July 17, 2024 • 42 mins
We discuss the cell phone pings and DNA evidence at the center of this case, from admissibility to potential impact during trial.
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Episode Transcript
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Speaker 1 (00:03):
How the hell did his DNA end up on that
sheath at that murder scene if it wasn't his sheath.
Speaker 2 (00:11):
All we hear about are the pings, the pings Brian Coberger,
the alleged was pinging everywhere.
Speaker 3 (00:18):
It's a bad idea to have your cell phone with
you when you commit a correct This isn't a who
done it, and I don't have to prove to you
why he done it.
Speaker 2 (00:33):
This is the Idaho Massacre, a production of KAT Studios
and iHeartRadio, Season two, episode six, Pings and DNA Admissibility.
I'm Courtney Armstrong, a producer at KAT Studios with Stephanie
Leidecker and Gabe Castillo. At the center of the prosecution's
(00:55):
case against Ques murderer Brian Coberger, our records tied to
his cell phone and DNA that allegedly places him at
the scene of the crime. The defense has called foul
on both areas of evidence.
Speaker 4 (01:13):
Investigators now say they harvested DNA from an empty leather
knife sheath. Police say that DNA match DNA from Coburger's father,
which they collected from trash outside the family's Pennsylvania home.
Speaker 1 (01:26):
Does the government now have genealogy and follow that previously
was controlled by individuals and private organizations. And how accurate
is this database.
Speaker 5 (01:34):
The genealogy sites that allows police to search public records
of people who have opted in saying, Hey, if there's
a murderer or a rapist in my family, I don't
mind if you use my DNA to try to find them.
Speaker 2 (01:51):
Here's Stephanie.
Speaker 6 (01:52):
We have to remember DNA is a big ticket item
for the prosecution. And just as a quick refresh, we
know that quote a hit of Brian Coburger's DNA was
found on a knife sheath left behind at the crime scene,
and we also know that investigators connected that through familial DNA.
Brian Coburger's parents' house was under surveillance in the days
(02:14):
leading up to his arrest. His dad, we have to assume,
tosses his trash in the garbage cans outside their home
and then investigators retrieve it and from that trash they're
able to identify Dad's DNA and put that into a database.
In boom, there's a familial match. Now. Look, this has
been highly debated as some say that the search and
(02:35):
seizure of Coburger's family trash is questionable.
Speaker 2 (02:41):
In the course of researching this season, the team at
Katie Studios came across an article called how DNA and
cell phone evidence in Idaho murders complied with the Fourth Amendment.
To get clarity on this pivotal information, I reached out
to the article's author, Collie Stimpson, who has singular expertise
in areas.
Speaker 1 (03:02):
Hi Courtney, It's Hully Stimpson from the Heritage Foundation.
Speaker 2 (03:05):
Cully, how are you. I'm great, excellent, and your article
was it seemed just so on point with so many
pertinent matters. I guess just to start, would you just
let listeners know your name and your background.
Speaker 1 (03:20):
Sure. My name is Hully Stimpson. I'm a Senior Legal
Fellow and manager of the National Security Law Program at
the Heritage Foundation. Prior to that, I served in the
Navy jag Corps, which is the lawyer corps the Navy,
and served as a prosecutor defense lawyer. When I was
a prosecutor in the Navy, I tried a bunch of
violent crimes, including a case that involved DNA. Was one
of the few cases that the Navy had used DNA
(03:41):
in early on. This is the ninety two, three, four
five period of time and I worked as a homicide
prosecutor in Maryland and I tried the first PCR case.
Speaker 2 (03:52):
What's PCR?
Speaker 1 (03:54):
So it's a type of testing of genetic material. So
when you used to have blood testing, you're either AB
or O and those are broad categories of blood type.
Then when we started using genetics, you had to have
a large amount of genetic material stuff left at a
(04:16):
crime scene. But because the laws always behind technology lags
way behind it, the genetic labs were now using the
next level, the next more sophisticated level, which required much
less material called PCR polychromis reaction. By the way, when
I was a Maryland I'm side prosecutor, I was the
head of attorney training in the office, which included training
(04:37):
on how to use DNA in cases. And when I
was an instructor of the Naval Justice School for five years,
I taught the whole JAG Corps how to use forensic DNA.
And of course now we're so confident that we have
twenty three and meters or did ancestry, dot com and
all the rest of it, and so tens of millions
of people rely on that genetic material to find close
(04:57):
and distant relatives. All around the world.
Speaker 2 (05:00):
You've been with DNA since the very very beginning.
Speaker 1 (05:03):
Well, I'm actually made of DNA like you, So yeah,
I think from the very beginning. But I've had the
opportunity to work with it, and as a defense attorney,
I fought against it like any good defense attorney and
tried to poke holes not into scientific reliability, because I
think that's a losing battle, but in whether it was
collected correctly, whether testing procedures were done correctly, whether there's
(05:24):
an adulterated sample. That's really where the game is. As
a defense council.
Speaker 2 (05:31):
I asked Kully how he thinks DNA and its collection
will play out in this case during trial, as well
as his general thoughts on the accused.
Speaker 1 (05:39):
I mean, it's interesting, look what he's studying. He's getting
his PhD in criminal justice. I don't know what he's read,
and I don't know what his course requirements are. If
I was the prosecutor, I'd be pulling every book he
ever had to read, in every syllabus to find out
and look for things about alibi and forensic evidence. And
I would want to get into the guy's head by
seeing what he is doing. Sudied in what he's writing.
(06:01):
But I don't think that, for example, the questions about
the way the evidence was collected at his parents' house
back in Pennsylvania is an issue at all. I mean,
once you discard something, it's not yours anymore, you've abandoned it.
And as a Fourth Amendment principle, you've abandoned any Fourth
Amendment standing to complain that you know, somebody picked up
my cigarette, but that they tossed on the ground, somebody
rifled through the trash out in front of my house,
(06:22):
Well you gave it up, so you don't have a
right to complain. And it's his parents' house, so he
doesn't even live there anymore. He's an emancipated man, so
he doesn't have a standing to complain about his parents
throwing stuff away in their house, So he has a
double negative there. He had no standing if he threw
it away to himself, and he certainly doesn't mean standing
if his parents threw it away.
Speaker 2 (06:40):
Can I have you slow that down for one second?
So what prompted you to write this article? You know
about how the evidence complies with the Fourth Amendment? And
what is the Fourth Amendment?
Speaker 1 (06:52):
The Fourth Amendment is part of the original Bill of
Rights which were passed, you know, a few years after
the Constitution was signed and ratified by the States, and
it essentially, in so far as this is related, says
that the government may not engage in unreasonable searches and
seizures of your person's places or things or papers. Right
(07:17):
and so for the government to get into your stuff,
to see your stuff, typically they at the very least
have to have probable cause to believe that you are
the person who committed a crime. And that if they
look into your stuff by getting a warrant that's very
specific as to location and what they're looking for, signed
by a judge, a neutral, detached magistrate, the government can
(07:37):
then look into your gut, into your house, look in
the drawer, look in the closet for the knife, the gun,
the rope, whatever you used for a crime. I was
very interested in the development of Fourth Amendment law through
the Supreme Court because there was a case that the
Court had recently come down with called Carpenter against the
(07:59):
United States in a throwaway line that Justice Gorsuch said,
where he I think made a mistake suggesting that people
would have a Fourth Amendment right to genetic material that
is on third party genetics hosting sites. If I spit
into a vial and give it to ancestry dot com
(08:20):
and I have a contract with them to do so,
I pay them a fee, they send me and only
me my results back. If I then want to keep
it private, that's it. No one gets to see what
the results are. But if I want to take the
extraordinary step of then providing that material, those test results
to a third party genetics website, it's like put it
in the trash can. It's like hanging it outside my
(08:41):
front porch for everyone to see, because you sign a
contract that says this is out there for the world
to see. Because I want the world to see who
I'm related to, so they can see that they're related
to me. And so when this case came along, I
was reading the articles about it, and I thought, they're
clearly clueless about this because they were suggesting, oh, oh,
it's a violation of his Fourth Amendment right because they
(09:02):
went through the trash Oh it's a violation of this.
