to distinguish diagnosis and evaluations related to mental versus physical conditions. I have therefore been asked to discuss the relevant scientific evidence with respect to ASD, DCD, and OCD. As an expert neuroscientist,

43:21I recognize three general categories of conditions that can impact a person's functional abilities and state of mind. Almost all conditions associated with psychological dysfunction have some neurobiological correlates that impart vulnerabilities, but in most instances these are not immediate causative factors. For example, consider a person who experiences substantive depressive symptoms following a divorce. Unlike major depressive disorder, which has strong neurobiological underpinning, the most likely appropriate diagnosis in this situation would be an adjustment disorder. Adjustment disorders can be associated with some biological dysregulation, but few would argue that adjustment disorder is not a mental condition. In contrast, some state of mind changes clearly reflect physical biological factors. For example, ALS sometimes leads to mental health impairments such as violence and disinhibition. These are most commonly a direct consequence of structural

44:23and functional disruption of frontal lobe brain circuits as induced by the ALS. Here the psychological disturbance should not be considered a mental condition as it has clear neurobiological basis separate from extreme psychological factors. Finally, there are some conditions in the gray area with strong neurobiological and psychological underpinning. For example, a racnephobia, fear of spiders, has both biological and psychological underpinnings. It's clearly triggered in relationship to external factors, but it reflects an abnormal biological response of the brain. As outlined by Dr. Orr in Exhibit D7B, Mr. Coburger has multiple diagnostic conditions identified by qualified doctors. In my opinion, these conditions span the range from neurodevelopmental to mental conditions. Herein I will discuss the subset of three conditions, autism spectrum disorder, developmental coordination disorder, and obsessive compulsive disorder,

45:23which are predominantly neurobiological rather than mental, and relevant to the guilt innocent phase of the trial, as argued by Council, references are provided in Exhibit 2. The other conditions may be relevant to ascending phase of a trial, if this case precedes that far, and therefore will be discussed in a separate report. Autism spectrum disorder, level 1, without intellectual or language impairment. Mr. Coburger has a current diagnosis of autism spectrum disorder. On the one hand, his overall level of intellectual function and his general language skills have been adequate to allow him to complete a master's degree, but neuropsychological evaluation reveals deficits in several subdomains, including motor skills, processing speed, and executive function. Perhaps most importantly, he demonstrates obstinative impairments in social cognition that day back to early childhood. As noted by Dr. Orr, he demonstrates anomalies and nonverbal communication, EEG poor integration of verbalizations and eye contact, limited use of

46:29descriptive gestures, restricted range of effect, and atypical tone. Poor social emotional reciprocity, EEG self-focused conversation, awkward interaction, limited perspective talking, limited sharing of effect, emotions of others, and impaired relationships, EEG superficial, and logical descriptions of relationships, poor insight, into his role in relationships. All consistent with autistic patterns. Whereas most patients with autism spectrum disorder, ASD demonstrate intellectual and language impairments, it's well established that there is a significant minority of patients like Brian, where the dominant dysfunction is selectively seen with respect to social cognition. In part, this likely reflects the neurobiological reality of relatively distinct brain networks for language versus social skills. Whereas there was a brief period of history where autism was thought to be a psychological response to environmental factors, EEG refrigerator parents, for more than half a century, it has been almost universally recognized

47:35to have a strong biological basis, indeed, although ASD diagnostic criteria are most formally described within the DSMV, diagnostic and statistical manual of mental disorders, the DSM clearly indicates the ASD to be a neurodevelopmental disorder. Evidence at the ASDs are of a neurodevelopmental and physical biological origin and not a mental condition caused by external psychological factors or events, comes from several sources, including timeline of development, with typical onset prior to three years of age, with many parents recognizing signs as early as six months of age. Very strong heritability estimated concordance in identical twins, 60% with some chromosomal abnormalities leading to very high incidence of comorbid autism, high comorbidity, with other clearly neurobiological conditions, including epilepsy, more than 30% of people with ASD experienced seizures by adolescents

48:38and upwards of 60% show epileptic form activity on EEG, strong evidence of brain abnormalities through autopsy imaging, electrophysiology, and neurochemical assessments. For Brian specifically, there is objective evidence of disrupted brain structure and several nodes of the social network, as outlined in detail in Exhibit 3, volume metric analysis of magnetic resonance, imaging data for Brian's brain, reveals several brain areas to demonstrate volume within the lowest 10th percentile, as compared to all sex and age range plus five years. Match neuro-typical control subjects drawn from a normative database of over 10,000 subjects. Of particular relevance is evidence of reduced volume of the left and right fused of form gyrie, the left and right orbital frontal area, and the left temporal pole, and the right anterior singulate area, all regions within the brain social network. The fuziform, especially of the right, is especially important for the recognition and

49:42evaluation of the emotional characteristics of faces. The orbital frontal cortex plays a key role in the emotional regulation of behavior, the temporal pole plays a crucial role in social and emotional processing, especially with respect to the integration of complex perceptual inputs and visceral emotional responses. The anterior singulate is critical for social decision-making and supporting empathy, pro-social behavior, and processing information about others' motivations. Developmental coordination disorder. DCD is a neuro-developmental condition that can occur with but which is distinct from the ASDs. Also known as dyspraxia DCD is characterized by impairments in the development of motor coordination including dexterity, limb speed, and gross and fine motor skills. Like the ASDs, dyspraxia has high heritability on the order of 70%, a strong indication of biological etiology. DCD is associated with structural and functional disruption of motor control

50:49and coordination networks with minimum modulation by psychological factors. It is noteworthy that Brian continues to show evidence of significant motor and coordination issues as revealed through formal testing with Dr. Orr. Obsessive compulsive disorder with absent insight. Brian reportedly developed compulsive handwashing behaviors as a young child, a fear of getting things in his eyes, and avoidance of germs. There is a substantial evidence that OCD is primarily a neuro-biological disorder, although it is not necessarily a neuro-developmental disorder. Evidence supports for its biological basis include a large study of over 15,000 twin pairs indicates the heritability of OCD to buy about 47%, OCD can actually be caused by certain viral infections including strep infection which can lead to autoimmune condition pandas. Imaging studies also demonstrate a clear neurobiology for OCD with disruption of the corticose,

51:51striotto, philomo, cortical loop. Importantly this loop includes the anterior singulate and orbital frontal cortesses, regions and overlaps with a neurobiology of A.S.Ds, and which were found to be disrupted on Brian's MRI. The severity and timing of OCD behavior is admittedly partly influenced by psychological factors including stress. Also the specific nature of each person's obsessions and compulsions probably relate to learn factors rather than core neurobiology. In general OCD is not considered to be neuro-developmental condition per se, but it is biological in nature, and then Brian's case manifested early in development. In summary based on my training experience review of the scientific literature and the available data and reports on Mr. Coburger, I believe that the conditions discussed above are a clear neurobiological and physical ideology. Brian's developmental core nation disorder and autism spectrum disorder are specifically neuro-developmental conditions with physical origins

52:54in his brain, structure and function. His OCD also has predominantly neurobiological basis, although it's modulated by psychological factors. This document was signed on March 16, 2025, and it was signed by Dr. Lawine. All of the information that goes with this episode, including my contact information, can be found in the description box.