Kohberger indicted in Idaho slayings; Jurors deliberate Masterson’s fate – TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
Bob Motta joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss Lori Vallow’s conviction, jury deliberations in Danny Masterson’s retrial, and the grand jury indictment of University of Idaho slayings suspect Bryan Kohberger.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[00:00:10]
Hello and welcome to The Sidebar presented by True Crime Daily, taking you inside the courtrooms of high profile and notorious cases from across the country. I'm your host, Joshua Ritter. I'm a criminal defense lawyer based in Los Angeles and previously an LA County prosecutor for nearly a decade. You can find me on Instagram and Twitter at @JoshuaRitterESQ and please check out my website, joshuaritter.com. We are recording this on Friday, May 19th, 2023.
In this week's episode, jury deliberations begin in the retrial of actor Danny Masterson as the actor again faces three counts of forcible rape from three different accusers. Also, we have a surprising update, or not, depending on who you ask in the University of Idaho slayings as suspect Brian Kohberger has been indicted by a grand jury on four counts of murder weeks ahead of a scheduled preliminary hearing.
But first, we go to the conviction of Lori Vallow, who has been found guilty on all counts in a case that captivated the nation. Today, we are joined by Bob Motta, a criminal defense attorney, legal analyst and a host of The True Crime podcast Defense Diaries. Bob, welcome.
Bob Motta:
[00:01:24]
Thanks, Josh, I'm super excited to be here with you, man.
Joshua Ritter:
[00:01:27]
We are excited to have you. We know that you follow these cases closely with your own podcast. I know you do a lot of commentary on TV and with your experience. And so I want to hear a little bit about that. Before we jump in, tell us a little bit about your background and your current practice.
Bob Motta:
[00:01:43]
So yeah, I'm a long time, 20 plus year, criminal defense trial attorney. I actually have a practice with my wife. It took some getting used to, but we've done it and done it pretty well for a long time. A couple of years ago, I had been telling my wife, I'm like, look, I'm getting a little bit burnt. Because as you know, Josh, it's a tough business. It really takes a lot out of you in terms of the weight that we carry, in terms of what we do for a living.
And I said, look, I want to, you know, I've been tinkering with this idea of doing a podcast, and she was kind enough to give me the wide berth to let me do it and kind of carry the firm while I told her I was going to go all in on this thing.
So she's the real hero of the story in my world because she gave me the opportunity to do it. And I took the bull by the horns. And I had great source material because back in like '78 through '80, my father had represented serial killer John Wayne Gacy.
Joshua Ritter:
[00:02:43]
Oh, wow.
Bob Motta:
[00:02:44]
And for my 21st birthday, he'd given me all of his taped interviews with Gacy, which I held on to for 30 years, didn't do anything with them. And Gacy had waived privilege all the way back then. That was how he expected Sam Amarante and my father to get paid for the job. And I just sat on them, sat on them, sat on them.
And then at some point, I reached out to a documentarian, Joe Berlinger, and I'm like, hey, you know, your Bundy tapes thing just dropped. I just want to let you know I had some source material you might be interested in. That went on negotiation wise for nine months. I couldn't get something done. And that, like, really pushed me over the edge to do the pod.
And I'm so glad that I did because it's like in my estimation, obviously I'm biased, but like, we think we put together a masterpiece and it's really not about Gacy. It's really about the victims. It's about the investigation. It's about the arrest and the trial. So we tried not to focus on everything that's been said and done about that guy for all these years. We want to focus on the things that haven't been like the victims.
Joshua Ritter:
[00:03:47]
Wow.
Bob Motta:
[00:03:47]
And just the arrest. And then we play the taped interviews with my father. And that was, and I know we're going to touch upon this a little bit later in terms of there not being a insanity defense available in Idaho while there was and there is in Illinois. And that was an insanity defense case. So hearing my father spar with Gacy pretrial, trying to prepare him for that is fascinating stuff. So that was really what got me into it. And it's kind of taken off from there.
Joshua Ritter:
[00:04:15]
I did not know that. That is fascinating. I'm definitely going to check that out because you do not, you may get access to certain things when putting on a documentary, but to get the tapes between the defendant and his lawyer. I can only imagine the kind of stuff that you find out in that. Wow. Fascinating.
Bob Motta:
[00:04:36]
Yeah. And you never hear that side of it, you know?
Joshua Ritter:
[00:04:39]
No.
Bob Motta:
[00:04:39]
That's the thing. Like for that, you know, because typically there's privilege. And even though he wasn't my client, I wasn't going to jam my father up. But putting these tapes out there had Gacy not waived. But, yeah, they're really interesting, man, I think. Wow.
