Mega Edition: Kohberger Accuses The State Of Disclosure Violations and Idaho Responds (9/3/26)

0:00What's up everyone and welcome back to the program. In this episode we're diving right back into those core documents up in Moscow and we're going to be taking a look at the state's response to defendants' motion to preclude the death penalty and adopt other necessary procedures. Case number CR0124-31665 State of Idaho plaintiff, first Brian C. Coburger, the defendant. Comes now, the state of Idaho buy-and-through the Leita County prosecuting attorney and hereby responds to defendants' motion to preclude the death penalty and adopt other necessary procedures due to the state's numerous disclosure violations. The state in corporate states response to defendants' motion in Lemonae number two, vague and undisclosed expert testimony in this response. Argument 1. The state is complied with Idaho criminal rule 16. The controlling authority for discovery in Idaho criminal rule 16, ICR 16, A, which states,

1:00as soon as practicable, after the filing of charges against the accused, the prosecuting attorney must disclose to defendants or defendants counsel any material or information in the prosecuting attorney's possession or control or that later comes into the prosecuting attorney's possession or control that tends to negate the guilt of the accused as to the offense charged or that would tend to reduce the punishment for the offense. ICR 16, A, the rule goes on to discuss that this obligation extends to information in the possession or control of others who have participated in the investigation and the prosecutor must disclose 404B information. Under ICR 16B, upon written request from the defendant, the prosecutor must disclose one statement of defendant, two statements of co-defendant, three defendants prior record, four documents and tangible objects, five reports of examinations or tests, six witnesses, seven expert witnesses, eight police reports, nine digital media recordings,

2:03ten other additional materials ordered by the court ICR 16B. Under rule 16, there is a continuing duty to disclose which continues even through the trial. If a party discovers additional evidence or evidence of an additional witness or witness is or decides to use additional evidence, witness or witnesses, the evidence is automatically subject to discovery and inspection. ICR 16J. In such a case, the party must immediately notify the other party to allow that party to make the appropriate request for additional discovery or inspection. Upon written request from the defendant, the state must respond within 14 days of service with one of the following. One, the response has been complied with, two, there is no objection and the defense will be permitted discovery at a time in place certain, or three, the state objects to all or part of the information with grounds for the objection. ICR rule 16F1 failure to respond within 14 days constitutes a waiver of any objections

3:09and is ground for sanctions by the court unless there is a showing of good cause or excusable neglect. ICR 16F2. Lastly, rule 16 provides that if a party fails to comply with a request for discovery, the court may, one, order the party to permit discovery or inspection, two, prohibit discovery, or three, enter such other order as it deems just in the circumstances. ICR 16K. The choice of an appropriate sanction for failure to comply with a discovery request is within the discretion of the trial court. State V. Matthews 124 Idaho 806 864 p.2 d6 44 appeals court 1993. In the case at hand, the state is complied with Idaho criminal rule 16. Defense Council has entered notice of appearance on January 11, 2023, starting on January 18, 2022, the state began providing discovery pursuant to rule 16A. Discovery was provided generally as follows.

4:13Documents, including reports were bait stamped and sent as PDFs, baits pages 1 through 15,914. Photographs were bait stamped and sent as PDFs. Originals of the photographs were sent on a hard drive pursuant to later discovery request. Photo baits 1 through 13,832. And audio and or video files were assigned an AV file number and placed on the hard drives, AV 001 through AV 0000989. PDFs were sent automatically. Larger files, including audio and video files, which could not be emailed, were put on hard drives. The hard drives were routinely picked up by the defense council or her staff. Early on, the parties had to determine how to discover massive amounts over 50 terabytes of data, which was stored at the MPD forensic lab. This included data such as surveillance videos, phone extractions, third party data,

5:14call detail records and computer extractions. The amount of data recovered required the MPD, the state, and defendant to acquire large servers capable of storing this data. The defendant acquired and provided a server to the MPD and the information was copied, verified and placed onto the defendant's server. This process, acquiring, copying, verifying, etc, took several weeks. This was turned over to the defendant around April 4, 2023, almost two years ago. Discovery was provided continuously as the state received it from various agencies and it was promptly turned over to defendant in the same fashion it was received. The state and defendant are on the same playing field in this regard. Turning information over in the same way, it was received allowed one, the discovery to be sent promptly, and two, the state to track what was turned over, the state learned early on, if we moved or changed files, then it was much more difficult to determine what had been discovered

