Prosecutors seek death penalty in Idaho slayings; Parkland resource officer acquitted – TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
In this episode of True Crime Daily The Sidebar Podcast: Rachel Kaufman joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss the acquittal of Scot Peterson, the admissibility of confessions allegedly made by Delphi murders suspect Richard Allen, and Idaho prosecutors seeking the death penalty for 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 or at Joshuaritter.com. We're recording this on Friday, July 7th, 2023.
In this week's episode, prosecutors announced their intention to seek the death penalty against Brian Kohberger, the man charged with four counts of murder in the University of Idaho slayings. Also, according to court documents, Delphi murder suspect Richard Allen allegedly confessed to the killings on multiple occasions and jailhouse phone calls to his wife. But first, a not guilty verdict for Scott Peterson after he was accused of neglect in the line of duty during the fatal Parkland School shooting.
Today, we are very happy to be joined by Rachel Kaufman, a criminal defense attorney, recognized as one of Atlanta's top trial lawyers. Rachel is also a legal analyst you can catch on Court TV and many other outlets. Rachel, welcome back to the show.
Rachel Kaufman:
[00:01:24]
So happy to be here. Happy Friday.
Joshua Ritter:
[00:01:26]
Happy Friday.
Rachel Kaufman:
[00:01:27]
It will be Tuesday, but yeah.
Joshua Ritter:
[00:01:28]
It will be Tuesday, but happy Friday for us.
Rachel Kaufman:
[00:01:31]
Good to see you.
Joshua Ritter:
[00:01:33]
For listeners who are not familiar from the last time you were on the show, can you tell us a little bit about your current practice?
Rachel Kaufman:
[00:01:38]
Sure. I am a solo practitioner in Atlanta, Georgia. I primarily focus in Fulton County and DeKalb County, which encompasses Atlanta. I handle mostly serious, violent felonies. Lately, I've been handling a lot of mental health cases, the intersection of mental health and criminal justice. And then also my favorite thing to do is I work with a program called Canine Cellmates. It's about restorative justice. And we get guys out of jail, and they train shelter dogs. And I'm just all about that. It's all the things that my normal day to day fighting with the prosecutors is not.
Joshua Ritter:
[00:02:18]
Right.
Rachel Kaufman:
[00:02:19]
That's my favorite part. And it's all volunteer. So.
Joshua Ritter:
[00:02:21]
Oh, that's very cool. It gives you a break from all of that, I'm sure.
Rachel Kaufman:
[00:02:24]
Absolutely.
Joshua Ritter:
[00:02:25]
Well, we are going to call upon your vast experience. And I know that you follow these cases closely, so we're very curious to hear your thoughts. So let's jump right in. We'll go to Fort Lauderdale, Florida, where after 19 hours of deliberation, a Florida jury has acquitted former sheriff's Deputy Scott Peterson on all charges related to his response in the fatal Parkland school shooting.
Peterson, who was a school resource officer assigned to Marjory Stoneman Douglas High School on the day of Nikolas Cruz, Mass shooting faced seven counts of felony child neglect for the four students who were killed on the third floor and three who were wounded, along with misdemeanor counts of negligence and one count of perjury. Notably, Peterson was not charged in connection with any of the deaths or injuries that occurred on the first floor of the school where Cruz began his shooting rampage.
After hearing shots, Peterson responded to the school's classroom building with his gun drawn. However, he alleges that he was unsure of where the gunfire was coming from and sought cover, instead of entering the building. Prosecutors claimed that Peterson's evasive actions allowed Cruz to continue shooting, arguing that his failure to intervene prioritized his own safety over that of children, that he was in charge of protecting. His
defense maintained that Peterson was not in dereliction of duty, arguing that Nikolas Cruz was the only person responsible for the deaths on the third floor of the high school. Ultimately, the jury sided with Peterson, acquitting the former sheriff's deputy on all 11 charges. Rachel, I know you had followed this case closely. I know that you have some pretty strong thoughts on it. But first, I want to just ask, was this verdict surprising to you?