Joshua Ritter:
[00:04:55]
Well, we will definitely check those out. All right. Well, let's jump into these cases. I want to hear what your thoughts on these things. Let's go to Boise, Idaho, where a jury has convicted Lori Vallow on all counts. After five weeks of testimony, the jury of seven men and five women reached their verdict after just six hours of deliberation.
Vallo stood accused of the murders of her youngest son, JJ Vallow age seven, daughter Tylee Ryan, 16, along with conspiracy to commit murder and the death of Chad Daybell's late wife, Tammy. Daybell was Vallow's fifth husband. The children were last seen alive in September of 2019 before they were ultimately found dead in June of 2020 on the Idaho property of Daybell.
The case made national headlines, even becoming the subject of a Netflix documentary due in part to the extremist religious beliefs shared by Vallow and Daybell. The state presented, pardon me, nearly 60 witnesses, including members of Vallow's own family, to testify against her. Meanwhile, the defense did not present any witnesses or evidence on her behalf, insisting instead that the state had not met their burden to convict their client.
In closing arguments, prosecutors allege that Vallow's supposed religious beliefs were merely a rationalization, pardon me, for her actions, citing her motives as money, sex and power. Vallow was convicted on two counts of murder, three counts of conspiracy related to the deaths of her children, and Tammy Daybell. As well as grand theft for allegedly collecting payments on the children's behalf after their deaths. Vallow now faces a life sentence for these convictions. Her sentencing hearing is scheduled to be held in three months.
Bob, I know you followed this closely. I know you were giving some commentary on this. Were you at all surprised by this verdict?
Bob Motta:
[00:06:47]
No, not at all. And Joshua, man, I rabbit hole that case harder than anything. From a lawyer's perspective, I just thought it was the most fascinating case for a lot of different reasons. Ultimately, the way that I felt, and we ended up -- we have a side pod under the Defense Diaries thing that we call The Docket, and I actually brought my wife in, and we did 12 episodes.
So we were taking like the audio from each witness that we felt was pertinent and germane that weren't like foundational witnesses. And we were analyzing it from the defense side of it. And it was a massive project, but it was like so like I was so enthralled with the case. Obviously, it's a horrific case. Obviously, it's devastating the fact that we had these three wonderful people that were killed. And we can't forget about Charles either. I mean, he obviously wasn't charged in that case because it was an Arizona case. But I wasn't.
Ultimately, and I said early in our pod that I had no doubt they were going to convict her based on two things. And I didn't think they would ever be able to prove factually with evidence the first-degree murder charges. I just didn't think they'd be able to get there. And what shocked me was a little bit was the speed of the verdict. I know that -- because Alice and I are not going to get in the weeds in it here, but we get into the weeds. It's pretty heavy in our little docket episode.
In terms of the instruction for, and I know that that that our listeners and our viewers get bored by jury instructions, but you and I both know how absolutely critical those are. Those are the guide map for the jury when they go back in that deliberation room. It's their instruction booklet on what they're supposed to do and how they come to their decision.
And that jury instruction pertaining to the conspiracy and the way that they basically joined the murder charge with the grand theft charge in one instruction, like we spent like a half an hour trying to get like our listeners to understand the difficulty. So like going into the deliberations, I thought it would take a while and I thought that there would be a couple of questions. I always thought they were coming back with guilty on all counts, but not because of the evidence itself.
I thought that the totality of the story and the fact that the way that the kids were discovered and the desecration to the bodies, combined with the fact that Lori just didn't appear to care at all, that that was enough for the jury to say, you know what, once we hear it all, like there's no other option here other than to find her guilty for everything because she is. So no, like that was a long explanation for a short answer, which is no, I was not surprised at all.
Joshua Ritter:
[00:09:33]
No, but I agree with you. I was not surprised again, with the outcome, but it did seem to come back very quickly. And I'm not trying to say that the jurors didn't do their work. But when you've got five weeks of testimony and nearly 60 witnesses, you expect them to kind of be back there for a while to just kind of review some of this stuff amongst themselves. But I think what it shows is that they were just, like you said, so disgusted by what had taken place.
And over the course of that five weeks, just slowly began to become convinced that by the time they get back to the jury room, it sounds like it was just a matter of picking a four person and filling out some paperwork because that is a very quick verdict. We saw a quick verdict in Alec Murdaugh in his case. And I think people thought that's how things work. And no, it's not.
Bob Motta:
[00:10:20]
No.
Joshua Ritter:
[00:10:21]
In a lot of these cases, even when the evidence appears to be very compelling, they just take a while because they know the gravity of all of it. One thing, though, that did surprise me was the Tammy Daybell conviction, because I just felt that of the evidence that connected her to that murder, even under a conspiracy charge, it just seemed a little more tenuous and maybe a bridge too far. Obviously, not for the jurors. What were your thoughts on that?