So I was like, Ooha, slowly down, everybody. And the
Coolberger case is poking along now and it's getting closer
to trial time and more and more people are sort
of interested in the mechanics of the trial. But I
suspect the closer we get to trial, people will be
more interested in the DNA and the difference between the
snip DNA genetics testing piece which they did for the
(09:26):
trash and then the regular forensic testing for admissibility into court.
And so you know, the closer we get to trial
and the more that gets litigated, I'm sure people want
to know in English what all that means?
Speaker 2 (09:40):
Yeah, and is there a way to break those things down?
Speaker 1 (09:44):
There's two types of forensic tests. What forensic means is
used for criminal court, So just just sort of file
that away anytime you hear forensic and then a word
after it means for criminal trial. So forensic DNA profiles
typically you find genetic material at a crime scene, you
don't know who did it, You post it into the
(10:06):
FBI's DNA database looking for a hit, and in best
case scenario, somebody's already provided their DNA because they're law
enforcement or military or their prior criminal and they've taken
their DNA. You get a hit and then you test
you know the chances of it being somebody else's DNA
and then you come up with a result. Here, when
(10:27):
they found the sheath that held the knife that the
subject used to slay the poor college kids, they tested
the sheath and they found genetic material that probably means
epithelial cells. Cells that are found, believe it or not,
in the sweat that comes off your fingertip. Okay, so
(10:47):
everywhere everything you're touching, you're leaving a little part of
your DNA on it. I mean you can't even see it, right.
So whoever the dude or dude that is that killed
these people left the sheath there. They test the sheath,
and they were smart because instead of just using one
test and hoping that they'd get a random hit through
the FBI DNA database called Cotis CODIS, they also had
(11:12):
a brain. Because CODIS only tests and I don't want
to use scientific jargon, but let's just say five or
six or seven, just a handful of what are called
genetic markers. So you've seen the quarkscrew DNA nucleotide. The
thing looks like a winding staircase.
Speaker 2 (11:29):
Back in seventh grade, right, and.
Speaker 1 (11:31):
So imagine that as that quarkscrew is going down and
down and down there's stairs. It tests six or seven
or eight stairs at different points in the DNA quarkscrew
SNIPS is different. SNIPS are. It's an acronym stands for
single nucleotide polymorphism. And so imagine what they're doing there
(11:55):
is they're looking at thirty or forty or fifty of
those stairs, and that's just to see what variations there
are in sequences on somebody else's double helix, to see
if there's a relationship between the person who left the
DNA and somebody else. It's not used forensically in court.
It's just think of it as the ancestry dot com
(12:17):
part of genetic testing. And so they tested, in my opinion,
it hasn't been made public yet. They clearly tested the
standard forensic testing, the standard DNA testing, probably PCR, and
then they did SNIP testing, most likely because when they
connected the dots between his cell phone and his parents'
location and he was registered at his parents' house, et cetera,
(12:41):
and they went to the trash and got the parents
trash and tested some of the trash. Colberg had been
visiting his mommy and daddy, and sure enough, on the
trash they find through SNIP technology, a person who was
ninety nine point nine percent think of it as chance
of being his dad. So in other words, it's his dad.
(13:01):
It's the dad of the person who left the genetic
material on the sheath. So if you remember I Love
Lucy when Ricky Ricardo said Lucy, you got some splaining
to do. Colberger doesn't have to do any explaining because
he's a defendant. He has a right to remain silent.
But it looks really bad for him because how the
hell did his DNA end up on that sheath in
(13:23):
that bedroom at that murder scene. If it wasn't his sheath,
and if it was his sheath, why was it there?
And he doesn't have to say anything. He can stand
on his right to remain silent, and that remains his
right throughout the trial.
Speaker 2 (13:37):
Just going back to what you said, how you did
training in the prosecutor's office and then also in JAG
was a lot of acceptance of DNA as something reliable.
Was it just teaching that the presentation and helping people
understand it on a really basic level so it didn't
seem like magic, and so people could understand.
Speaker 1 (13:59):
Well, it's a complicated question with a somewhat easy answer.
You don't have to become a genetics expert as a
prosecutor or defense counsel or judge to use DNA as
a forensic matter in a criminal trial. But what you
have to do to be good at either using it
for or against your case is to understand collection protocols,
(14:22):
testing procedures, and protocols areas where samples can get mixed
up with other samples. And so, just like with any
other forensic techniques that are used, you have to get
good at understanding the basics of the science and then
get really good at understanding how you get from A
to Z, getting into court, and then either defending its
(14:45):
use or poking holes at its reliability. That's where the
line's share of the work is done these days.
Speaker 2 (14:54):
Let's stop here for a break. We'll be back in
a moment. After getting a better understanding of the DNA
in this case, we decided to dig a little deeper
into the technology of the cell towers. Here's Stephanie.
Speaker 6 (15:16):
There has been so much back and forth over the
phone pings, because again, this is going to be a
big ticket item. It sounds like for sure the accused
Brian Coburger was out and about a whole lot that
fateful morning both before and after the murders. Investigators claim
that they have phone pings that place Coburger near the
house the morning of the murders, and Coburger's defense team
(15:39):
is arguing that he was nowhere near the house when
the murders happened. What is so interesting here is that
the same data that the prosecution is going to use
to place Coburger at the scene is the exact same
data that the defense is going to use to dispute them.
Speaker 2 (15:56):
I reached out to Scott Green, founder of Great Scott Enterprises.
For nearly forty years, he's been collecting, analyzing, and helping
to explain complex electronic evidence.
Speaker 3 (16:09):
I collect the data, I analyze the data, I make
sense of the data, and then I present the data
in court, either to a jury or to the judge.
Speaker 2 (16:20):
What we wanted to speak with you about is the
cell phone data. And all we hear about are the pings.
The pings. Brian Colberg, the alleged was pinging everywhere. Can
you please explain what are cell phone pings or signals?
And how specific are they?
Speaker 3 (16:40):
So a ping in the way it's been used in
the media. And I read the articles with regards to
cell phones and towers, is a connection between a cell
phone and a tower. Those connections fall into three different categories. Generally,
they are a phone call that would ping off a
tower connect to a tower, and they're referred to as pings.
(17:02):
So they occur when somebody makes a phone call, they
occur when somebody uses data, and they occur when somebody
sends a standard SMS or text message. As far as
how specific a ping is, the tower knows the direction
that the cell phone is from the tower. So what
you get out of the ping and out of the
(17:23):
cell phone carrier is a direction from the tower, generally
in a pie shaped area that shows the direction from
the tower that the cell phone is. And when you
have them moving through space and time, you can get
an idea as to where the cell phone is going
and how fast it's moving and some things like that.