Rachel Kaufman:
[00:04:09]
The verdict was not surprising to me, but it was concerning how the length of time that they deliberated. I know that there were seven charges. I believe it took like 19 hours. That means someone in there probably wanted to convict him of something. So that did surprise me a little bit. Even though it's human nature, which is, I guess not the whole -- like the umbrella over all of this is that when something terrible happens, when a tragedy happens, we want people to blame. And blaming Nicholas Cruz when he didn't get the death penalty, it just wasn't enough. It's a lot of Monday morning quarterbacking, but it was over an incredibly -- you know, people's lives. So I understand why people now, are looking back retrospectively and looking to blame additional parties.
Joshua Ritter:
[00:04:55]
Yeah. No, I agree with you. I think this was a very emotionally charged prosecution. There's a lot of frustration shared by many people in this country regarding these mass shootings, especially taking places at schools. So you can understand anybody taking any kind of effort to see what they can do to try to stop this. But legal analysts nearly across the board that I saw seemed to agree that, first of all, this was a case, first of its kind in the country, very novel theory of criminal liability. Do you think that trying to extend criminal liability and that's important distinction to make here. We're not talking about civil liability, but criminal liability, holding somebody responsible in a way that they could go to prison. Do you think that was just simply a bridge too far for these jurors?
Rachel Kaufman:
[00:05:51]
I think it's a bridge too far for these jurors, given the circumstances. It wasn't as though he was escorting one child to the restroom or something, and the gunman popped out and he threw the kid in front of him so that he didn't die. That's not what happened. This was like more of a passive. It's not a heroic move.
Again, he's guilty of not being a hero in the moment, but my big thing is he's a school resource officer. He looked like he was towards the end of his career. He's at a school that's not like there's school shootings regularly there. It was just a normal day. I don't think he ever expected as a high school resource officer, off duty deputy that he's going to have to respond or be the caretaker, because I know that's really what it was about, whether he's the caretaker of those hundreds of kids in the building. That was not his understanding of his job.
And in his defense, he didn't know exactly where the shots were coming from. Criminal intent, it's not there, but I'm sure he feels like a coward. I mean, it's a little cowardly, but we don't know what we would do in that position. You don't know what you'd do.
Joshua Ritter:
[00:07:02]
Yeah. You hear responses to this verdict from the parents who lost their children in that shooting, and your heart goes out to them. And they're so lost and so frustrated and so heartbroken. And you can understand why they would feel like what more could have been done. And when you see the video, and I remember I felt the same way when you saw the video of this officer, and it appears as though he's just kind of protecting himself, you can understand kind of their initial reaction to it.
But I agree with you that we're talking about criminal liability here again. And I focus on that is that at what point do we decide that you're right, this person may have acted cowardly and that may be a crime morally, but is it a crime itself? And that's really what the question was in front of the jurors. And unfortunately for these parents, I do think that the verdict and the jury here got it right as far as how the landscape of the law currently is.
But a lot of people around the country were watching this, and I imagine especially authorities in Uvalde, Texas, where we know there is another incredibly tragic shooting that took place there. And in that case, it's alleged that officers waited over an hour after the shooting had started taking place before they finally entered the building. And I want you to try --
Rachel Kaufman:
[00:08:41]
And that's inconceivable.
Joshua Ritter:
[00:08:41]
Yeah. I want you to try, do you think this case is distinguishable? Do you think that the Uvalde folks will still proceed with the prosecution? How do you think this verdict may affect that investigation?
Rachel Kaufman:
[00:08:55]
Well, I guess, I actually think it's kind of an opportunity for the Uvalde prosecutors to learn what didn't work here. I feel like also the facts and the circumstances under which they did not enter the building or do anything reasonable. And we're not talking about a high school. We're talking about kids. So it's just completely different circumstances.