Bob Motta:
[00:10:52]
I agree completely. I thought if there was one potential charge that they could have gone not guilty on, it was that one just because I mean, that was the one we knew that she was definitively out of state. She was in Hawaii when that thing went down, so in terms of them being able to make that connection.
And I've watched a couple of interviews with a couple of the jurors. And I think ultimately, because I was having a hard time, as compelling as the state's case was, and they really got into the weeds with LDS and how the offshoot of the cult had like really kind of taken on a life of its own. But like when they ultimately like they never really got the evidence that showed that she was in agreement. I mean, it was a lot of circumstantial stuff.
So like but that's why I was saying I knew they were going to land on guilty on all counts because just of the totality of the circumstances. But I agree completely. As far as the Tammy murder went, they just didn't really have the evidence. They never really provided it. But again, it was just, I think that the jury ultimately landed on the fact that she was evil. Like that they convicted her because they felt she was evil. And I think that that's what led them.
And look, I've been doing this a long time and sometimes even when the state can't necessarily meet the burden on its face, like when you look at it, piece by piece and element by element, you'll get a compelling narrative by a state, and then you get an incredibly hateable defendant, they're going down. And I think that's exactly what happened here.
Joshua Ritter:
[00:12:30]
Yeah, it's hard for 12 people to give a pass to someone who within weeks of their children disappearing that we now know they're dead, she's sunbathing in Hawaii with her new husband.
Bob Motta:
[00:12:45]
Married.
Joshua Ritter:
[00:12:45]
That kind of behavior, married, that kind of behavior is so just shocking and appalling that jurors are not going to have a hard time kind of connecting dots even where they might be a little tenuous. And again, I'm not trying to say they didn't follow the law. I think the evidence was there. It's just I think seeing that quick conviction, that had to have played a role, the emotions of all of it.
I want to turn to it for a second to talk about the defense here. And I want to know your opinion on how they did. If you think they could have done more, did they do the best with what they had? And then if you can, I know I'm giving you a lot here, but if you can work in the idea of this whole insanity defense not being available in Idaho and were they kind of hamstrung to some extent because of that?
Bob Motta:
[00:13:36]
Well. So I love that question and I love all the tangents of it. So thanks for asking it, man. So Alice and I, obviously being my wife and my partner, both being defense attorneys, we were super critical of what was going on with the defense. Now, granted, these guys were not originally the trial lawyers that were handling the case. They came into it later. It was a speedy trial demand. And as you know, that puts people off in terms of both sides trying to prepare for a trial, especially with this many moving parts.
And ultimately, and I'm sure your viewers understand, the fact that there typically are no surprises in terms of what's coming in, in terms of evidence. The defense knew. They knew that they had the DNA, that they had the hair that was found on the duct tape that was found on JJ's body. Like that was not a surprise.
It was a surprise to me in terms of when they, I'm like, oh, my God, they actually do have some DNA evidence, which I thought was powerful in the sense that the defense did nothing to counter. Nothing. Like anytime I have a case where I've got DNA involved, the primary purpose because my general feeling is that experts will typically X each other out in terms of the jury.
You're going to have the state's experts say what they need to say in terms of the state's case in chief. And then our expert will say what they need to say and what they're paid to say in terms of not saying that they'll lie, but we're always looking for experts that are seeing it through our eyes. Right? So we'll put them on it. And ultimately, they're going to X each other out.
So when we typically hire, especially somebody like a DNA expert, I hire them to ask them, what do I ask on cross-examination? How do I make headway on cross-examination? And you could just tell by the cross examination or the lack thereof with respect to the DNA, which I thought was powerful evidence, just because of the fact that it was there, and it was hers.
And it was on JJ's body, and it wasn't directly on like his pajamas. I mean, you have that easy argument. Well, he lived with her. She's got long hair. My wife's hair is like everywhere in my house, all over me. This was like on a third layer, like on the outside. There was a hard explanation to understand why it would have been there if she wasn't at least present when the body was being prepared the way that it was.
So as far as that went and overall, I just thought them leading into reasonable doubt completely. And you knew it from the get. I mean, the opening statement was, I was floored at how awful it was. And I've had cases where I've had bad facts and I know that I'm having to read like really just lean into reasonable doubt.
But I just felt like it was so, like, so unimpassioned. It was like there was nothing to it. It had no teeth. And when you have a narrative like the state had and you're trying to somehow counteract that by just saying they're not going to be able to prove it because they don't have the evidence, man, that's a tough road to hoe.
And then when you factor in, and what I was rabbit holing so much on was this concept of the religious side of it, that the state had to get that in in order to give the jury context of what their theory of the case was. And their theory was that it was money, sex and power. That's what she wanted.
