Idaho murders judge makes critical firing squad ruling for Bryan Kohberger and bans two words from trial

A critical ruling has been made in the case against University of Idaho murders suspect Bryan Kohberger – with the judge blocking the state from using his autism diagnosis to send him to the firing squad. 

Kohberger returned to a courtroom in Ada County, Idaho, Wednesday for a showdown between his defense and the prosecution over critical evidence in the high-profile murder case. 

The 30-year-old criminology PhD student is facing the death penalty for the murders of Ethan Chapin, Xana Kernodle, Madison Mogen and Kaylee Goncalves 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 the three young women shared with two other roommates. 

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 on Kohberger at his parents’ home in the Poconos region of Pennsylvania and charged him with the murders. A not guilty plea was entered on his behalf at his arraignment.

Now staring down the prospect of the firing squad, the two sides are sparring over what evidence jurors should be allowed to see at trial this summer. 

The evidence at issue includes DNA found on a knife sheath at the scene and under the fingernails of one of the victims, the relevance of Kohberger’s autism, the testimony of one of the surviving roommates, the panicked 911 call, and the use of terms including ‘bushy eyebrows,’ ‘murderer,’ ‘sociopath’ and ‘psychopath.’

Dressed in a pale shirt, the suspected mass killer sat silently at the defense table next to his legal team including lead attorney Anne Taylor and new addition, DNA expert Bicka Barlow, in the first day of a two-day hearing.

Bryan Kohberger returned to a courtroom in Ada County, Idaho, Wednesday morning for a showdown between his defense and the prosecution over critical evidence

Best friends Kaylee Goncalves and Madison Mogen (left) were found dead in the same bed in Mogen’s room on the third floor. Young couple Ethan Chapin and Xana Kernodle (right) were found dead in her room on the second floor

Key ruling around Bryan Kohberger’s autism diagnosis 

During the hearing, Kohberger’s defense brought up his autism diagnosis – something that the team has argued as a reason for the death penalty being struck from the case.

Kohberger’s defense told the judge that – if convicted and facing capital punishment – the team will seek to use his diagnosis as a mitigating factor that means he should not be sentenced to death.

His attorney Anne Taylor argued that some of Kohberger’s behaviors such as the way he sits and how he talks for a long time – and that these autism-related characteristics should not be used by prosecutors as reasons he should get the death penalty.

According to Taylor, the state has ‘hundreds of hours of interviews’ with people Kohberger knew at Washington State University and that many of them are saying ‘unkind things’ about him.

Prosecutors told the judge they didn’t plan to do so, saying the state has a ‘lot better evidence’ to argue that aggravating factors amount to capital punishment.

However, the prosecution argued that they should be able to respond if the defense tries to pin Kohberger’s actions and behaviors on his diagnosis.

The judge went on to issue a ruling around Kohberger’s autism, ordering that the state cannot use his diagnosis as an aggravating factor if he is convicted and the trial enters the death penalty phase.

Due to changes to Idaho’s death penalty procedures, the 30-year-old could face the firing squad as a method of execution – a prospect that has been welcomed by some of the victims’ families.

Later in the hearing, the defense and prosecution sparred over Kohberger’s team’s argument that they should be able to cite his autism as an explanation for his demeanor in court.

The state also hit out at the defense’s claims in a recent filing that he has a physical condition that would have made it impossible for him to kill four in the roughly 13-minute timeframe. 

The defense meanwhile argued that jurors should hear about his autism because they also offer an explanation for some of his behaviors both in and out of the courtroom. 

For example, Kohberger’s tendency to wear gloves and disposing of shower curtains are habits due to his OCD and autism, the defense said.

The judge plans to rule on the matter at a later date. 

In Wednesday’s hearing, the judge heard arguments on a string of other motions, after the two sides have submitted a flurry of court documents and requests with the trial date looming.

Bryan Kohberger (pictured during his extradition in January 2023) is facing the firing squad if convicted 

Banned words from Idaho murders trial  

The hearing got under way with the judge agreeing that the terms ‘psychopath’ and ‘sociopath’ should be blocked from the trial, providing a minor win for the suspect. 

Kohberger’s defense began by arguing that the terms ‘murderer’, ‘psychopath’ and ‘sociopath’ and so-called ‘inflammatory evidence’ be struck from the trial.

Taylor told the judge that the defense wants to prevent ‘excessive use of emotional phrasing’ where it ‘puts Mr Kohberger in a position where the jury is already inflamed.’

Judge Steven Hippler quickly made clear that he did not see the purpose of the defense motions – because they simply point to standard courtroom conduct that he expects both sides to follow. 

‘I don’t think I need an order as the rule applies that they are rules which means they will be followed,’ he said.

Taylor argued that it was ‘preventative’ – something that the prosecution argued isn’t necessary. 

When it comes to ‘inflammatory evidence’ such as crime scene photos, Judge Hippler pointed out that the ‘crime scene photos are particularly graphic.’