I don't think there were multiple floors. They knew that there was somebody in the building, which it sounds like Scott Peterson wasn't sure where exactly it was coming from. I mean, for him to go chase and attack an enemy that he couldn't identify, it's a lot to ask in a structure like Parkland. I think it's a much different situation. But I do think the prosecutors are going to have to deal with the fact that we don't want to blame officers. We don't blame officers when they respond to crimes, 911. They respond to calls, and they don't do enough, they don't get charged criminally. It's a slippery slope, but I do think that some facts are egregious enough that warrant it.
Joshua Ritter:
[00:10:03]
Yeah. There's no clear line here. I don't think there's an absolute answer on this conduct is bad and that conduct is okay. But I do think that you can distinguish Uvalde from what took place here because of the time and I think that is an important point, that it's not the idea that waiting at all is not a problem. But in the instance in Parkland, he waited, what I understood from what I heard about the case is that he waited a matter of minutes and in that time, lives were lost tragically, but that the shooter had actually left the building shortly after he had arrived on scene. The officer, I mean.
Whereas in Uvalde, we know that there were still shots going on during that hour long period. And I think you can say, okay, this isn't about just waiting alone, but it's about at some point, you're right, it does become a dereliction of duty. And at some point, you do, as an officer, as a sworn peace officer carrying a weapon, you do have a duty to do something because inaction can lead to the further loss of lives. The other point, and I wanted to hear your thoughts on this, is there was a lot of assumption in the Parkland case that had he entered the building, he could have somehow prevented these deaths. That's assuming a lot. That's assuming that he --
Rachel Kaufman:
[00:11:28]
Exactly. If only. If only. I wish he could, but I don't think that that's a likely scenario, quite honestly. And I do feel like the victims in the Parkland shooting case have reason to be mad at more than Nikolas Cruz. And I said that from the beginning. It's why I didn't believe that he would get the death penalty, that they would find him eligible for the death penalty and take it there. It's because so many people knew that he was not right. They weren't surprised when they heard that he went in there and shot up a school.
Like if you know someone who you would not be surprised if they went in and killed a bunch of people, and you have some ability to like, I don't know, point them out to police. Catch the ball. So many people didn't catch the ball in Nikolas Cruz's case. Peterson being, I guess one of them. But again, the ball came at a million miles an hour and they didn't keep coming that long, so he couldn't have prepared himself to catch them. It would have been so different if he, like, in attempting to confront the shooter, just hid. That didn't happen either.
Joshua Ritter:
[00:12:35]
No, you're right. There's no one simple answer of many missteps I think led to this. And there's not one simple answer of what could have been done to have prevented all of it. And I hope that people listening don't interpret anything that you and I are saying is that we don't share in that frustration, even to the point of disgust. That something wasn't done beforehand to have prevented this. I just think from a legal perspective of this prosecution was misguided in its efforts. But we'll see what happens in Uvalde. We'll obviously keep track of that one.
Moving on to Delphi, Indiana, where new court documents released in the Delphi murders revealed shocking allegations in the state's case against defendant Richard Allen. Allen, who was arrested in October of 2022, has been charged with two counts of murder for the deaths of Abby Williams, 13, and Libby German, 14. The girls' bodies were found near a remote hiking trail in Delphi, Indiana, in February of 2017.
According to court documents, Allen allegedly confessed to the crimes more than five times in conversations with his wife and his mother while using public jail phones. Allen's defense has argued that the confessions are not credible due to the man's declining mental and physical state. However, multiple mental health professionals have evaluated Allen and concluded that he was not in need of involuntary medication or a change of protective custody.
Authorities allege that Allen threatened the victims with a gun before stabbing them to death. New details also released in the court documents allege that articles of clothing were removed from the victims, including a pair of underwear and socks. Allen has pled not guilty to all charges and his trial is scheduled to begin in January of next year. All right, Rachel, in your opinion, are these confessions admissible? Are they coming in? What's your initial kind of reaction?
Rachel Kaufman:
[00:14:40]
Yes, they're coming in. Yes, they're coming in.
Joshua Ritter:
[00:14:42]
Tell us why.