And they used this, her and Chad used this cult and this offshoot of LDS merely as a smokescreen to basically do the things that they needed to do in order to remove the impediments that they felt were in their lives. And unfortunately, that turned out to be Chad's wife and Lori's kids, along with her ex-husband, Charles. And it would have been more. I mean, they tried to get Brandon. Like anybody that they saw as an impediment was going down.
So the way that the intersection of the First Amendment and the criminal justice system was like really put on trial there, had me so fascinated because you have this concept of the First Amendment where the government cannot make laws that dictate what we can believe in terms of our religion, right? So they can't do anything.
Obviously, a religion can never justify murder, right? That is not something that can ever take place. If you're a person that has a religious belief that, look, we have to be cannibals. Well, you're going to go to prison because you can't kill and eat people no matter what your religion says.
However, this kind of dovetails right into your question about the fact that in 1992, Idaho got rid of insanity defense. All right. But what they did is they carved out this little niche, and it's not an affirmative defense. Like it's really just a way for mental defect to get brought into evidence. And it's specifically to attack the mens rea portion of the statute.
And I know I might be getting a little legally here, but it's a fascinating concept. And basically, what that says is that had they hired a forensic psychologist or psychiatrist to evaluate Lori and had that doctor been able to say, look, this woman actually believes this stuff. She actually believes that she wasn't killing a human being, which is a required element of the murder statute, that she thought that she was killing a vessel, that she was dismembering a vessel in order to get rid of this demon. Like she literally believed that.
Like that was the only defense that I saw that was plausible in terms of being able to get in there and argue it. But what I found out from people in the courtroom that were observers is that Lori would not allow them to do that. Like they actually -- her attorneys went on the record and would not allow them to use this one little portion of the statute that carved out the ability to be able to get that mental defect in there.
She wouldn't let them do it, which spoke volumes, frankly, about the fact that, like, I honestly think that the woman actually believes it. Still, I thought like the entire trial, I was sitting there thinking, I think this woman actually thinks that the end of days is coming March of 2024. I think that she's sitting there thinking that none of this matter, because you're all going to be gone and I'm going to be ushering in the 144. And that's what I'm doing, Like, so none of this is all for naught. And I just I could not shake that feeling just because of her, like, lack of a fact, you know.
And then when you hear the call from her son, Colby. Man, it rocked me to my core. It's like, as a father of four and I'm sitting there listening to this woman, just listen to her son who's destroyed based on the fact that this woman killed his siblings and his mother.
She was a single mom for periods in the course of her five marriages, it was always her and Colby and like I was with a single mom. You create a bond that fight between a single mom trying to do what she has to do to raise her kid and fighting all the challenges that come along with that. Like, man, just to see him just so crushed like I was a puddle, to be honest with you. So, yeah, it was an unbelievable case, man. It really was.
Joshua Ritter:
[00:21:07]
It really was. And just to kind of give a closing thought on it as you were speaking, I wonder if part of the decision, it sounds like she was, you know, had her hand in the strategy decision making on that trial more than most clients.
But I wonder, too, if they reached, you know, because you kind of reach a fork in the road with these defenses where if you're going to say, I didn't know anything about it, I had nothing to do with it and I wasn't part of a conspiracy, that's one thing. Or you say, I did do it, I was a part of it, but I was so mentally incapacitated or I had truly believed that they were evil. And therefore, I'm throwing myself in that, like you said, that little carve out of the insanity defense.
And those are so diametrically opposed that you can't do both at once. So I wonder if that's the strategy that her defense team went with. Well, in any case, it didn't work. I don't think it would have worked with any defense that they put on because there was a tremendous amount of evidence and a really awful crime.
But we'll continue to watch it because she has her sentencing coming up. And then we'll have the trial of Chad Daybell either later this year or soon next year. But in any case, a really tragic story.
Let's move now to Los Angeles, California, where in another case that may soon be reaching a verdict, the jurors on the retrial of Danny Masterson have begun deliberations. And this is another one of those situations where we record these podcasts on Fridays. And it always seems like if a jury's out and it's a Friday, they come back with a a verdict later that day. And by the time we release the podcast, we're a little late to the show. So we'll see if that happens here.
Bob Motta:
[00:22:58]
So true. So true. We know it as trial lawyers. It happens. Like I hate when a jury is deliberating on a Friday. Especially if they go to deliberations on Friday, because your fear is if it's been a two, three, four-week trial, that they're going to be like, man, we are not doing this over a weekend. We're not coming back.
Joshua Ritter:
[00:23:17]
We're done.
Bob Motta:
[00:23:18]
For both sides, but yeah.
Joshua Ritter:
[00:23:20]
Yeah. Well, we'll see. The actor faces three counts of rape from three different accusers with the alleged incidents taking place between 2001 and 2003. Scientology in this case has played a pivotal theme with some of Masterson's accusers, alleging that they were intimidated by church officials from bringing their allegations to light sooner.