6:15or to answer any questions from defense. On January 10, 2023, the state received a written request for a discovery pursuant to Rule 16B. This was followed by 22 supplemental requests throughout the course of the case, in addition to six motions to compel. The state replied to each request in accordance with Rule 1641 within the requisite 14 days. Further, the state not only met the demands of 1641, but supplemental, and supplemented those requirements by providing the defendant with a location of the requested discovery, and the date discovered within each of those initial responses. On September 4, 2024, the state filed state's response and supplemental responses to defendants' requests for discovery. This was accompanied by 15 attachments, approximately 320 pages, which detailed the location, the description, and the date the discovery was provided to the defendant. In essence, defendant was provided

7:16319 pages of indexes for each of their discovery requests. See state response to supplemental responses to defendants' requests for discovery, because of its volume the state is not attaching this filing to this response. The state's initial discovery deadline was September 6, 2024, approximately 11 months before trial is scheduled to start. As noted above, the state also has a continuing duty to disclose information until the completion of trial. As such, the state is continued to disclose information, which came to light after September 6, 2024. The state is complied with Idaho Rule 16. The defendant has not provided any basis for ICR rule 16 violations, much less sanctions. To the state is complied with Brady, Vers, Maryland, and its defense arguments rest on a misunderstanding of the state's Brady obligations. Under Brady, the prosecution has a duty to disclose evidence that is both favorable to the defense and material

8:19to either guilt or punishment. 373 US at 87. There are three components of a true Brady violation. The evidence that issue must be favorable to the accused either because it's exculpatory, or because it is impeaching that evidence must have been suppressed by the state either willfully or inadvertently and prejudice must have ensued. Pregidists and materiality are used interchangeably in the context of Brady, state vs. Campbell, 2022. When assessing materiality, the question is whether the favorable evidence would reasonably be taken to put the whole case in such a different light as the undermine confidence in the outcome. ID at 247 2019. Brackets and original, such evidence is material if there is a reasonable probability that had that evidence been disclosed to the defense, the result of the proceeding would have been different. ID quoting Strickler vs. Green, 527 US 263 1999. When the Brady issue is one of

9:23delayed disclosure, the question is whether earlier disclosure would have created a reasonable doubt of guilt. Thumb 165 Idaho 423 4447 p.3d at 871. Quoting United States vs. Burke 571 f.3d 1041 1054 10 circuit 2009. Brady is an obligation of not just the individual prosecutor assigned to the case, but all the government agents having a significant role in investigating and prosecuting the offense. State vs. Gardner 126 Idaho 428 433 1994. See also Kyle's 514 US 419. The individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police. However, a prosecutor is not required to disclose evidence the prosecutor does not possess or evidence of which the prosecutor could not reasonably be imputed to have

10:23knowledge of or control. State vs. Avlar 132 Idaho 775 781 1999. Quoting United States vs. McFarland 759 f.supp 1163 1168 PA 1991. Even information held in the minds of government witnesses is generally not imputed to the prosecution, unless that information was discovered by police or prosecutors. Avlar 132 Idaho at 781. 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, 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 picking up where we left off with the state's response to defendant's motion to preclude the death penalty and adopt other necessary procedures. In this case, the state has provided all material information in its possession to the defendant and will continue to provide any additional material information that

11:27may come to light. The defendant states Mr. Coburger requested additional discovery related IGG. The defendant claims the state has refused to provide this information. However, this information is controlled by judge judge sealed order for disclosure of IGG information and protection order. Further, the specific information is not material. It has no bearing on the defendant's guilt or innocence. Any issues related to IGG are now moot in the light of defendant's motion in Lehman A regarding IGG evidence and the state's concurrence that no IGG evidence will be offered at trial. As noted above, almost all discovery was provided within a time span of three and a half years prior to trial, first discoveries in January 18, 2023, up until 11 months prior to trial, discovery deadline of September 6, 2024. The state has requested information regarding the defendant's possible defense so the state could make specific inquiry for information that could