(17:44):
You get some estimates out of that, but you don't
get an exact position out of the cell phone carrier information.
Speaker 2 (17:53):
What I understood, as you described it, was that the
pings happen when something active is occurring a call, a text,
or using data. These pings also happen passively. I have
my phone here right now? Is this pinging?
Speaker 3 (18:07):
Cell Phones and towers are communicating most of the time,
usually because there's data transactions between a cell phone and
a tower. That could be updates. It could be email
getting updated, or inbound or outbound data of some sort.
Speaker 2 (18:21):
Understood. So in this case, the accused coburger wouldn't have
had to have been actively on his phone to ping.
It could be something in the background. Is that correct?
Speaker 3 (18:31):
It could be something in the background that is generating
those pings.
Speaker 5 (18:36):
True.
Speaker 2 (18:36):
I know you said direction and potential trajectory. And does
the radius depend upon how far apart the towers are.
So basically, could they spot me in my car within
a two block radius or is it a two mile radius?
Speaker 3 (18:52):
Ah, So that's a great question. In the country outside
of cities, in rural areas, the cell phone transmit a
much longer distance than they do inside the cities. So
it depends where you are as far as how far
a cell tower will transmit.
Speaker 2 (19:11):
In Moscow, Idaho, it's not in the country. It's certainly
it is in no way in a big city. But
there's two colleges right nearby, because I would imagine colleges
would need more power.
Speaker 3 (19:24):
So here's an interesting thing. I drove past the University
of Arizona yesterday and one of the things that I
noticed is that there are a tremendous number of five
G towers around a university. In the country where the
accused was driving, there's probably a lot fewer. What's the
distance between those two locations. Somebody said ten.
Speaker 2 (19:46):
Minutes, ten miles, about ten miles, So.
Speaker 3 (19:49):
In the country, you're going to find that cell phone
towers can be miles apart and cover miles in both directions.
From a cell phone tower, they vary in direction based
up on geography and where people are and how the
cell phone carrier wants to cover the area.
Speaker 2 (20:07):
This isn't specifically a technical question, so we can skip
over it if you want. But the accused is a
criminology PhD student. Is it surprising to you that, if
what's alleged is true, that he had his phone on
him the whole time? I mean, even I know that
my phone will leave a footprint.
Speaker 3 (20:26):
It is surprising to me that someone with that background
would have their phone with them. Agree. I would think
somebody who has some intelligence about criminal backgrounds and criminology
would probably at that level at least know that it's
a bad idea to have your cell phone with you
when you commit a current.
Speaker 2 (20:46):
Yeah, it's just so incongruous. As a PhD candidate, Coburger
was also a teacher's assistant at Pullman Washington State University,
and we spoke with one of his students, and she's
not wrong. That's one of the things that gives her
pause on the alleged guilt is it's one oh one
(21:08):
to not do that. How frequently do pings update? Is
it a standard amount of time? Does it depend situationally?
Speaker 3 (21:15):
Wow, it depends. Pings get updated differently based upon which
one of those three items is going on. You're going
to see every time there is a text message set,
you can see a connection to a tower. And every
time a cell phone call is initiated, or the cell
(21:36):
phone changes towers, or the call ends one of those
three things. When it's a phone call, you'll see a
different tower recorded by the cell phone carrier. Does that
make sense?
Speaker 2 (21:47):
It does make sense. As a real example, here a
white sedan that the prosecution alleges is Coburger's. It was
seen passing by the victim's residence at three twenty nine
that same what via goal at four oh four and
at four twenty is seen leaving the area at high speed.
Can officials attempt to corroborate we see the car and
(22:12):
then go and check the tower to see if that
lines up?
Speaker 3 (22:17):
So are you asking me if the law enforcement at
the time, can go do that or look back in history?
Speaker 2 (22:24):
Go back in history. As a layman, I would want
to think, oh, can I corroborate that? With cell tower information?
Speaker 3 (22:31):
You can corroborate the location of the cell phone if
it was in the car, they would be able to say, Okay,
it's in the car and it's moving, or it's in
the car and stationery if the cell phone is on
and communicating with the tower. Because in this case, we
see that the cell phone is connected at his home
to forty two am right and then at two forty seven,
(22:56):
so five minutes later it's moving and then get turned
off and then it gets turned back on for forty
eight south of Moscow, Idaho on State Highway ninety five.
In between that, if I understand the timeline and what's
listed here, the cell phone is off, so it's not
(23:18):
talking to the towers at all. Interestingly, the car is
a Kia.
Speaker 2 (23:24):
Right it's a Hondi Alantra.
Speaker 3 (23:26):
A Hyundai Islandra. Okay, same company. Hyundai and Kia are
the same company. So I wonder if they took that
car part and looked for cell phone signals coming out
of that, because a lot of cars nowadays have cell
phones built into them and they're constantly communicating.
Speaker 2 (23:42):
Without knowing the specifics of Coburger's car, was it common
for cars to be emitting signals?
Speaker 3 (23:49):
A lot of cars in that timeframe, we're starting to
have cell phones built into them. One of the things
that happens in our world is that a lot of
devices are following us, and when those devices connect to things,
they get recorded. One of the things that has happened
in our world, and you'll notice this on Google Maps,
(24:11):
you'll notice this in other things that are used to
track us through space and time. Wi Fi signals have
been collected by Google as part of what they did
when they were mapping our world, and so you will
see when you are navigating your car and you turn
on Google Maps, it will say, if you want to
(24:33):
have a better navigation experience or something along those lines,
turn on Wi Fi. And the reason why it uses
that is now seeing Wi Fi connections that are from
homes that it passes by or businesses that it passes by,
and it adds that to the mix. Not only is
GPS very accurate, but it adds the Wi Fi signal
to the mix to track the vehicle or the phone
(24:57):
and display the map.
Speaker 2 (24:58):
If a phone quote stops reporting to the network, does
that mean for one hundred percent that the phone was
turned off? Or could there be another explanation.
Speaker 3 (25:09):
If a phone stops talking to the network, it could
be a host of things. It could be a distance
problem out in the forest, somewhere under a rock, or
inside a cave or something like that. However, for the
most part, my cell phone not communicating with a tower
is generally evidence that the cell phone is turned off
or an airplane mode.
Speaker 2 (25:30):
Here is my last two questions that I have. And
I took an Uber the other day and I was
at the back of a grocery store and my Uber
driver called me and he said, I need you to
come to the front of the store. That's where I'm
going to be. So and I opened my Uber and
I could see myself walking just from the front to
(25:52):
the back of one store. Why do we have that
level of specificity for an uber but not here.
Speaker 3 (26:00):
So a lot of apps, navigation apps uber lift use
GPS data, which is a much more accurate signal to
place you at a particular place. GPS is much more
accurate than these cell phone pings, much more accurate.
Speaker 2 (26:18):
Why is GPS much more accurate than cell phone pings?
Speaker 3 (26:21):
Cell phone pings will give you an area, this pie
shaped area where the cell phone is located. GPS data
can narrow that down to within feet. So a cell
phone sector is what they're technically called, a pie shaped
area could be many square miles. A GPS location is
(26:43):
going to generally be within feet.