Rachel Kaufman:
[00:14:44]
They're coming in because there's no marital privilege when you're on a recorded phone, a public recorded phone from jail. That's why they actually warn you while you're about to get on the phone. They say this call is recorded. They listen. Especially in these kind of cases, they're listening. Now, we don't know the content yet of exactly what his confession is. The defense may have a better argument if he's just saying, yes, I killed them. That's different than providing details that I guess maybe aren't in the public such that we would know.
So if he's confessing to detailed aspects of these crimes that nobody else would know about, there's really not much of a defense. However, if he's just saying, yeah, I did it as sort of a rolling over and saying, I'm so tired being here under these conditions that I did it. I've never had a client be in custody and deteriorate to the point where they got on the phone with a loved one and just said, I did it. No, I don't think any logical person would think that that would help them get out. The level of detail matters here. That's what I'm waiting on.
Joshua Ritter:
[00:15:56]
And that's a really important point that I want to get into, because what you're talking about, well, first of all, you alluded to marital privilege, which I want to get into. But first, the argument that you're making here about the specificity in the confession is important because there's a rule called the corpus cop out rule. And what that essentially says is that people, for a weird quirk in psychology, sometimes confess to things that they didn't do. I'm not saying that's what took place here, but in order to prevent that, we have to make sure that those confessions are in some way corroborated.
And what you're pointing out is that they would have to include some sort of details not known to the public. In other words, they have to eliminate the argument that he somehow read about this in the paper and is confessing to what he's read about, but that he has independent knowledge and only the knowledge of somebody having committed these crimes before these confessions would be admissible. So you make a very important point there. Go ahead.
Rachel Kaufman:
[00:17:01]
They still may be able to admit them, even if it's not specific, if it's a number of times said different ways. I just think also, from the perspective of his attorneys, it's unclear what the strategy is going to be. At this point, are they going to -- is he trying to get them to enter a plea for him? Does he want a guilty plea? What mental illness is he really suffering from?
Joshua Ritter:
[00:17:25]
Yeah. And I think this --
Rachel Kaufman:
[00:17:27]
Yeah, it will be very interesting.
Joshua Ritter:
[00:17:28]
Yeah. And I agree with you. And I think they're kind of laying the groundwork for what that defense might be about his mental state, which is not all that convincing of a defense. But before we get into that, you mentioned marital privilege. And I wanted to talk a little bit about that because it's really interesting concept in the law. If you could just kind of explain that for listeners. And yes, I know that you're fairly convinced it doesn't apply here. And I seem to agree with you. I still think it's an argument that as his defense team, they should probably make. But could you just enlighten us a little bit?
Rachel Kaufman:
[00:18:03]
So just basically that when you're in your marital home or you're in the privacy of your spousal relationship, things that are said between you, you can't be forced to testify against your spouse. I mean, you still can. And that's something, it's not that you can't. It's that if you don't want to, if you're married to someone, if you don't want to testify about what the two of you talked about in bed, about what they did the night of an incident that's important to a case, they don't have to.
When you add a third party like a recorded private phone company that you have to pay to talk to people in jail and they tell you that it's recorded and that it may be listened to, you lose the privilege. The privilege no longer exists. Just in the same way that as an attorney, there's an attorney client privilege. But if there's a third person in the room who's not an attorney, and we're not working on the case together, there is no privilege anymore.
Joshua Ritter:
[00:19:02]
Right. And just for the benefit of listeners to the reason for that is there are certain relationships we want to encourage from a public policy perspective to have the free flow of communication. One of those being between you're an attorney and their client. You want them to be able to speak freely to each other about anything and everything. There's a clergy privilege to speak to your religious, spiritual pastor. There's a privilege between your doctor. There are certain relationships and there are exceptions to all of these. But there are certain relationships where we want people to feel like they can be as most honest. And one of those is in between two married people that they want to encourage them to be able to share this information.