12:28be material to the defendant, i.e. exculpatory, to date the state has not received any information which would aid in the process of identifying possible exculpatory information. Defend in claims the state has violated Brady by failing to provide an index of all discovery materials, but Brady does not require the prosecutor to make a complete and detailed accounting to the defense of all police investigatory work on the case. State verse horn 101. Idaho 192-195-1980 quoting more verse Illinois 408-US 786-795-1972. Moreover, the state has provided approximately 320 pages of indexes in a response to the defendant's 411 discovery requests. In addition, the defendant has been provided a searchable index for all FBI material. The state has continuously facilitated the defendant's review of discovery materials. The state also affirmatively sought

13:29exculpatory information, tasking investigators to pursue avenues of potential Brady material, and documented such as supplemental reports that are readily reviewable. The defendant at best is making a bald-faced assertion of improper conduct by the state without pointing to any factual basis. In the end, the state is in no better position to identify potentially exculpatory evidence than the defendant, the state will, and has continued to abide by the requirements of ICR 16 and Brady. Mr. Coburgers due process rights have not been violated. On August 8, 2024, the defendant was provided a copy of the FBI's one drive database related to this case. This included a master list of items in an Excel format which was searchable. The defendant argues that the state has not provided contents of various items, it intends to rely upon a trial. The state notes the deadline for exhibit lists and when is lists or due April 21, 2025. In addition, the state has completed initial and supplemental

14:36expert disclosures pursuant to the court's scheduling order and January 23, 2025 instructions. Three, there are no grounds to preclude the death penalty. This court should reject the defendant's request to strike the death penalty as a sanction for a discovery violation that does not exist. See, Super O'Parte, too. Even those courts that have utilized that sanction recognize that it was extreme and only utilized because no other remedy was sufficient. For example, in Idaho, versus Lori Valodable, the state failed to timely disclose conversations between the defendant and co-defendant. See YouTube, judge Grant's Lori Valodable's motion to dismiss the death penalty in her case. March 21, 2023 at the 445 mark. The state's discovery deadline was prior to February 27, 2023. The state disclosed discovery on February 27, 2023, which the court noted was late. On this date, the state discovered gelhouse recordings,

15:37phone calls and video visits. In addition on March 13, 2023, the state discovered several more hours of gelhouse recordings. Statements of defendant and co-defendant, ID at 13 minutes. Over 100 hours of audio and video was disclosed after the discovery deadline. The defendant submitted an affidavit from her mitigation expert detailing the prejudice due to the late disclosures, ID at 758. These disclosures were two weeks before the jury's selection was set to begin on March 27, 2023. The court noted the problem here is the timing problem, ID at 1550. The defendant's trial was set to begin April 3, 2023, and the defendant had not waived her right to a speedy trial. The court noted that if the disclosures had been made prior to the discovery deadline, February 27, 2023, or one day late, it would be difficult for the court to determine that prejudice would arise, ID at 1633.

16:38Presiding, Judge, District Court, Stephen W. Boystated, the court must determine here that the defense has, in fact, demonstrated material prejudice, resulting from the late disclosures. The prejudice has occurred because of the proximity of the trial, the volume of the discovery, and the inability of the defense to adequately review that discovery before trial begins. ID at 1945. Further, having determined that prejudice has resulted due to the late disclosures' discovery, the court must next consider what courts of action, if any, is necessary, ID at 2034. Judge Boyst held, because the court has not found any willful conduct on the part of the state. The court is not primarily concerned with any sort of sanction or punishment, but what the court must address is the appropriate remedy to try to mitigate the prejudice that has been caused by the late disclosures. Or, narrowly, a logical remedy would exist here, and that would be a continuance of this trial. This has been proposed

17:40by the state as one solution, and the state has proposed to mirror a continuance in the companion case of the Chad Daybell case. However, here that's an option I can consider, because this case, the defendant, has unequivocally asserted her right to a speedy trial. In determining whether a speedy trial is violated, one of the major factors is the reason for the delay. The reason for the delay here rests on the state, and can't be counted against the defendant to justify a delay of her trial in this case. If I were to delay this trial based on an issue caused by the state, I believe that would violate her fundamental and constitutional right to a speedy trial. And just interject here, this is why we're going through the Laurie Valow trial once again in some of those vault episodes that I've been posting. That way, you folks who might not have followed that trial get an idea of how the system works up here in Idaho, and what we could probably expect in the Bryan Coberger trial. All right, back to the document.