Masterson's first case resulted in a mistrial in November of last year, with the jury deadlocked but favoring acquittal on all counts. Masterson's defense has made multiple attempts to have the case dismissed, and bolstered their case on the actor's behalf with the addition of defense counsel Shawn Holley, who first came on the scene as part of the notorious OJ Simpson dream team.
Meanwhile, the prosecution was allowed additional tools to aid in their case this time around with a judge ruling that prosecutors could directly address allegations that the actor drugged the accusers prior to the assaults. Notably, Masterson did not testify in either trial, and his defense did not present any witnesses on his behalf in this retrial.
Now, Masterson's fate is in the hands of a jury. If convicted on three counts of rape, Masterson could face up to 40 years behind bars. Bob, talk to us a little bit about retrials. Who do they tend to favor in your opinion?
Bob Motta:
[00:24:41]
I think they favor the state. And the one thing that happens with the retrial -- and look, both sides are getting a second bite at the apple. Right. So, I mean, in terms of anything that you think strategically, whether you be the prosecution or the defense that you think did not go well during that initial trial, you're going to edit it out.
Like the one thing that's not going to change typically is you're not going to have additional evidence because everything that was there, was there at the first trial. So typically, what you're dealing with is deletions where you're kind of editing out things that you felt may have swung the jury one way or another or things that may have been lacking in terms of what you needed to get to the jury in order for them to get over the hump if you're the prosecution.
And I think that at the end of the day, Joshua, the thing that we all know as attorneys is every jury is different. At the end of the day, you could tell the same theory both sides can to 12 different people two separate times and come up with completely different verdicts. And it's just because you never know what a jury is going to do ever.
Like I've watched, Alice and I have tried cases where we're like, wow, we crushed that. Like, there's no way they're not coming back not guilty. And then the jury comes back and they hammer our client. Like you just never know. I mean, you can have a feeling of how you perform during the course of the trial and you're always trying to read the jurors, you're always trying to say, oh, that juror looked at me when they came back from the deliberation room. I thought I saw a smile.
But at the end of the day, you just never know what a jury is going to do. And if the state's getting two shots at it, I always feel that that leans in the favor of the state. And they have the ability to be able to, like I said, edit out things that they felt did not help them the first time around.
Joshua Ritter:
[00:26:37]
Yeah. Yeah. They certainly had kind of a dry run as far as knowing where the defense would attack them and being able to preemptively address those things ahead of time. But then at the same time, the defense does have the added benefit of now several different transcripts on how these people have testified and the ability to cross-examine them on all of that.
But it does seem to be that prosecutions oftentimes do secure a conviction the second time around. Especially in this case, I think you might be right, because there's kind of added tools at their disposal. And I wanted to ask you about those that in this case, they're going to be given more leeway as far as specifically alleging that the victims were drugged. But perhaps more significantly, the judge allowed several uncharged bad acts, witnesses, including one alleged victim who had no ties to the Church of Scientology.
So do you think those are enough to be game changers? And explain for just a quick second what do we mean by uncharged bad acts, witnesses, if you could.
Bob Motta:
[00:27:48]
Yeah, I think both of those things are actually devastating in terms of that concept of being able to use the prior bad acts. And that's basically, it's rule 404 in the federal rules. But most states mirror that rule in their own state rules. And basically, what it allows for is acts either charged or uncharged that happened in the past that are not being used for propensity or to assassinate the character of the defendant can be brought in to show things like a common scheme or plan.
And those are things where they're devastating for a jury to hear because they're not a part of this case but they do. Ultimately, as a defense attorney, I always felt like no matter what the judge says and no matter what the rule says, that it ultimately ends up being a character assassination. It's like, look, this guy has done this before a lot.
And it's like ultimately, I know how it reads and I know what it's not supposed to do in theory. But as human beings, when you hear that type of thing and you put it in conjunction what you're hearing about what's being alleged in this case, it's incredibly, incredibly powerful evidence.
And as far as the ability to be able to say now and get into the weeds more about how this was happening and why there was no defensive wounds, why there was nothing that typically you would see where you have a forcible rape, why didn't those things exist, which would lead a juror to doubt potentially that it actually happened the way that the victim is claiming?
Now, they have something to hang their hat on. They say, okay, well, now I have an understanding that the victim wasn't conscious. Like that's how there's no defensive wounds. There's no marks. You know what I mean? So I think both of those things are very, very powerful.
Joshua Ritter:
[00:29:51]
No, I agree. I think they're game changers. And I'll go one step further. In California, these prior bad acts in a sex case fall under evidence code here called 1108, which does allow for the argument of propensity. So it's not your typical character witnesses here.