But you're right, one of the ways that that can be pierced is if it's over a public phone where it's being identified to them that they're being recorded. I imagine that these recordings are very similar to the ones that you and I have heard many, many, many times where every 30 seconds or so, a very loud voice is interrupting you, saying this conversation is being recorded. So there is no ambiguity about the fact that this is no longer a privileged conversation, which if these tapes are ever released, I'm sure we're going to hear that here.
Rachel Kaufman:
[00:20:23]
I want to say there's no mommy privilege.
Joshua Ritter:
[00:20:25]
Right. Right.
Rachel Kaufman:
[00:20:27]
When you call your mom from jail and it's recorded, I mean there's no marital privilege either under those conditions, I would argue. But there's also -- and that's the defense attorney. I wouldn't make the argument because I don't think legally it stands. And I'm not going to make an argument just to make one. But no, there's no mommy privilege to talking to your mom from jail.
Joshua Ritter:
[00:20:46]
Right.
Rachel Kaufman:
[00:20:47]
Not even close.
Joshua Ritter:
[00:20:48]
Yeah. Even putting aside the confessions to his wife, if he made the same confessions to his mom, there's nothing that applies there. Okay. So assuming these confessions do come in, is that the end of it for him? I mean in my view and I don't want to kind of steal your thunder here, but that really is sealing his fate if these confessions come in. What are your thoughts?
Rachel Kaufman:
[00:21:15]
Because we don't know the contents, I'm hoping, if I were his attorney, which I'm not, and I'm not saying that one way or the other, I'm not for him or against him, but if the defense attorneys heard things during the jail calls that were inconsistent with what they know to be true about the homicide. Homicide. So, like, if he's confessing, but that can't be how things actually went, I don't think that's going to be the case, but I think that's what you're hoping for or that it's so generic that it's more just like he's being threatened into having to say it on the jail call. I don't know what he's going to say. Like there's another guy with a shank like to my neck saying, say it. I don't know.
Joshua Ritter:
[00:21:55]
Yeah, that somehow --
Rachel Kaufman:
[00:21:57]
Those are the kind of things that need to happen.
Joshua Ritter:
[00:21:58]
And it sounds like they're kind of going down that path with this mental health thing that they're trying to explain why this is, in their view and their argument, going to be a false confession. But if no one buys that, to me, the most powerful evidence that can be presented in a criminal court are words from the defendant's own mouth. And if that's short of them actually taking the stand and falling apart and cross-examination, if they're confessing something on a call, especially to someone like a family member, I can't, there's very few arguments that would prevail to get past that.
Rachel Kaufman:
[00:22:37]
Well, imagine --
Joshua Ritter:
[00:22:38]
Go ahead.
Rachel Kaufman:
[00:22:39]
In the public eye, we're also going to hear, I imagine, the responses of both his wife and mother to him, presumably confessing. Yeah. Their reactions to what he's telling them, it's going to kind of make or break their public image. Not that, you know, it's already tarnished, obviously, but I --
Joshua Ritter:
[00:23:04]
I did read --
Rachel Kaufman:
[00:23:05]
That would be very interesting to see what they have said in response.
Joshua Ritter:
[00:23:09]
I did read one report that the wife hung up. I think this was in the court documents as well, that the wife ended the conversation very quickly, which to your point, probably lends to the credibility of the confession and her reaction to it, that she likely believed it to be true. I mean, it doesn't sound like, at least from what we're hearing, that she followed it up with, oh, stop playing around, you're always making awful jokes.
Rachel Kaufman:
[00:23:35]
He called him again. It happened multiple times. They kept talking. I don't know.
Joshua Ritter:
[00:23:40]
Yeah. Last point on this case, this is a pretty big bombshell to release to the public beforehand. What are your thoughts on the possible effects this could have on the jury pool?
Rachel Kaufman:
[00:23:54]
I guess we're starting with the presumption that the guy confessed. It's going to make it that much harder to find jurors who are willing to be fair and impartial and that can't prejudge the evidence. I would imagine that now we're starting from a position. The presumption of innocence is sort of like it's a lofty goal. It's not really real. I want it to be real sometimes, but it's really not like as emotional human beings, to have the confessions out there. You're starting from a presumption of guilt.