18:42The judge noted that the jury selection was set to begin the following week at 2309. The court found that excluding witnesses or evidence was not reasonable or fair to the state, idea 2358. That left the court with two options, one striking the death penalty, or two, dismissing the case, idea 2408. The court determined that dismissing the case would be too severe of a sanction here, idea 2416. Judge Boyce determined that this was a right issue, and noted that all other options were considered before coming to this decision. Judge Boyce held noting a heightened scrutiny. As an appropriate discovery sanction, the state will be precluded from seeking the death penalty at trial, and the states may second 2022 notice of intent to seek the death penalty will be stricken, idea 3319. The court reiterated this was not imposed to penalize the state, but rather to ensure the constitutional right of the defendant was protected, idea 3335.

19:46The facts before the court in the Coberger case are nothing like the facts before the court, in the Valo case. Unlike in Valo, where the defendant pointed to, over 100 hours of disclose jail calls and visits, that may or may not contain Brady material, the defendant is not pointed to any particular evidence, he believes the state is failed to disclose, moreover as the court and Valo explained, the sanction and Valo resulted from the court not having other choice because the defendant had not waived her right to a speedy trial. Here the defendant has waived his right to a speedy trial. Even if this court finds the state violated its Brady obligation for failing to provide unspecified evidence, the court can fashion more appropriate remedies in this case. In essence, the defendant is arguing that in cases that involve a large amount of discoveries such as this one, the death penalty cannot be pursued because there is so much information for defense counsel to review prior to trial. That is absurd and such application would lead to

20:49absurd results. Despite his repeated assertions, the defendant is not demonstrated any actual prejudice because there is none. Defendant's request is without merit and should be denied. Conclusion. The state requests that the court find that one the state has abided by the requirements of the ICR, two, the state has not violated Brady vs. Maryland in its progeny. Or Mr. Colbergers do process rights, there are four three, there is no basis to preclude the death penalty. Respectfully submitted this 17th day of March and signed by Ashley Jennings. All of the information 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 headed back out to Moscow and we're going to dive right back into those court documents. And on this installment, we're taking a look at the reply to the state's response to defendants' motion to preclude the death penalty and adopt other necessary procedures. Case numbers CR01-24-31665 state of Idaho plaintiff vs. Brian C. Coburger, the defendant.

21:58Comes now, Brian C. Coburger, buying through his attorneys of record and hereby replies to the state's response to his motion to preclude the death penalty and adopt other necessary procedures. RE-DISCLOSURE Violations The volume of discovery in this case is exceptional. One of the last highly publicized death penalty cases in Idaho involved three victims killed in severed incidents and amongst long investigation spanning multiple states. The discovery in that case totaled less than five terabytes. See declaration of Mary Goody at 7 state vs. Laurie Valo Debel filed March 14, 2023, attached as Exhibit 1. Stating that discovery in the case exceeds four terabytes in a declaration filed two weeks prior to the trial. The discovery provided in this case more than 68 terabytes dwarfs that number. It's not only an extreme outlier in Idaho but in the entire country. Quartz often refer to cases involving less than five terabytes of data as containing a very significant volume of discovery,

23:02CEG United States vs. Salier CRS 10-0061-LKKK 2011 WL 1466 887 at 1. It's probably no exaggeration to state that one to two terabytes of information are involved. Of course, when one considers the terabytes of information in this case are comprised of thousands and thousands of individual records. The massive documentation acquired in the investigation and turned over in discovery is extreme United States vs. Puckett CR 42-0015-LKK at 2 Eastern District of Tennessee April 22, 2015 Discovery in this case is voluminous involving half a terabyte of information. United States vs. Valdez Morales, number 315-CR 56-2016-WL-919-02-9 Eastern District of Tennessee March 4, 2016. Mr. Rozkind stated that the four terabytes of