‘But make no mistake that these murders – whoever committed them – were brutal and were horrific and so I suspect that the evidence reflects that.’

While the judge did agree that the words ‘psychopath’ and ‘sociopath’ could not be used at trial, he said this is because Kohberger has not been given a diagnosis as such – so it wouldn’t be relevant to the case. He told both sides he simply expects them to follow courtroom standards.  

The off-campus home where the four University of Idaho students were murdered on November 13, 2022

Bryan Kohberger’s defense asks judge to show ‘humanity’ for his family

Kohberger’s lawyer urged the judge to find some ‘humanity’ for the accused killer’s family – after the state revealed in a court document that they might call his father, mother or two sisters as witnesses at trial.

Attorney Elisa Massoth told the judge that his family has ‘no interest in helping’ the prosecution in its case against the 30-year-old, as the defense argued they should be allowed to be present for the duration of the trial – even if being called as a state witness.

‘Bryan’s family has no desire to be used as witnesses against him,’ Massoth said.

‘His family loves him and supports him… he is absolutely dependent on them having been in isolation for almost two and a half years’ since his arrest, she said.

She said that, if it wasn’t for financial reasons due to the need to travel from Pennsylvania, they would be in attendance for every court hearing.

Massoth also argued that, due to his autism, Kohberger ‘needs his family here to support him.’

Prosecutors said they planned to call some of the suspect’s family members – but not all. 

It is not clear which family members or for what reason.

But the defense told the court that all of his immediate family members were interviewed at the time of his arrest – and, ‘at best’, they believe the state would only call one of them as a prosecution witness. 

The judge seemed to be swayed by the defense’s plea for him to find a ‘level of humanity’ for Kohberger’s family – but said he would rule at a later date.

‘I can only imagine that the family of Mr Kohberger is devastated by these things. It’s nothing that they did, and their ability to be here to see the trial is important,’ he said. 

‘Shotgun’ approach to alternative suspects 

The two sides also sparred over the defense’s plan to present alternative perpetrators to jurors at trial.

Latah County Prosecutor Bill Thompson told the judge that the defense plans to throw out a ‘shotgun variety of person’s names.’

He argued that there must be a threshold for pointing the finger at other potential suspects and that the information be shared with the state so they can prepare for it at trial.

Kohberger’s attorney Massoth insisted the defense will not take a ‘shotgun’ approach or ‘throw spaghetti at the wall and see what falls.’

Judge Hippler said he would set a date for a hearing to go into this matter more.

Prosecutors say DNA under victim’s nails is NOT Bryan Kohberger’s 

Prosecutors told the judge they do not believe the DNA found under the fingernails of 21-year-old Mogen belongs to the man on trial for her murder.

Prosecutor Jeff Nye revealed that the state’s belief is actually that there would not be DNA from the suspect on the victim.

‘The theory here is that we would not expect the perpetrator’s DNA to be under her fingernails’ due to what the surviving witness saw a masked intruder inside the home wearing moments after the murders.

DNA evidence was found under the fingernails of murder victim Madison Mogen (pictured)

The lack of defensive wounds and the toxicology results of the victim also supported this, he said.

‘We will actually be arguing you would not expect the perpetrator’s DNA to be under the fingernails,’ he added.

The prosecutor made the comments after Kohberger’s defense lawyer asked the judge to block the use of the term ‘inconclusive’ about the DNA – saying it suggests that it could be Kohberger’s DNA.

‘While it might be technically true [that Kohberger cannot be excluded], it’s not an accurate statement,’ Barlow said.

A court filing recently revealed that DNA evidence from three unknown individuals was found under Mogen’s left fingernails.

A DNA expert previously told DailyMail.com it is ‘quite common’ for people to have a mixture of DNA under their nails, especially from people they live with or are close to.

Forensic DNA expert and John Jay College of Criminal Justice Professor Dr Mechthild Prinz explained that people pick up unexplained DNA under their nails by simply touching items.

Kaylee Goncalves family arrive for a court hearing in 2023. The family said they were heading to Boise for the hearings

Separately, the judge struck down a defense motion seeking to ban the use of the term ‘touch DNA’ – a term that one of the defense’s own expert witnesses has used.

Kohberger was allegedly tied to the murders through DNA on a brown leather Ka-Bar knife sheath found next to Mogen’s lifeless body in her bedroom on the third floor of the home.

Touch DNA on the sheath was traced back to Kohberger using Investigative Genetic Genealogy (IGG), according to prosecutors. 

Surviving roommate’s reliability, texts and 911 call 

Other evidence in dispute in the hearing included the panicked texts and calls made by surviving roommates Dylan Mortensen and Bethany Funke after Mortensen came face-to-face with an intruder inside their home around the time of the murders.

The two sides also battled over the gut-wrenching 911 call made by the surviving roommates and friends after Kernodle’s body was discovered just before midday that fateful day – as well as the reliability of Mortensen’s crucial testimony.