This is saying, specifically, and the prosecutors can make the argument that, listen, if you believe these other people who were not even charged in this case, you can believe that he has a propensity, a character about him to be the type of person to commit these crimes and therefore, you can conclude that he committed the crimes that he's charged with. It's hard to think of an argument that can get around that, especially in a case with multiple alleged victims and now multiple prior bad acts. Witnesses being called. Devastating stuff.
Bob Motta:
[00:30:48]
Gut punch. That is a gut punch.
Joshua Ritter:
[00:30:50]
Yeah. It's a very powerful tool by the prosecution, and almost insurmountable. But again, we'll see the effect. It's unfortunate that we don't have a verdict today to share with everyone, but we will see how the jurors come out on this case and follow that. I'm guessing we will probably hear something next week.
Finally, let's turn to our last case out of Moscow, Idaho. This week, it was learned that Brian Kohberger has been indicted by a grand jury on four counts of first-degree murder and one count of burglary for his alleged perpetration of the University of Idaho slayings of four college students.
The violent killings, which left the small community of Moscow, Idaho, shocked, took the lives of Kaylee Goncalves, Madison Mogen, Xana Kernodle and Ethan Chapin. All the victims were stabbed to death in an off-campus home near the University of Idaho, not far from the border of Washington State.
Kohberger, who was a graduate student in Washington State University's criminology program at the time of the alleged murders, became a person of interest in the case after his white Hyundai Elantra was reportedly seen multiple times in the vicinity of the off-campus home. A nationwide search ensued for the vehicle, with police apprehending Kohberger at his parents Pennsylvania home.
Following his arrest, authorities release a redacted affidavit detailing the probable cause evidence for arresting Kohberger. The most damaging of which includes alleged DNA linking him between a knife sheath found at the crime scene, which police reportedly tied to Kohberger using genetic genealogy, which involved the comparing of DNA recovered from the crime scene to DNA obtained from the trash at the home of Kohberger parents, evidently tied to his father. Really incredible police work there.
A preliminary hearing for the charges was scheduled for June 26th of this year. However, prosecutors have opted to bypass that step by indicting Kohberger via grand jury. Brian Kohberger faces arraignment on May 22nd and is expected to enter a plea in the charges. Bob, was this development as far as the grand jury shocking to you? And if not, why not?
Bob Motta:
[00:33:10]
No, not at all. Like I have proof positive, like on my TikTok and my Twitter. I've been saying months ago that I would be shocked if they didn't go to a grand jury. From the defense side of it, but the reality is, like when the case broke, I started digging into their criminal rules out there.
And I was also seeing that basically, they never go to a grand jury in Idaho. It's like 97 percent are done by preliminary hearing. So I knew it was kind of a rare occurrence for them to convene one. So, like, that was the only thing that I was kind of contemplating.
And they have a part of their criminal rules out there is they have what's kind of called a preliminary hearing, speedy statute, where they had to come within 14 days with the preliminary hearing. Unless Kohberger and his defense team waived it, which they did, which is how it got kicked out so long.
The only thing that kind of surprised me is that the defense agreed to kick that preliminary hearing out so long. Because the advantage for the state is that it's done in secret, that being a grand jury. It's like preliminary hearing that would have been a mini trial.
As trial observers, we all wanted to see it because it's just one of those cases that garnered so much attention across the nation, really across the world, that we all want more. I mean, the online community, social media exploded with that case in a reckless way in a lot of ways. I was worried about what was going on in a lot of senses in terms of innocent people being pointed the finger at and being blamed and people buying it and people running with it.
I think there was an actual lawsuit by a professor who was some TikToker or had said that this woman had done it and through like the reading of tarot cards and like the professor actually sued that TikToker. It was reckless. The stuff that was so like, I'm taking that into consideration of what went on with respect to the dissemination of information and a lot of incorrect factual information.
My podcast, I did not report on that case at all until aside from the initial story that these beautiful kids had been, their lives had been robbed from them. But beyond that, we refused to deal with it until they made an arrest because I wasn't going to engage in the speculation.
So the reason that I'm bringing that up, I think that that played a part in the decision to go to a grand jury. Now, we know that the gag order is in place, but we also know that the just the magnitude. Like I hadn't seen media on a case like this and we've seen some big ones, but I hadn't seen it like this since like OJ. And OJ was pre-Internet, pre-social media and like that was the closest that I'd come to seeing like anything that had just like captured the minds of the nation like this case had.
So like I think that there's a real concern with respect to them getting any more information out to the public just because they're afraid of what will happen online and through the mainstream media, to be honest with you. And beyond that, it's an advantage to the state because they don't have to put on witnesses that are going to be cross-examined by the defense in a grand jury. It's done secretly. They go in and basically they impanel the grand jury and they'll typically put on one, maybe two witnesses, and they're basically going to recite the PCA in that probable cause affidavit.