24:07discovery, the equivalent of about 10 million files or documents, was the largest amount of discovery of any criminal case in which he had ever been involved. United States vs. Hofstetter At 14 Eastern District, Tennessee February 9, 2018 Discovery in this case is massively voluminous consisting of well over a terabyte of data, approximately 50 compact disc containing audio and video recordings, and numerous image computer hard drives. United States vs. Kony, 2 22-CR 147-2023-WL 580-7835 Eastern District, Virginia September 7, 2023. Granting a continuance in criminal case where the discovery totaled five terabytes, even where prosecution had diligently assisted defense counsel in navigating the voluminous discovery materials. To put this into perspective, it would take hundreds of reviewers several years to review the discovery in this case. One terabyte is generally estimated to contain 75

25:10million pages, and therefore a one terabyte case could amount to 18,750,000 documents, assuming an average of four pages per document. Further, assuming that a lawyer or even paralegal can review 50 documents per hour, a very fast review rate, it would take 375,000 hours to complete the review. In other words, it would take more than 185 reviewers working 2,000 hours each per year to complete the review within a year for one terabyte of data case. Virginia, I Turner, Managing Digital Discovery in Criminal Cases 109, Criminal Law, and Criminal 2019. One terabyte is estimated to hold around 1,000 hours or about 40 days of video files, extrapolating that to this case, even assuming for the sake of simplicity that all 68 terabytes consisted of video files, which take up significantly more space than documents and audio files, it would require 2,560 days or more than seven years to review all of the footage.

26:17Contrary to the state's assertion, the prosecution and defense are not on the same playing field, states response at 4. The prosecution has had the assistance of hundreds of investigators, law enforcement officers, prosecutors, and administrative staff from several different state and federal agencies working on this case and collecting, reviewing, and analyzing evidence. In addition to sheer manpower, the prosecution is using expensive, technologically powerful case management software that the defense does not have access to. According to its website, their case management system, Prosecutor Byte Carpool, allows for prosecutors to tag individuals in the case and pull up all documents related to them, both within a case and across cases. Has a global search function to search all discovery in case documents at one time and even generate reports from such searches, and allow external individuals and agencies read only access to the case and the ability to upload documents directly into the case system. See Prosecutor Byte Carpool, PBK, case management software with efficiency,

27:22enhancing features, person-centric, comprehensive search and organization of data by person, every time you update information on this person, the system automatically aligns the previous information, and information features enable your prosecutors to do more and less time, sifting through search results, and going through mountains of paperwork just to find one piece of information, saps valuable time that could be spent on more important tasks. Prosecutor Byte Carpool provides a wealth of features designed to not only find what you're looking for fast, but also to easily generate a report and share it with relevant parties. Prosecutor Byte Carpool has a powerful relational database that features broad search capabilities, so you can find your case information quickly and easily. PBK integrates with the court, law enforcement, software, and more, external agency portal. External agency portal allows your justice partners, view only privileges, to basic case information, and the ability to attach and submit supplemental media documents to

28:26the prosecutor's office electronically. The system also has the capacity to integrate with advanced evidence management software, including axonjusticevidence.com, which has artificial intelligence capabilities, including automatic transcription of audio and video files. Axon Evidence user and administrator reference guide, axon, auto transcribe at page 174. No more having to watch every moment of digital evidence instead users can simply scan the auto transcript to quickly survey what happened and jump to the significant section by clicking on the spoken words. Despite access to sophisticated technology, the prosecution has not organized the discovery in a way that facilitates review. PDF files are provided without names that correspond to their contents. Individual PDF files contain several documents grouped together into one file. For example, a single PDF file might contain 17 different documents and be labeled

29:26co-burger unredacted 550 through 750. Thus, the defense must manually scroll through each PDF file to discern the number and type of documents it contains. Because the state protects each PDF with a password, it's extremely cumbersome to then separate and combine PDF into individual documents, which would allow the defense to rename and organize the documents individually. The state is refused to either provide the password or cease password protecting the PDFs despite several requests. While redacted documents are sent through the case management system, integrated email system, the state provides hard drives containing audio and video files without transcriptions and unredacted reports that the defense must pick up in person. They must then be manually loaded into a shared storage file for defense team access. The subfolders of video and audio files must be recreated in the defense system one by one and then files uploaded into each. Because transcripts were not routinely provided, even once these videos or audio files are uploaded into the defense