Speaker 2 (26:45):
And I guess it is that GPS is that specific
because that's its intention. Whereas cell phone towers are intended
to what allow our phones to communicate, right, but not
to track us.
Speaker 3 (26:59):
So cell phone tower and they're broken up into sectors
so that the number of connections can be managed. GPS
data is more specific so that you can navigate. You
can be in a particular place and say I want
to go to this other place and it's going to
navigate you within generally within feet.
Speaker 2 (27:20):
Looking forward to trial, so the defense and prosecution, to
our knowledge, they have to the public knowledge. There is
the same data exists. How are two different experts going
to read the same information and from there draw different conclusions.
Speaker 3 (27:37):
Okay, so a little piece of this that you can
look at. One is ZX and the other is sell Hawk.
Those are two different products that both map where a
cell phone is. As far as this guy who's their
cell phone expert.
Speaker 2 (27:56):
Ci Ray is the founder of ZX Corporation.
Speaker 3 (28:00):
Yeah, and he's the guy who's going to testify, we
think yes.
Speaker 2 (28:04):
The defense has said he will testify to corroborate Coburger's
alibi and say that he was not at the residence
because he was too far south.
Speaker 3 (28:16):
We have two hours roughly between the cell phone being
connected in his home and the cell phone being connected
south of Moscow, Io. It's difficult for an expert to
say that the phone wasn't somewhere if it was off.
So we have two data points that are two hours apart.
(28:39):
It's difficult for any expert in either direction, prosecution or defense,
to prove or disprove where that cell phone is in
those two hours. How are you going to prove that
you can't prove a negative? You can't So they could say, yeah,
it's possible that between two forty seven and four forty
eight in the morning that he made it over to
(29:00):
this home and murdered people. But that's a lot of
time in between, a lot of time. I don't see
the defense and prosecution being very far apart of their
testimony because they are looking at the same data, and
the lack of data between two forty seven and four
to forty eight is just a lack of data going
to be difficult for either side to prove anything in
(29:21):
that timeframe.
Speaker 2 (29:23):
It's so obvious what you said, and I don't know
how it hadn't occurred. Of course, there's a dearth. There
is no information.
Speaker 3 (29:29):
A dearth is a perfect word to use. There's nothing,
there's nothing. So the timeline shows that there is no
data from the cell phone carrier between two forty seven
and four forty eight in the morning.
Speaker 2 (29:42):
How do you think the cell phone evidence will be
received by a jury or how do you feel cell
phone evidence in general is received by juries.
Speaker 3 (29:53):
As a person who presents cell phone evidence all the time,
younger juries are very receptive to sell phone evidence. They
use their phones all the time. They know that they're
a computer that carry around in their pocket or on
their head or in their purse. There certainly can be
older members of the jury that have a harder time
(30:14):
understanding that. Sometimes I run into older judges that have
a hard time understanding what that really means.
Speaker 2 (30:22):
Let's stop here for another break. We'll be back in
a moment. I continued my conversation with Kully Stimpson about
how he predicts the cell phone data and DNA evidence
will be presented at court, beginning with the process from
finding DNA at a crime scene, detying it to a
(30:45):
potential murder suspect, and how that ultimately is presented during trial.
Speaker 1 (30:53):
In some murder cases, the motive is dead clear, no
pun intended. He wanted her, she didn't want him. Packed
at him. We get that two drug dealers go at
each other over turf, one kills the other. We get
that these are harder cases because here's a dude who
lives in a different state. He had no prior relationship
(31:13):
that we know of with any one of these people.
The government doesn't have to prove motive. But everyone in
the courtroom's sitting there and I can tell you I
have been there. Why did he do this? And I
want to state to you right here and now I
don't have to prove motive. Motive is not an element
of any of these crimes. And so when my colleague
(31:33):
stands up on the defense and suggests, what's the motive,
that's an interesting question. But we're not here to resolve that.
We're here to resolve whether he committed this crime and
whether I've proven to under reasonable without each and every
element of the offense to which he's been charged. This
isn't the who done it, and I don't have to
prove to you why he done it.
Speaker 2 (31:54):
That's so interesting because you hear in so many cases motive, motive, motive, motive,
but that's.
Speaker 1 (32:01):
Not it's never an element. It's never an element. It's
the smoke cloud that's drifting around the courtroom in every
case like this, it's just hanging in the air. And
every time I was a defense counsel, it was motive, motive, motive.
They haven't proved motive. I don't know why they haven't
proved modi of this, because clearly there wasn't a motive,
and I'm playing the other game. You haven't heard one
(32:22):
ounce of evidence against my client about why you would
do something, why would have upstanding PhD candidate who has
everything in front of him do something like this. It's absurd,
and that's the kind of argument you're going to hear.
Speaker 2 (32:35):
But it's not material, it's.
Speaker 1 (32:36):
Not an element of the offense. Murders are driven by love, lust, power,
or money. Those are the big four. And then since
I'm a Shakespeare and I would add greed, because greed
is one of them as well. I watched the proceedings
in this for just a few minutes today in preparation
to chat with you, and it seemed like the prosecutor
(32:58):
is sort of a no nonsense older fella who's just
doing his job, and it seems like this public defender is,
you know, doing what she can with a really tough case.
And clearly at this point, Colberger still wants his trump.
I wouldn't be surprised if he changes his mind. I
would not be surprised if he changes his mind, because
I would suspect behind the scenes, this public defender is
going to the prosecuting Okay, what can we do here?
(33:21):
My guys willing to do this? You know, plead to
this if you're willing to cap confinement at this he
wants to be able to see, you know, sunshine before
he's dead. And if I was the government, depending on
the strength of the evidence, and I don't know the evidence,
nor to you, we only know what we've read, I
might say, yeah, I'm willing to discuss in theory a plea.
Of course, the families are going to have a say
(33:42):
in that, depending on what the state victim Bright statute says.
There's a lot of greens from the ball and the
cup here. You know, oftentimes you'd take your best shot
during pre trial motions when you're a defense counsel, and
depending on how they turn out, then you go back
to your client and go, look, you know, we're over
for five is looking real bad for you? More than
happy to defend you. You know, I'm a fighter. I
don't know what the state law allows for. But in
(34:03):
the federal system and in some states, you get a
break on sentencing if you plead guilty, and the opposite
is true if you go to trial the judge. One
of the factors is that you not getting punished for
going to trial, but you don't get a break for
pleading guilty. Oh interesting, Yeah, they can't increase the punishment
because you exercised your right to have a trial, but
(34:27):
if you plead guilty, they can give you a break
for pleading guilty and not expending court time.
Speaker 2 (34:35):
Right because I mean this case, if what I've read
just the other day is accurate, it's already up over
three million dollars.
Speaker 1 (34:43):
Which is a drop in the bucket for a big jurisdiction,
But for a little tiny jurisdiction like where they are,
they have never seen a case like this in the
history of that county. And so for a little county
like this that doesn't have a lot of crime to
have a big case like this with cell site location
information and DNA and all the rest, So with national attention,
they're going to go through some money. But you know,
justice shouldn't have a cost to it. The thing about
(35:06):
murder cases is somebody did it. Somebody did it, and
justice requires accountability in a murder case. And it's the
ultimate case because in a situation like this where they
were perfectly innocent, helpless young people with their whole lives
in front of them. But for victims who are children
(35:26):
and babies, these are the most sympathetic types of victims,
and so there is no reason for the government to
give the defendant an inch if they have a solid case.