And the jury has the opportunity, the grand jury has the opportunity to ask questions. And they can even go so far as to say we want to see additional evidence. Now, I've never personally seen that happen when I get a grand jury transcript, but they can do it. So from that perspective, like it was not a shock to me at all. I thought that that was absolutely the way that they would go. And frankly, I thought it was the way they should go based on everything that had been happening in terms of us, the public.
Joshua, I don't know if you ever gone on this Facebook page that has 220,000 members about the Idaho four case, about a rabbit hole of speculation and you will lose days of your life in there. So, yeah, I was not surprised.
And frankly, I thought it was the right move. I'm a little bit surprised that the defense didn't kind of -- like I might have thought about doing a writ of habeas to get that pulled in because a little earlier -- because that's a really long time for him to be arraigned. I mean, six months is a really long time.
And I mean, the arraignment is going to take place Monday. And like it's not going to be news that he's going to plead not guilty to all the charges because that's just how they do it. Like if people are expecting this guy to say, I did it, it's not happening. It's going to be not guilty. It almost always is. And it will be in this case. So, yeah, I was not at all surprised.
Joshua Ritter:
[00:38:06]
No, I wasn't either. And I think people who have a background like yourself and myself, this is the world we live in, we're not surprised by this at all. In Los Angeles, it's the same, as you had mentioned, 99 percent of charges go through a prelim.
To have a grand jury is rarely used, but it's used in cases with a lot of complexity, in cases with perhaps sensitivity towards the people who are going to be testifying and in cases with a lot of media intrigue because they don't want to turn the prelim into this absolute circus of media frenzy and reporting on it and second guessing it and stuff getting out.
And so, yeah, they opt for it. And I was not shocked that they opt for it here because I think it just made it easier on the prosecution, especially in light of we're now starting to learn that some of the, at least, one of the surviving members of that household had been subpoenaed by the defense for the prelim and was fighting it.
So it sounds like they are even having perhaps some trouble convincing some people to participate in this whole process because they might be reluctant to be in the public light or subject to the scrutiny of cross-examination. So this was a way to avoid all of that.
And now it just further puts the defense, I think, behind the eight ball because they don't have the opportunity to cross-examine people and kind of confine them to a very specific narrative of what they testified to. And they are just going off of those transcripts without the benefit of seeing how these people testified in court.
So it's not shocking at all.
And just so the listeners understand, too, this isn't somehow unfair on the part of the prosecution. It's a probable cause hearing, just like a preliminary hearing. It's just a different way of doing it but it still has to be determined that there's enough evidence below, far below the standard of beyond a reasonable doubt, but enough evidence to hold that person to answer for trial, which is exactly what's going to take place here.
One more thing that you mentioned. A lot of people have been critical of the defense having put the prelim over for such a long period of time. You're right, the clock is always controlled by the defense. So they, to some extent, can put some pressure on the prosecution to get things going quickly.
And sometimes there's a strategy behind let's get it, let's push the prosecution. I don't think they're ready. I don't think they've got their ducks in a row. Perhaps they don't even have lab results on some things that they need. And let's see if we can't get this to prelim quickly and take advantage of all of that.
I think the reason why they did it here and it wasn't as bothersome to me is I believe, and that's the question I have for you, is he's going to be looking at the death penalty. I mean, a case like this. Putting your politics aside, is the poster child example of what you would use the death penalty for, for this kind of innocent victims, brutal killing, multiple murders, all of that involved.
And I think the defense is realizing that. And I think they thought we are going to take our sweet time to make sure we mount as much of a defense as we possibly can on any part of this. And if that means putting his prelim off for a period of time for us to review this data dump of information we're going to get from the prosecution, let's go ahead and do that.
Now, doesn't really matter end of the day, because they did it through grand jury anyways. But that to me was their thinking behind it. But do you think this will end up being a death penalty case? And if it does, how do you think that affects the defense's posture and the way they approach it?
Bob Motta:
[00:41:47]
I absolutely think it's going to be a death penalty case. I think that this case actually was the impetus of them bringing back the firing squad in Idaho. Now, that's not the first choice, but basically, he can be put in front of a firing squad if they are not able to collect the cocktail for the lethal injection, which frankly, is in low supply. So, I mean, there's a chance that I mean, they go old school. And if he's found guilty, that he's going to be standing in front of a firing squad, which is kind of mind blowing when you think of it. So a way to get put down.
But yeah. No, I agree completely, Joshua, I think that mindset. and I try to quadruple homicide that had spanned five years. There was a child victim just a devastating case. And I was -- the same thing was happening with us. But it wasn't so much the waiving of the preliminary hearing because they didn't have the statute in Omaha, Nebraska, that 14 day like kind of trigger where if you don't get it done, you've got serious problems in terms of keeping this guy in custody.