30:31system, they are not searchable. Without the sophisticated technology that the prosecution has access to, the defense cannot conduct global searches of the documents turned over nor tag the individuals or topics in order to catalog or group relevant documents together. It's necessary to individually open up in a PDF in order to use search text and therefore the defense team cannot search the discovery unless it knows that something already exists and approximately where to find it. The state's assertion that it has provided an index of the discovery is misleading. The index is really an accounting of hard drives and groups of files and the dates that were turned over. It does not address the overarching problems regarding lack of organization labels and clarity about what is actually being discovered. For example, within the discovery response to the state likens to an index, there is a chart that identifies almost the full range of videos provided, in this case, nearly 1000, in which the only descriptions are audio video files,

31:34see state's response and supplemental responses to defendants discovery requests for discovery September 4th, 2024 at 25. The same exists for large numbers of documents, for example, nearly 16,000 pages of bait stamp documents is described as documents and reported and the hard drive given on a specific date contains FBI one drive production number redacted. Idea 3. There are also several places in which the state asserts it has provided something related to a specific topic and then provides examples specifically stating that the relevant documents and video audio files include but are not limited to those listed making it impossible to know whether other relevant documents exist within the 68 terabytes of discovery. While there are some entries that provide more detail and can accurately be likened to an index such as a list of reports by name, beginning on page 7, this accounts for an extremely small fraction of the discovery provided in the case.

32:35Alright, we're going to wrap up part 1 right here and in the next episode we're going to finish this one 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 picking up where we left off with Brian Coburger's reply to the state's response to defendants motion to preclude the death penalty and adopt other necessary procedures disclosure violations. Nor is the state facilitated defense review of the discovery in any other manner such as by providing a list of hot documents or by outlining the evidence they intend to use in a presentation to the defense. These types of efforts are common in large cases even when those cases contain multitudes less discovery than here. CEG United States vs. Bucy 521 CR9 2024 SD Georgia November 25th 2024 In case involving 15 terabytes of data the government took several steps to facilitate reviewing

33:36including one providing an inventory of discovery to organizing the discovery by seizing and producing agency by category or type of evidence by individual and by H2A petitions three offering assistance to defense council in reviewing discovery explaining what was produced and explaining how the productions were organized and for meeting with defense council to present a PowerPoint outlining the evidence against the client United States vs. skilling 2009 the government provided a searchable electronic file produced in index of hot documents indicating the documents that were important to its case as well as the documents that included potentially ex-cultivatory evidence and created a number of other databases to assist the defense review of the evidence United States vs. Parade. Number 9 60129 CR 2010 WL 228 8013 Southern District, Florida January 14, 2010

34:39The government is separately directed defendants to the materials it deems to be most relevant to this case and it has given defendants an index to the remaining searchable database to enable defendants to focus their review efforts on the documents most likely to be relevant to defendants defense. Moreover, the United States has provided defendants with the same search capabilities upon which the government must rely in reviewing the materials in their database. It is also clear that the defense team does not have access to the number of support staff available to the government, even with a searchable database either from multiple sources or a common database, calling the pertinent information with a degree of accuracy will take time. The volume and format of discovery, which has been a constant issue in this case, is the backdrop to the present circumstances requiring relief. The state wants to pan away the problem by reducing it entirely to the size of the case, see states response at 10. In essence, the defendant is arguing that in cases that involve a large amount of discovery

35:43such as this one, the death penalty cannot be pursued because there is so much information for defense counsel to review prior to trial. But the death penalty must be precluded because whether by design or inattention, the defense continues to be inundated with late discovery and late expert disclosures mere months prior to trial, creating an untenable situation. This court set a discovery deadline in September 2024 and an expert disclosure deadline on January 2025. Pursuant to that scheduling order, the defense would have 10 months to engage with discovery and determine priorities and preparation for trial, and more than six months to be aided in that review by completed expert disclosures largely laying out the state's case. But the state is not abided by these deadlines, for example, the state just turned over discovery that the defense specifically asked for more than a year ago. Among the documents are things dated November 2023, things that existed long before the state's discovery deadline and would have

36:45been turned over more than a year ago. And the late expert disclosures continue to roll in, even after the motions in Lemanay deadline. As one court explained, each disclosure creates a cascading set of responsibilities for defense counsel, in addition to reviewing its contents, defense counsel must also file any relevant pre-trial motions. The court must hold hearing on those motions, an issue in order, and then the defense must integrate the information and prepare for trial and light of those rulings. United States First Covington, 315CR23 2015 WL-3883522 at 2, Eastern District, Tennessee, June 24, 2015. Granting a continuance in a criminal case involving for terabytes of data described by the government as an immense universe of discovery. Thus, each and every late disclosure requires the attention to be turned to the new disclosure and to the attendant follow-up investigation, rebuttal, and or litigation, and away from preparing for trial in a streamlined manner.