As a defense attorney, all I would ask is that they give me the opportunity to kind of explain. And that the state, the prosecutors have overpromised what these actual confessions are. Again, I don't know the content. So depending on what he's actually saying, it's going to really make or break the possibility that they can defend the case that those are coming in.
Joshua Ritter:
[00:24:51]
Yeah. Yeah. My thought was that it's one thing to say, oh, they found a bullet casing that seems to have been forensically matched to a weapon on him. Another thing to say that he was an eyewitness, kind of placed a person similar in his description near that area at that time. All of that, I could see you getting a jury pool of people who really haven't prejudged this.
But if people are hearing that the man confessed it, I don't care what they're saying in voir dire. You're right, people are people. Presumption of innocence is difficult to begin with, that it's really hard for them to kind of put that out of their mind and have a very open mind as far as going into this trial, if they know that this man confessed.
Rachel Kaufman:
[00:25:43]
You also got to wonder, the relationship between the attorneys and Richard Allen right now. I mean, if I was his attorney and I'm listening to jail calls, I don't like to listen to jail calls. They're very annoying. They're very annoying to listen to. I really don't enjoy them. Sometimes I don't even understand what I'm hearing. It's just too much. It's like, what are you doing? You're interfering with your own defense. And I wonder what he said back.
Joshua Ritter:
[00:26:09]
This is starting to turn into, if it goes to trial, just a long plea essentially. Just them doing their best to protect his rights. But it sounds like the evidence is becoming more and more overwhelming.
Rachel Kaufman:
[00:26:22]
He's making that incredibly difficult it sounds like. Yes.
Joshua Ritter:
[00:26:25]
Yes, yes. Of his own doing, yes. Finally, turning to Moscow, Idaho, where Idaho prosecutors filed a notice declaring their intention to seek the death penalty for the University of Idaho suspect Brian Kohberger. Kohberger has been charged with the stabbing deaths of Kaylee Gonsalves, Madison Mogen, Xana Kernodle, and Ethan Chapin. The four students were killed in their off-campus home during the early hours of November 13th, 2022.
After weeks of public speculation and criticism surrounding the investigations, authorities apprehended Brian Kohberger at his parents' home in Pennsylvania. Authorities allege that a knife sheath found at the murder scene allegedly under one of the bodies provided a DNA match for the defendant, which led to his subsequent indictment. Prosecutors allege that the killings exhibit several aggravating factors which could warrant the death penalty if Kohberger is convicted.
Among these aggravating factors, prosecutors cited the especially heinous, atrocious or cruel nature of the killings and Kohberger's alleged utter disregard for human life. The State of Idaho has not executed a prisoner since 2012. However, the state did pass legislation in March allowing the use of firing squads in the execution of prisoners. This move was prompted in part by a difficulty in obtaining the chemicals necessary for lethal injection. It is also believed that this case in particular was a reason for that change in legislation.
A judge entered a plea of not guilty on Brian Kohberger's behalf after he declined to enter a plea at a hearing last month. His trial is tentatively scheduled for October of this year, barring any delays. Rachel, how does the possibility of the death penalty, now is that something that the prosecution is actively going to seek change the approach for both prosecutors and the defense in this case?
Rachel Kaufman:
[00:28:24]
It's going to be very difficult for the defense. Because by seeking the death penalty, and I feel like this has happened before, the prosecutors are really signaling guilt. And in fighting in the guilt versus not guilty phase by fighting evidence that you would maybe fight during a normal trial where there's no death penalty on the table, it's important more to present your client, somehow in a sympathetic manner.
I don't really know how you can do that in front of the same jury that you're going to argue that he's not guilty in front of. This is assuming that they have the evidence to support their case. But I'm saying they're signaling to the jury that prosecutors have it like they say they do. And if they do, again, the defense is I imagine Brian is very involved in his defense, because he studied criminal justice and he just strikes me as somebody who would want to be very, very involved. The death penalty is going to change his strategies here. They're going to have to, because now we're talking about something different.