But ultimately, our concern was, do we want to do a speedy trial demand because which still exists for the Idaho four case. I mean, they waived the preliminary hearing. As far as I know, they still have the ability to be able to do a speedy demand, which they're never going to do. And it's like you're talking about it, I mean --
Joshua Ritter:
[00:43:20]
Not to interrupt you, but you're right. At this arraignment, they'll be set on another clock. So if they wanted to, they could say, we want our trial as soon as possible. But I agree with you, I think they're probably going to put the trial off for some period of time anyways.
Bob Motta:
[00:43:33]
Yeah. No way they're going to go on a speedy demand. And it's like you have that situation where because you know, like a massive amount of the investigation takes place post arrest. It's like you said, they did amazing police work. When that PCA dropped and I had been looking at the Delphi PCA which was revolving around Abby and Libby over in Delphi, Indiana, which is a very big case for the true crime world. We all want justice for those girls.
And when that PCA dropped, I was like, oh, I'm worried. I'm worried about the strength of the case here. And then after the defendant in the Idaho four cases is picked up and arrested and that PCA was released, I was like, wow. It's like you see the disparity in the power of the PCA and the police work that was done just in the face of like the entire country. Really just spitting all over law enforcement saying that they were incompetent.
I mean, you had the parents of some of the victims attacking them and they, just behind that curtain, they were able to maintain they knew what they were doing. They knew they were closing in. And to like, imagine how difficult that must have been for law enforcement to be knowing how close they were to capturing who they believe did it and not saying anything. I was so impressed by the way that the entire --
Joshua Ritter:
[00:44:53]
I completely agree with you and I'm so glad you brought that up. It was so -- it put a smile on my face because I imagine what those detectives were going through because they were really getting raked over the coals for what are they doing? Why haven't they arrested anyone? Why don't they have any leads? Maybe they're not up to task here. Maybe it's too small of a town to handle this. They should bring in reinforcements.
And then they drop that affidavit and you're like, wow, they did some next level police work here. And they'd been working on it for some period of time. And the case that they handed over to the prosecution now, even just based upon that initial affidavit, I think is incredibly strong.
Bob Motta:
[00:45:35]
Oh, man. Like that thing heavy, heavy leans towards guilt. It's like you'll get a PCA +that leans towards guilt. But this thing is heavy leans towards guilt. And you touched upon the genealogical DNA and for those of you guys out there, it's not going to matter. They've already, the defendants, already submitted his own DNA. They're not going to have to rely on the genealogical DNA that they were able to get from his parents' home because they're going to have his DNA. So they're going to be able to make that match with his DNA.
So but for what they needed at that point, it was brilliant police work. And it was like it was multi-jurisdictional. You had so many states involved. You had Washington, you had Idaho, you had Pennsylvania, you had Colorado because they had driven through. You had Indiana pulling him over two times on the way. I mean, there was so much behind the scenes police work that went on with that thing that I was really impressed, like the whole way through.
And it's going to be one heck of a case. And sadly, Joshua, I think they're going to do the same thing that they did with Vallow. If we're lucky, we're going to get to hear it. I don't think we're going to get to see it.
Joshua Ritter:
[00:46:43]
Yeah. Yeah. It does seem to be leaning that way with the gag order that's in place. And it's unfortunate, too, that now that they've done it through grand jury, we don't have the same kind of transparency that we would have had at a preliminary hearing, which would have been open to the public. But I'm sure that there will be no shortage of coverage on this case. And we will continue to watch it.
But that is our show for this week. Bob, thank you so much for coming on. Where can people find out more about you?
Bob Motta:
[00:47:11]
It was an absolute pleasure. In terms of the podcast, we're on every platform, Apple, Spotify, wherever you get your pods. I'm on all socials as well and it's all under @DefenseDiaries. Defense Diaries is the podcast. Like I said, we have a serialized long form for people that like deep dives and we've also got the docket where we handle all the current and breaking news stuff. And we think we do a pretty good job. So we'd love to have you guys check this out. So I really appreciate the opportunity to be here. And I had a blast doing it.
Joshua Ritter:
[00:47:41]
We had a blast having you. Thank you. And we will definitely post the links to your show in the notes of this podcast. I'm your host, Josh Ritter. You can find me on Instagram and Twitter at @JoshuaRitterESQ and please check out joshuaritter.com. You can find our Sidebar episodes wherever you get your podcasts.
And we want to hear from you. If you've got questions or comments you'd like us to address, tweet us your questions with the hashtag #TCDSidebar. And thank you for joining us at The True Crime Daily Sidebar.