Speaker 2 (35:39):
I mean, people have been collecting DNA for a long time,
so it would seem like unless you're really messing up
on the collection, then if your DNA is on the sheath,
guess what you're probably there? How does the defense counter this?
Speaker 1 (35:53):
There can be other innocent explanations for the presence of
a person's DNA at a crime scene other than the
fact that the perp And so you could I mean
I have asked myself, and I have seen in my
courtrooms when I was a judge or a prosecutor defense
counsel saying, well, okay, you're saying that the defendant's DNA
was found in this barracks room in the Navy. Yes
(36:15):
it was, And isn't the fact that the study groups
study in their rooms, Yes it is. So you can't
disprove that my client, the defendant, wasn't in the victim's
room as part of a study group, can you. Well, no,
I can't, not from a forensic standpoint. So you're trying
to create reasonable doubt, which is your job as a
defense counsel. And there are oftentimes innocent explanations for the
(36:35):
presence of someone's DNA at his crime scene. Now, are
there innocent explanations for the DNA of Brian Kohlberger found
on the knife sheath on the bloody bed sheets of
an apartment in a different state. I have a very, very,
very hard time wrapping my head around how you create
reasonable doubt to explain the presence of his DNA at
(36:58):
a murder scene in a difference state, in a kid's apartment.
So that's a big hurdle for the defense council. And
of course, so instead of attacking that, they're going after
the cell site location information and they're putting up an
alibi defense. If you have an alibi defense, you're required
to notify the government of your alibi within a certain
(37:20):
period of time before the trial and then give specifics
of what your alibi is because the government can then
try to go poke holes and find out if there's
any holes in your alibi defense. And we'll see how
the defense plays out. But it seems as if they've
created enough wiggle room in this loosey goosey alibi defense
that puts him driving around at random places at random
(37:42):
times in the middle of the night, in the general
location of the crime, but of course, I'm sure there
cell site location person is going to say, well, he
wasn't exactly at the place. But the problem is, this
guy had been to the crime scene multiple times according
to the cell site location information, and in all the
other times there he didn't turn his cell phone off,
and yet just coincidentally, on the night of the murder,
(38:05):
his cell phone turns off for a period of when
the murders were said to have happened, and then it
turns back on as he's heading back to his college.
It just doesn't look good for him. Oftentimes, in a
case where you have the defendant's DNA at the scene
of a crime, where there's no prior relationship between the
victim and the defendant and they're complete strangers, and it's
(38:27):
found in a very very inconvenient place for the defendant,
they end up pleating guilty. Because when you're the defense
counsel and you get that information and you understand what
it means, you finally have to come to Jesus talk
with your clients, say games up, you have a right
to a trial. Of course, I'll defend you, and I'll
give you a great defense. Notice I didn't ask you
(38:48):
whether you did it or not, so you can take
the stand say whatever you want. However, from my experience,
there is no reasonable explanation of why your DNA is
there except for the fact that you did it. I
don't think the government's going to have hard I'm proving
beyond a reasonable doubt that you did it, and most
defendants you know who are sit in that situation and
be like, okay, you know, and so they try to
get the best deal they can.
Speaker 2 (39:10):
I mean, it seems like they're going full bore.
Speaker 1 (39:13):
The problem is that, of course, go on the record,
this guy's presumed innocent, less proven guilty beyond a reasonable
doubt by illegal and competent evidence. He enjoys that presumption
of innocence through the entire trial. That said, the evidence
is overwhelming as we've seen it to the state for
guilt because not only do you have the police stopping
of the car and the cell site location information of
(39:35):
him what looks to be scouting out the crime scenes,
but you have people who were alive who he didn't kill,
who said a person looked like this and they picked
him out, and then you have his DNA, and then
you have the cell side location information on the night
of and you have him turning the cell phone off.
Any two of those pieces of evidence alone would get
(39:56):
you close to beyond a reasonable doubt. I think the
DNA alone gets them to beyond your reasonable doubt. But
when you have all the other circumstantial and direct evidence,
I see this case as what's called a slow plea.
A slow plea is he's just guilty. Everyone knows he's guilty,
but he has a constitutional right to demand his trial,
and he's going forward with the trial. And of course
(40:17):
he's presumed innocent. I'll say that again, But to me,
this looks like a slow plea and a guy who's
just not willing to accept the responsibility for his actions.
Maybe he'll be acquitted, I don't know, but it looks
like a slow plea to me. And so this will
be a battle. The experts on the cell site location
information that you know, the government will say he went
from one, two, three, four, five, and six he turned
it off between here, and that puts him at the
(40:39):
house on around the time of the murder. And the
defense will come up and say, yeah, we can't dispute
that he was there, but that could mean he was
way over here in this bubble. If I was the government,
I'd say, Okay, all right, let's just let's just let's
just pretend that everything the defense experts said is true,
and let's just throw out the cell side location information.
Here's all the other evidence that points out that he's
guilty beyond your in fact, let's take four other pieces off,
(41:03):
he's still guilty. Let's take nine pieces of itdence off.
He's still guilty. So I wouldn't play into it. I'd
fight it hard, and then I would just talk about
is that reasonable, because that's not reasonable.
Speaker 2 (41:18):
More on that next time. For more information on the
case and relevant photos, follow us on Instagram at KAT
Underscore Studios. The Idaho Masker is produced by Stephanie Leideger,
Gabriel Castillo and me Courtney Armstrong. Editing and sound design
by Jeff Trois, Music by Jared Aston. The Idaho Masker
(41:40):
is a production of KAT Studios and iHeartRadio. For more
podcasts like this, visit the iHeartRadio app, Apple Podcasts, or
wherever you listen to your favorite shows. Scott Green can
be found at Evidence Solutions, Inc. Headquartered in Tucson, Arizona,
with experts across the country. That's evidencesolutions dot com.
How the hell did his DNA end up on that
sheath at that murder scene if it wasn't his sheath.
Speaker 2 (00:11):
All we hear about are the pings, the pings Brian Coberger,
the alleged was pinging everywhere.
Speaker 3 (00:18):
It's a bad idea to have your cell phone with
you when you commit a correct This isn't a who
done it, and I don't have to prove to you
why he done it.
Speaker 2 (00:33):
This is the Idaho Massacre, a production of KAT Studios
and iHeartRadio, Season two, episode six, Pings and DNA Admissibility.
I'm Courtney Armstrong, a producer at KAT Studios with Stephanie
Leidecker and Gabe Castillo. At the center of the prosecution's
(00:55):
case against Ques murderer Brian Coberger, our records tied to
his cell phone and DNA that allegedly places him at
the scene of the crime. The defense has called foul
on both areas of evidence.
Speaker 4 (01:13):
Investigators now say they harvested DNA from an empty leather
knife sheath. Police say that DNA match DNA from Coburger's father,
which they collected from trash outside the family's Pennsylvania home.
Speaker 1 (01:26):
Does the government now have genealogy and follow that previously
was controlled by individuals and private organizations. And how accurate
is this database.
Speaker 5 (01:34):
The genealogy sites that allows police to search public records
of people who have opted in saying, Hey, if there's
a murderer or a rapist in my family, I don't
mind if you use my DNA to try to find them.
Speaker 2 (01:51):
Here's Stephanie.