The defense wants to block the term ‘bushy eyebrows’ from the trial – the term used by Mortensen to describe the masked intruder she saw in the house. 

Kohberger’s defense reeled off a list of factors that they argued shows Mortensen is not reliable as a witness – including that she admitted she was drunk at the time, told 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.

They 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.

Left to right: Dylan Mortensen, Kaylee Goncalves, Madison Mogen (on Kaylee’s shoulders) Ethan Chapin, Xana Kernodle and Bethany Funke

Between 4.22am and 4.24am on the morning of November 13, 2022, survivors Dylan Mortensen and Bethany Funke exchanged 17 frantic text messages fearing someone was in their house

Prosecutors however argued that her 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 eyes and eyebrows was natural, given that was the only facial feature she could see beneath the mask.

‘Dylan Mortensen is the only living individual who saw the person who’s responsible for these homicides,’ the prosecutor said, adding that makes her ‘relevant to identify the killer.’

A chilling selfie captured by Kohberger around six hours after the murders has been presented by prosecutors as evidence of the suspect’s ‘bushy eyebrows’ at the time of the murders.

The defense is also looking to ban the 911 call from the trial, claiming it is hearsay and pointing to the eight-hour gap between Mortensen’s encounter with the intruder and the call.

Taylor argued that ‘a whole lot more’ went on between those two moments, arguing that Mortensen was editing photos on her phone, using Snapchat, and calling family members.

She pointed to the cellphone records of the two survivors – something that the defense wants to include at trial.

‘This is not someone who was asleep and woke up startled,’ Taylor said.

The judge agreed that some of the 911 call could be hearsay and that not all of it would be allowed to be presented at trial.

Bryan Kohberger snapped this creepy selfie six hours after the brutal Moscow murders

‘Moon and stars’ alibi and cellphone data 

Prosecutors meanwhile want to ban Kohberger’s team from presenting his vague alibi for the night of the murders – claiming he was driving round alone looking at the moon and stars – unless the accused killer takes the stand to testify to it himself. 

In the hearing, Thompson said that the ‘only person who can testify to an alibi if there is an alibi is the defendant himself.’

He argued that a cellphone expert put forward by the defense, Sy Ray, cannot show Kohberger’s whereabouts at the time of the murders because his cellphone was turned off.

The judge ruled that Ray could offer a ‘partial corroboration’ by presenting evidence of where the cellphone was before and after it was turned off.

In a testy moment, Judge Hippler scolded the defense for suggesting that the prosecution had not handed over cellphone evidence – AT&T timing advance records – from November 2022.

Kohberger was not a suspect at that point and so the state claims it does not have such evidence as that data is only available for seven days after the fact.

‘You’ve made some serious allegations against the state about hiding evidence, yet you’ve provided no evidence, zero,’ the judge warned Taylor, adding that such allegations get ‘people disbarred.’

The defense also argued that bodycam footage from a traffic stop carried out by police on Kohberger in the months prior to the murders should be struck from the trial, claiming the state is trying to use it to show a pattern of ‘bad acts’ before the murders.

The prosecution countered that the bodycam is evidence to show Kohberger’s ties to the white Hyundai Elantra which matches the vehicle seen speeding away from the crime scene after the murders.

The judge said he would watch the footage but likely would want to redact some of the footage – but not exclude it. 

The defense also argued against the use of surveillance footage which captured a white Hyundai Elantra driving round the crime scene at the time of the murders.

Amazon purchase of Ka-Bar knife and sheath

The defense also wants to block Kohberger’s Amazon records as evidence, which allegedly show he bought a knife matching the murder weapon months before the slayings. 

The records show Kohberger bought a Ka-Bar knife, sheath and sharpener from the site back in March 2022 – eight months before the murders, according to court documents. 

Kohberger’s Amazon history also reveals that he searched for a replacement knife or sheath in the days after the murders, according to prosecutors.

His defense is arguing that the account was used by multiple people – including his family members – and that AI prompts people to purchase certain items.

The judge cast doubts on this argument – and revealed that the account had tracked the shipping of the item after the purchase. 

Bryan Kohberger is escorted into court for a hearing in Latah County District Court, Sept. 13, 2023, in Moscow, Idaho

Footage captured a white Hyundai Elantra around the victims’ home at the time of the murders

Two days – Wednesday and Thursday – have been set aside by the judge to hear arguments. 

The judge’s rulings on the matters will play a huge role in the evidence presented by both sides at trial, when it gets under way in August. 

It is unclear when Judge Hippler will hand down the remainder of the rulings.

Family members of 21-year-old Goncalves had traveled to Boise for the hearing, facing their daughter’s suspected killer in the courtroom.

‘Part of getting justice for you includes being part of the court hearings. We are heading down to Boise (in the morning) for the next couple of days. Please pray for us,’ the family wrote on their Facebook page. 

Kohberger’s trial is expected to last around three months. 

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