Joshua Ritter:
[00:29:41]
Yeah. No, I agree with you that strategically the way that they, because for listeners to understand that now that death penalty is on the table, a couple of big changes are going to take place. One, the jury itself has to be what's called death penalty qualified, meaning that every single one of those jurors will be asked the question of if they felt that the circumstances were appropriate, would they be able to vote for death. And some people are just morally, politically, for whatever reason, opposed to that and will say, no. Those people are not qualified from being on this jury just to begin with. So you're going to have a jury pool that naturally kind of skews more conservative, like you pointed out, and more pro-prosecution, arguably. So that's one thing.
And then two, they're going to have two phases to the trial, which will be the guilt phase that you've talked about. And then if convicted, it will go to a penalty phase with the same jurors where they will argue essentially whether or not he should be put to death. And what you're alluding to is this kind of tightrope act now that the defense has to go through, because to some extent, they have to defend their client during the guilt phase, but at the same time preserve some credibility to essentially beg for his life during the penalty phase. And that's a real difficult task to do.
And I have seen in some cases where the defense in the guilt phase will not really put on that much of a fight. I mean, they'll defend their client, but not as vociferous a fight, you would think, if the death penalty weren't on the table because they're trying to preserve some credibility with the jurors.
I'm doing a lot of talking and not a lot of asking questions here. But I mean, what are your thoughts on that? Do you think that they go for broke in the guilt phase or do you think they do try to pull back a little bit to preserve some credibility, something to be able to stand in front of the jurors with during the penalty phase if it goes that far?
Rachel Kaufman:
[00:31:55]
Thus far, his attorneys have been pretty aggressive. That's why I don't know what's going to happen now. I'm not sure. I'm not sure, but I think Idaho is different than some of these. There are guys like Nikolas Cruz, like James Holmes in the Aurora shooting. Neither of them got the -- I mean, the prosecutors sought the death penalty and the jury decided against it in both of them. And it just takes one juror. I think that's important. So in order for the death penalty to be imposed, all the entire jury has to unanimously decide for the death penalty. If one juror amongst them says no, it's not a hung jury and then they retry it.
Joshua Ritter:
[00:32:41]
Right.
Rachel Kaufman:
[00:32:42]
They don't all have to agree that he shouldn't get the death penalty. Okay. So what we know about Nikolas Cruz is that he had a lot of developmental issues, hit a lot of trauma, blah, blah, blah. I'm not trying to go into his whole life. But what I want to say about seeking the death penalty that sort of has the opposite effect is that it ends up being a lot more about the suspect, the person who is convicted, than about the victims, because you're asking a jury to decide whether they should live or die.
So it kind of becomes like a parading of like why they're this way and how it's everybody else's kind of fault, which I don't know. I don't know. I think Brian Kohberger might love that. I don't know if he has the same level of, it doesn't seem as though he has the same level of like cognitive issues and mental health issues. I know he had addiction, but as a character, he's not particularly sympathetic. And this case rocked the nation. Every parent who has a kid at college, I mean, just I can't even imagine the fear. So it will be very interesting to see what actual evidence there is. The defense makes it sound like there's other DNA places. I don't know.
Joshua Ritter:
[00:33:58]
I've heard them talk about that. I think that's a lot of kind of posturing.
Rachel Kaufman:
[00:34:01]
Why would you promise that, though?
Joshua Ritter:
[00:34:04]
Well, there was other DNA found in the house that these two unidentified individuals. But it's a home. It's a college home. There's people in and out of that house all the time. Of course, they're going to find a bunch of unidentified DNA. They're going to find a bunch of DNA, and it's unidentified if that person's DNA isn't already in the system for some reason.
So to me, none of that's shocking. I understand why the defense is kind of focusing in on it. They're trying to grasp at straws here. But I think you make a really good point about, and important for people to understand, too, that just because the jurors all can't agree on death doesn't mean you do it all over again. The default then becomes life without parole. So the case ends regardless.