Speaker 6 (01:52):
We have to remember DNA is a big ticket item
for the prosecution. And just as a quick refresh, we
know that quote a hit of Brian Coburger's DNA was
found on a knife sheath left behind at the crime scene,
and we also know that investigators connected that through familial DNA.
Brian Coburger's parents' house was under surveillance in the days
(02:14):
leading up to his arrest. His dad, we have to assume,
tosses his trash in the garbage cans outside their home
and then investigators retrieve it and from that trash they're
able to identify Dad's DNA and put that into a database.
In boom, there's a familial match. Now. Look, this has
been highly debated as some say that the search and
(02:35):
seizure of Coburger's family trash is questionable.
Speaker 2 (02:41):
In the course of researching this season, the team at
Katie Studios came across an article called how DNA and
cell phone evidence in Idaho murders complied with the Fourth Amendment.
To get clarity on this pivotal information, I reached out
to the article's author, Collie Stimpson, who has singular expertise
in areas.
Speaker 1 (03:02):
Hi Courtney, It's Hully Stimpson from the Heritage Foundation.
Speaker 2 (03:05):
Cully, how are you. I'm great, excellent, and your article
was it seemed just so on point with so many
pertinent matters. I guess just to start, would you just
let listeners know your name and your background.
Speaker 1 (03:20):
Sure. My name is Hully Stimpson. I'm a Senior Legal
Fellow and manager of the National Security Law Program at
the Heritage Foundation. Prior to that, I served in the
Navy jag Corps, which is the lawyer corps the Navy,
and served as a prosecutor defense lawyer. When I was
a prosecutor in the Navy, I tried a bunch of
violent crimes, including a case that involved DNA. Was one
of the few cases that the Navy had used DNA
(03:41):
in early on. This is the ninety two, three, four
five period of time and I worked as a homicide
prosecutor in Maryland and I tried the first PCR case.
Speaker 2 (03:52):
What's PCR?
Speaker 1 (03:54):
So it's a type of testing of genetic material. So
when you used to have blood testing, you're either AB
or O and those are broad categories of blood type.
Then when we started using genetics, you had to have
a large amount of genetic material stuff left at a
(04:16):
crime scene. But because the laws always behind technology lags
way behind it, the genetic labs were now using the
next level, the next more sophisticated level, which required much
less material called PCR polychromis reaction. By the way, when
I was a Maryland I'm side prosecutor, I was the
head of attorney training in the office, which included training
(04:37):
on how to use DNA in cases. And when I
was an instructor of the Naval Justice School for five years,
I taught the whole JAG Corps how to use forensic DNA.
And of course now we're so confident that we have
twenty three and meters or did ancestry, dot com and
all the rest of it, and so tens of millions
of people rely on that genetic material to find close
(04:57):
and distant relatives. All around the world.
Speaker 2 (05:00):
You've been with DNA since the very very beginning.
Speaker 1 (05:03):
Well, I'm actually made of DNA like you, So yeah,
I think from the very beginning. But I've had the
opportunity to work with it, and as a defense attorney,
I fought against it like any good defense attorney and
tried to poke holes not into scientific reliability, because I
think that's a losing battle, but in whether it was
collected correctly, whether testing procedures were done correctly, whether there's
(05:24):
an adulterated sample. That's really where the game is. As
a defense council.
Speaker 2 (05:31):
I asked Kully how he thinks DNA and its collection
will play out in this case during trial, as well
as his general thoughts on the accused.
Speaker 1 (05:39):
I mean, it's interesting, look what he's studying. He's getting
his PhD in criminal justice. I don't know what he's read,
and I don't know what his course requirements are. If
I was the prosecutor, I'd be pulling every book he
ever had to read, in every syllabus to find out
and look for things about alibi and forensic evidence. And
I would want to get into the guy's head by
seeing what he is doing. Sudied in what he's writing.
(06:01):
But I don't think that, for example, the questions about
the way the evidence was collected at his parents' house
back in Pennsylvania is an issue at all. I mean,
once you discard something, it's not yours anymore, you've abandoned it.
And as a Fourth Amendment principle, you've abandoned any Fourth
Amendment standing to complain that you know, somebody picked up
my cigarette, but that they tossed on the ground, somebody
rifled through the trash out in front of my house,
(06:22):
Well you gave it up, so you don't have a
right to complain. And it's his parents' house, so he
doesn't even live there anymore. He's an emancipated man, so
he doesn't have a standing to complain about his parents
throwing stuff away in their house, So he has a
double negative there. He had no standing if he threw
it away to himself, and he certainly doesn't mean standing
if his parents threw it away.
Speaker 2 (06:40):
Can I have you slow that down for one second?
So what prompted you to write this article? You know
about how the evidence complies with the Fourth Amendment? And
what is the Fourth Amendment?
Speaker 1 (06:52):
The Fourth Amendment is part of the original Bill of
Rights which were passed, you know, a few years after
the Constitution was signed and ratified by the States, and
it essentially, in so far as this is related, says
that the government may not engage in unreasonable searches and
seizures of your person's places or things or papers. Right
(07:17):
and so for the government to get into your stuff,
to see your stuff, typically they at the very least
have to have probable cause to believe that you are
the person who committed a crime. And that if they
look into your stuff by getting a warrant that's very
specific as to location and what they're looking for, signed
by a judge, a neutral, detached magistrate, the government can
(07:37):
then look into your gut, into your house, look in
the drawer, look in the closet for the knife, the gun,
the rope, whatever you used for a crime. I was
very interested in the development of Fourth Amendment law through
the Supreme Court because there was a case that the
Court had recently come down with called Carpenter against the
(07:59):
United States in a throwaway line that Justice Gorsuch said,
where he I think made a mistake suggesting that people
would have a Fourth Amendment right to genetic material that
is on third party genetics hosting sites. If I spit
into a vial and give it to ancestry dot com
(08:20):
and I have a contract with them to do so,
I pay them a fee, they send me and only
me my results back. If I then want to keep
it private, that's it. No one gets to see what
the results are. But if I want to take the
extraordinary step of then providing that material, those test results
to a third party genetics website, it's like put it
in the trash can. It's like hanging it outside my
(08:41):
front porch for everyone to see, because you sign a
contract that says this is out there for the world
to see. Because I want the world to see who
I'm related to, so they can see that they're related
to me. And so when this case came along, I
was reading the articles about it, and I thought, they're
clearly clueless about this because they were suggesting, oh, oh,
it's a violation of his Fourth Amendment right because they
(09:02):
went through the trash Oh it's a violation of this.
So I was like, Ooha, slowly down, everybody. And the
Coolberger case is poking along now and it's getting closer
to trial time and more and more people are sort
of interested in the mechanics of the trial. But I
suspect the closer we get to trial, people will be
more interested in the DNA and the difference between the
snip DNA genetics testing piece which they did for the
(09:26):
trash and then the regular forensic testing for admissibility into court.
And so you know, the closer we get to trial
and the more that gets litigated, I'm sure people want
to know in English what all that means?
Speaker 2 (09:40):
Yeah, and is there a way to break those things down?
