MOSCOW, Idaho — In what could be called a win for the defense of the man accused of murdering four University of Idaho students last year, Latah County Judge John Judge says the state must turn over all investigative genetic genealogy (IGG) material by Dec. 1.
"Obviously I'm asking to look at all this because I can't make informed decisions if I don't," Judge Judge said during a status conference Thursday morning.
The judge wants to review all the IGG material from the FBI and Othram labs in camera, or privately to determine what to turn over to Bryan Kohberger's defense team.
In an October 25 order, the judge ruled the defense team showed at least some of that material is essential to building a case.
In that order, the judge cited prosecution filings about how the FBI used investigative genetic genealogy to "find a lead" into who left DNA on a knife sheath at the crime scene.
The FBI uploaded that DNA profile onto public genetic databases, according to the filing, then built a family tree of related people. The order shows the FBI also used social media, birth and death certificates, and other public info to build the family tree of people related to the unknown suspect profile.
“The IGG process pointed law enforcement toward defendant, but it did not provide law enforcement with substantive evidence of guilt," the filing said.
Prosecutors have argued the FBI didn't directly compare the knife sheath DNA profile to Kohberger's DNA once he was identified as a suspect, and that the IGG will not be used at trial.
The defense is requesting all info on how investigators did the IGG testing.
During a lengthy Aug. 18 hearing, several genetic genealogy experts testified for the defense as to why this information may be pertinent to the case. Defense attorney Stephen Mercer, one such witness, said the defense must know how the tests were done, if the database searches complied with guidelines, and what decisions genetic researchers may have made during the investigation.
The defense has argued it needs the material to know “how the IGG profile was created and how many other people the FBI chose to ignore during their investigation.”
However, prosecutors have expressed concerns about the possible public release of identities of family members from those materials, asking for protective orders.
"I think that there's missing information from the Othram profile we have," defense attorney Anne Taylor said Thursday. "I hope the court gets it and I certainly understand the court needs everything to make a decision. My hope is that everything includes communication so you can follow the path of what happened."
Prosecutor Bill Thompson voiced concern the defense has false assumptions about what evidence there is and said some of the information the defense is going off of may be inaccurate.
"There are items she thinks ought to be there that do not exist," Thompson said of Taylor. "I don't think the lawyers should get into this guessing game of what should and shouldn't be there, particularly since it's our position the defense has a fundamental misunderstanding of the difference between SNP profiles and traditional DNA comparisons and how that process works."
Thompson said his team was not accusing the defense of being intentionally misleading, but that their misunderstandings may confuse the court.
"We are not trying to mislead the court. We've been absolutely clear and relied on Department of Justice policy in our expectations," Taylor said.
Judge Judge said he'd see what the FBI provided.
"I understand the FBI may have some notes. Let's start with what we know is there and we can go from there," he said.
Thompson advised he'd already been in contact with the FBI about the order and submitted a formal request, but warned he'd been told it could take a month to get the documents as the request had to go through the "bureaucracy" of the Department of Justice.
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