So even if one juror says, I don't think we should give him the death penalty, it's not like this whole thing is declared a mistrial like we might see in the guilt phase. It just defaults to life without parole. One more issue that's interesting now that death is on the table is, how do you think this could affect a potential plea deal here?
Rachel Kaufman:
[00:35:12]
I don't think Brian Kohberger is pleading guilty.
Joshua Ritter:
[00:35:17]
That's just your gut?
Rachel Kaufman:
[00:35:19]
Yeah, that's my gut. He's here for the show.
Joshua Ritter:
[00:35:22]
You might be right. You might be right. I have seen the death penalty be a very strong motivator for individuals to plea to avoid that. But I also think, one, you're right, the defense has to be on board. And two, the prosecution has to be on board. And it might just be that they don't even want to offer something in this case.
Rachel Kaufman:
[00:35:44]
And there's death.
Joshua Ritter:
[00:35:45]
So we shall see. But last point on this whole case is there is a recent controversy where the University of Idaho has pushed to have the home, the house where the murders took place demolished. The house was donated to the university after the murders, and it sits directly across the street from the campus. They want this symbol of tragedy gone from their community. Understandable. At the same time, we haven't even had the trial yet. What are your thoughts? Do you see any possible problems with this if they actually go through with the demolition?
Rachel Kaufman:
[00:36:26]
I don't know if either -- are there any attorneys objecting?
Joshua Ritter:
[00:36:29]
Well, the family members are. But strangely enough, both the prosecution and defense, my understanding and I hope people will correct me if I'm getting this wrong but is that they're not objecting.
Rachel Kaufman:
[00:36:43]
It's strange because out of a lot of cases, I feel like this would be one that a jury view could be something that one of the sides might eventually want. So I would ask to preserve it even if I didn't plan on using it, just because for it to just be demolished before we resolve this case, I agree, I think it's too soon. I understand that it's traumatizing to look at. I wish it could just disappear and there could be a park there and a memorial.
But to make sure that they are able to prosecute the case to the fullest, I don't know why they wouldn't want to preserve the house. It's very strange to me because I mean there's diagrams. People are spending all their time on diagrams on YouTube and TikTok. I've seen it all, how he got from different rooms and the different floors and how the other roommates didn't hear it because that was important, too. So wouldn't you want the acoustics and stuff?
Joshua Ritter:
[00:37:41]
I would think so, too, and especially from the prosecutor's perspective. I mean, you're right. Let's say they've got all the diagrams and 3D imaging and photographs you could ever want. And listen, the vast majority of cases are tried without ever doing a view of the crime scene. So they may be going into this thinking of that, but wouldn't you want to also eliminate the argument that the defense might make of, hey, folks, you didn't even get to see the crime scene. Had you been able to see the crime scene, maybe things would have appeared differently. Maybe you would have understood this differently. It's just one more avenue of reasonable doubt that you might be able to cut off by preserving a piece of what could be potentially very valuable evidence. I would hate for that to become an issue later on.
Rachel Kaufman:
[00:38:32]
Yeah. I mean, it's just very strange that they would even -- like they don't get rid of evidence in cases before the case is resolved.
Joshua Ritter:
[00:38:39]
No. And we're not talking years down the line. We're talking several months, but long enough that you would think that they could hold off. But like I said, it hasn't been done yet. We'll see what ends up happening. But in the meantime, that is our show. Rachel, thank you so much for coming on. Where can people find out more about you?
Rachel Kaufman:
[00:38:57]
Look me up on Instagram. It's _RachelKaufman. I'm on Twitter, but I'm not on Twitter, @RKrealtalk. I don't talk enough there. But yeah, both of those places. You can catch me here visiting Josh.
Joshua Ritter:
[00:39:11]
Fantastic. And please do. And I'm your host, Josh Ritter. You can find me on Instagram and Twitter at @JoshuaRitterESQ or at 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.