Speaker 1 (09:44):
There's two types of forensic tests. What forensic means is
used for criminal court, So just just sort of file
that away anytime you hear forensic and then a word
after it means for criminal trial. So forensic DNA profiles
typically you find genetic material at a crime scene, you
don't know who did it, You post it into the
(10:06):
FBI's DNA database looking for a hit, and in best
case scenario, somebody's already provided their DNA because they're law
enforcement or military or their prior criminal and they've taken
their DNA. You get a hit and then you test
you know the chances of it being somebody else's DNA
and then you come up with a result. Here, when
(10:27):
they found the sheath that held the knife that the
subject used to slay the poor college kids, they tested
the sheath and they found genetic material that probably means
epithelial cells. Cells that are found, believe it or not,
in the sweat that comes off your fingertip. Okay, so
(10:47):
everywhere everything you're touching, you're leaving a little part of
your DNA on it. I mean you can't even see it, right.
So whoever the dude or dude that is that killed
these people left the sheath there. They test the sheath,
and they were smart because instead of just using one
test and hoping that they'd get a random hit through
the FBI DNA database called Cotis CODIS, they also had
(11:12):
a brain. Because CODIS only tests and I don't want
to use scientific jargon, but let's just say five or
six or seven, just a handful of what are called
genetic markers. So you've seen the quarkscrew DNA nucleotide. The
thing looks like a winding staircase.
Speaker 2 (11:29):
Back in seventh grade, right, and.
Speaker 1 (11:31):
So imagine that as that quarkscrew is going down and
down and down there's stairs. It tests six or seven
or eight stairs at different points in the DNA quarkscrew
SNIPS is different. SNIPS are. It's an acronym stands for
single nucleotide polymorphism. And so imagine what they're doing there
(11:55):
is they're looking at thirty or forty or fifty of
those stairs, and that's just to see what variations there
are in sequences on somebody else's double helix, to see
if there's a relationship between the person who left the
DNA and somebody else. It's not used forensically in court.
It's just think of it as the ancestry dot com
(12:17):
part of genetic testing. And so they tested, in my opinion,
it hasn't been made public yet. They clearly tested the
standard forensic testing, the standard DNA testing, probably PCR, and
then they did SNIP testing, most likely because when they
connected the dots between his cell phone and his parents'
location and he was registered at his parents' house, et cetera,
(12:41):
and they went to the trash and got the parents
trash and tested some of the trash. Colberg had been
visiting his mommy and daddy, and sure enough, on the
trash they find through SNIP technology, a person who was
ninety nine point nine percent think of it as chance
of being his dad. So in other words, it's his dad.
(13:01):
It's the dad of the person who left the genetic
material on the sheath. So if you remember I Love
Lucy when Ricky Ricardo said Lucy, you got some splaining
to do. Colberger doesn't have to do any explaining because
he's a defendant. He has a right to remain silent.
But it looks really bad for him because how the
hell did his DNA end up on that sheath in
(13:23):
that bedroom at that murder scene. If it wasn't his sheath,
and if it was his sheath, why was it there?
And he doesn't have to say anything. He can stand
on his right to remain silent, and that remains his
right throughout the trial.
Speaker 2 (13:37):
Just going back to what you said, how you did
training in the prosecutor's office and then also in JAG
was a lot of acceptance of DNA as something reliable.
Was it just teaching that the presentation and helping people
understand it on a really basic level so it didn't
seem like magic, and so people could understand.
Speaker 1 (13:59):
Well, it's a complicated question with a somewhat easy answer.
You don't have to become a genetics expert as a
prosecutor or defense counsel or judge to use DNA as
a forensic matter in a criminal trial. But what you
have to do to be good at either using it
for or against your case is to understand collection protocols,
(14:22):
testing procedures, and protocols areas where samples can get mixed
up with other samples. And so, just like with any
other forensic techniques that are used, you have to get
good at understanding the basics of the science and then
get really good at understanding how you get from A
to Z, getting into court, and then either defending its
(14:45):
use or poking holes at its reliability. That's where the
line's share of the work is done these days.
Speaker 2 (14:54):
Let's stop here for a break. We'll be back in
a moment. After getting a better understanding of the DNA
in this case, we decided to dig a little deeper
into the technology of the cell towers. Here's Stephanie.
Speaker 6 (15:16):
There has been so much back and forth over the
phone pings, because again, this is going to be a
big ticket item. It sounds like for sure the accused
Brian Coburger was out and about a whole lot that
fateful morning both before and after the murders. Investigators claim
that they have phone pings that place Coburger near the
house the morning of the murders, and Coburger's defense team
(15:39):
is arguing that he was nowhere near the house when
the murders happened. What is so interesting here is that
the same data that the prosecution is going to use
to place Coburger at the scene is the exact same
data that the defense is going to use to dispute them.
Speaker 2 (15:56):
I reached out to Scott Green, founder of Great Scott Enterprises.
For nearly forty years, he's been collecting, analyzing, and helping
to explain complex electronic evidence.
Speaker 3 (16:09):
I collect the data, I analyze the data, I make
sense of the data, and then I present the data
in court, either to a jury or to the judge.
Speaker 2 (16:20):
What we wanted to speak with you about is the
cell phone data. And all we hear about are the pings.
The pings. Brian Colberg, the alleged was pinging everywhere. Can
you please explain what are cell phone pings or signals?
And how specific are they?
Speaker 3 (16:40):
So a ping in the way it's been used in
the media. And I read the articles with regards to
cell phones and towers, is a connection between a cell
phone and a tower. Those connections fall into three different categories. Generally,
they are a phone call that would ping off a
tower connect to a tower, and they're referred to as pings.
(17:02):
So they occur when somebody makes a phone call, they
occur when somebody uses data, and they occur when somebody
sends a standard SMS or text message. As far as
how specific a ping is, the tower knows the direction
that the cell phone is from the tower. So what
you get out of the ping and out of the
(17:23):
cell phone carrier is a direction from the tower, generally
in a pie shaped area that shows the direction from
the tower that the cell phone is. And when you
have them moving through space and time, you can get
an idea as to where the cell phone is going
and how fast it's moving and some things like that.
(17:44):
You get some estimates out of that, but you don't
get an exact position out of the cell phone carrier information.
Speaker 2 (17:53):
What I understood, as you described it, was that the
pings happen when something active is occurring a call, a text,
or using data. These pings also happen passively. I have
my phone here right now? Is this pinging?
Speaker 3 (18:07):
Cell Phones and towers are communicating most of the time,
usually because there's data transactions between a cell phone and
a tower. That could be updates. It could be email
getting updated, or inbound or outbound data of some sort.
Speaker 2 (18:21):
Understood. So in this case, the accused coburger wouldn't have
had to have been actively on his phone to ping.
It could be something in the background. Is that correct?
Speaker 3 (18:31):
It could be something in the background that is generating
those pings.
Speaker 5 (18:36):
True.
Speaker 2 (18:36):
I know you said direction and potential trajectory. And does
the radius depend upon how far apart the towers are.
So basically, could they spot me in my car within
a two block radius or is it a two mile radius?
Speaker 3 (18:52):
Ah, So that's a great question. In the country outside
of cities, in rural areas, the cell phone transmit a
much longer distance than they do inside the cities. So
it depends where you are as far as how far
a cell tower will transmit.
Speaker 2 (19:11):
In Moscow, Idaho, it's not in the country. It's certainly
it is in no way in a big city. But
there's two colleges right nearby, because I would imagine colleges
would need more power.
Speaker 3 (19:24):
So here's an interesting thing. I drove past the University
of Arizona yesterday and one of the things that I
noticed is that there are a tremendous number of five
G towers around a university. In the country where the
accused was driving, there's probably a lot fewer. What's the
distance between those two locations. Somebody said ten.