37:50There is truth to the assertion that the facts before the court and the co-burger case are nothing like the facts before the court and the valot case. States response at 10. They are significantly worse because the state's discovery abuses. As the state correctly points out, the judge precluded the death penalty in the valot day boule case after the state turned over 100 hours of jail calls one day after the discovery deadline and two weeks before trial. Though it would technically be possible to listen to all 100 hours of recordings in two weeks, the court recognized that the size and complexity of the case mattered. The court concluded that the problem here is a timing problem and that that prejudice has occurred because of the proximity to trial, the volume of discovery, and the inability of the defense to adequately review that discovery before trial begins. States response at 8.9, quoting video proceeding of the hearing. The mitigation specialist declaration sees state to response at 8. It explains the prejudice of late disclosures and a case already involving

38:55four terabytes of discovery. Sifting through such a huge number of investigative documents, audio and video files, and metadata, and other scientific evidence, and determining how each piece of evidence applies to either the fact or mitigation or both, size of the defense case, is a very time-consuming job. There is absolutely no time to begin investigating new information after determining how it relates to the mitigation of the case. Declaration of Mary Goodie Exhibit A at 7. The court determined that precluding the death penalty was less severe than excluding some of the state's witnesses or evidence and that precluding the death penalty under the circumstances was consistent with a heightened scrutiny and due process guaranteed to defendants in capital cases. Here the discovery problems have existed throughout this case requiring near constant litigation and significant time. The volume of discovery is an extreme outlier, even in other cases involving massive amounts of data. The state is not complied with the court's deadlines, and thus is

39:57derailed Council's review of the state's case and evidence in the months before trial. Like in the Valo-Daybell case, but in a much more extreme fashion, prejudice has occurred because of the proximity to trial, the volume of discovery, and the inability of the defense to adequately review that discovery before trial begins. The due process clause requires a balance of forces between the accused and his accuser, C. Wartius vs. Oregon, 412 US 470, 474 1973. The 8th amendment requires a heightened standard to be applied to capital cases, and therefore lesser prejudice is required to preclude the death penalty in an effort to balance the forces of due process. C. United States vs. Lopez, Matthias, 522 F.3D150, 154 and 9 for a circuit 2008. In a capital case, when the stakes are so high, a smaller quantum of prejudice may justify a sanction. And as discussed above, striking the notice is not quite as serious as dismissing the indictment

41:02altogether, and so perhaps still as prejudice is required. If this proceeds as a non-capital case, heightened due process is not required, nor will heightened scrutiny be applied on appeal if a conviction results, and thus all parties are more likely to obtain a final outcome at trial. Thus the prejudice to the prosecution, and precluding death, is relatively small. They can still seek a death in prison sentence, on the other hand the prejudice to Mr. Coburger in proceeding to a capital trial under such circumstances is unconstitutionally grave. While the prosecution seemingly suggests, without having the fortitude to make the outright request, a continuance as a remedy, states response at 9 and 10, that is not a fair nor a sufficient remedy. Mr. Coburger is being held without bond. It's patently unfair to restrict his freedom for months or years to come in order to fix a problem that has been and continues to be within the government's control. Moreover, the Six Amendment right to a speedy trial belongs not only to a

42:04criminal defendant, but to the public. There is a societal interest in providing a speedy trial which exists separate from the interests of the accused, Barker vs. Wingo 407 US 514 519 1972. This court has been clear that trial will proceed on schedule, and the state has long been aware of this date. Procluding the death penalty is the only way a 2025 trial can be accomplished in accordance with the state and federal constitutions. This document was dated, March 24 of 2025, and it was signed by Anne Taylor. All of the information that goes with this episode, including my contact information, can be found in the description box.