Speaker 2 (19:46):
Minutes, ten miles, about ten miles, So.
Speaker 3 (19:49):
In the country, you're going to find that cell phone
towers can be miles apart and cover miles in both directions.
From a cell phone tower, they vary in direction based
up on geography and where people are and how the
cell phone carrier wants to cover the area.
Speaker 2 (20:07):
This isn't specifically a technical question, so we can skip
over it if you want. But the accused is a
criminology PhD student. Is it surprising to you that, if
what's alleged is true, that he had his phone on
him the whole time? I mean, even I know that
my phone will leave a footprint.
Speaker 3 (20:26):
It is surprising to me that someone with that background
would have their phone with them. Agree. I would think
somebody who has some intelligence about criminal backgrounds and criminology
would probably at that level at least know that it's
a bad idea to have your cell phone with you
when you commit a current.
Speaker 2 (20:46):
Yeah, it's just so incongruous. As a PhD candidate, Coburger
was also a teacher's assistant at Pullman Washington State University,
and we spoke with one of his students, and she's
not wrong. That's one of the things that gives her
pause on the alleged guilt is it's one oh one
(21:08):
to not do that. How frequently do pings update? Is
it a standard amount of time? Does it depend situationally?
Speaker 3 (21:15):
Wow, it depends. Pings get updated differently based upon which
one of those three items is going on. You're going
to see every time there is a text message set,
you can see a connection to a tower. And every
time a cell phone call is initiated, or the cell
(21:36):
phone changes towers, or the call ends one of those
three things. When it's a phone call, you'll see a
different tower recorded by the cell phone carrier. Does that
make sense?
Speaker 2 (21:47):
It does make sense. As a real example, here a
white sedan that the prosecution alleges is Coburger's. It was
seen passing by the victim's residence at three twenty nine
that same what via goal at four oh four and
at four twenty is seen leaving the area at high speed.
Can officials attempt to corroborate we see the car and
(22:12):
then go and check the tower to see if that
lines up?
Speaker 3 (22:17):
So are you asking me if the law enforcement at
the time, can go do that or look back in history?
Speaker 2 (22:24):
Go back in history. As a layman, I would want
to think, oh, can I corroborate that? With cell tower information?
Speaker 3 (22:31):
You can corroborate the location of the cell phone if
it was in the car, they would be able to say, Okay,
it's in the car and it's moving, or it's in
the car and stationery if the cell phone is on
and communicating with the tower. Because in this case, we
see that the cell phone is connected at his home
to forty two am right and then at two forty seven,
(22:56):
so five minutes later it's moving and then get turned
off and then it gets turned back on for forty
eight south of Moscow, Idaho on State Highway ninety five.
In between that, if I understand the timeline and what's
listed here, the cell phone is off, so it's not
(23:18):
talking to the towers at all. Interestingly, the car is
a Kia.
Speaker 2 (23:24):
Right it's a Hondi Alantra.
Speaker 3 (23:26):
A Hyundai Islandra. Okay, same company. Hyundai and Kia are
the same company. So I wonder if they took that
car part and looked for cell phone signals coming out
of that, because a lot of cars nowadays have cell
phones built into them and they're constantly communicating.
Speaker 2 (23:42):
Without knowing the specifics of Coburger's car, was it common
for cars to be emitting signals?
Speaker 3 (23:49):
A lot of cars in that timeframe, we're starting to
have cell phones built into them. One of the things
that happens in our world is that a lot of
devices are following us, and when those devices connect to things,
they get recorded. One of the things that has happened
in our world, and you'll notice this on Google Maps,
(24:11):
you'll notice this in other things that are used to
track us through space and time. Wi Fi signals have
been collected by Google as part of what they did
when they were mapping our world, and so you will
see when you are navigating your car and you turn
on Google Maps, it will say, if you want to
(24:33):
have a better navigation experience or something along those lines,
turn on Wi Fi. And the reason why it uses
that is now seeing Wi Fi connections that are from
homes that it passes by or businesses that it passes by,
and it adds that to the mix. Not only is
GPS very accurate, but it adds the Wi Fi signal
to the mix to track the vehicle or the phone
(24:57):
and display the map.
Speaker 2 (24:58):
If a phone quote stops reporting to the network, does
that mean for one hundred percent that the phone was
turned off? Or could there be another explanation.
Speaker 3 (25:09):
If a phone stops talking to the network, it could
be a host of things. It could be a distance
problem out in the forest, somewhere under a rock, or
inside a cave or something like that. However, for the
most part, my cell phone not communicating with a tower
is generally evidence that the cell phone is turned off
or an airplane mode.
Speaker 2 (25:30):
Here is my last two questions that I have. And
I took an Uber the other day and I was
at the back of a grocery store and my Uber
driver called me and he said, I need you to
come to the front of the store. That's where I'm
going to be. So and I opened my Uber and
I could see myself walking just from the front to
(25:52):
the back of one store. Why do we have that
level of specificity for an uber but not here.
Speaker 3 (26:00):
So a lot of apps, navigation apps uber lift use
GPS data, which is a much more accurate signal to
place you at a particular place. GPS is much more
accurate than these cell phone pings, much more accurate.
Speaker 2 (26:18):
Why is GPS much more accurate than cell phone pings?
Speaker 3 (26:21):
Cell phone pings will give you an area, this pie
shaped area where the cell phone is located. GPS data
can narrow that down to within feet. So a cell
phone sector is what they're technically called, a pie shaped
area could be many square miles. A GPS location is
(26:43):
going to generally be within feet.
Speaker 2 (26:45):
And I guess it is that GPS is that specific
because that's its intention. Whereas cell phone towers are intended
to what allow our phones to communicate, right, but not
to track us.
Speaker 3 (26:59):
So cell phone tower and they're broken up into sectors
so that the number of connections can be managed. GPS
data is more specific so that you can navigate. You
can be in a particular place and say I want
to go to this other place and it's going to
navigate you within generally within feet.
Speaker 2 (27:20):
Looking forward to trial, so the defense and prosecution, to
our knowledge, they have to the public knowledge. There is
the same data exists. How are two different experts going
to read the same information and from there draw different conclusions.
Speaker 3 (27:37):
Okay, so a little piece of this that you can
look at. One is ZX and the other is sell Hawk.
Those are two different products that both map where a
cell phone is. As far as this guy who's their
cell phone expert.
Speaker 2 (27:56):
Ci Ray is the founder of ZX Corporation.
Speaker 3 (28:00):
Yeah, and he's the guy who's going to testify, we
think yes.
Speaker 2 (28:04):
The defense has said he will testify to corroborate Coburger's
alibi and say that he was not at the residence
because he was too far south.
Speaker 3 (28:16):
We have two hours roughly between the cell phone being
connected in his home and the cell phone being connected
south of Moscow, Io. It's difficult for an expert to
say that the phone wasn't somewhere if it was off.
So we have two data points that are two hours apart.
(28:39):
It's difficult for any expert in either direction, prosecution or defense,
to prove or disprove where that cell phone is in
those two hours. How are you going to prove that
you can't prove a negative? You can't So they could say, yeah,
it's possible that between two forty seven and four forty
eight in the morning that he made it over to
(29:00):
this home and murdered people. But that's a lot of
time in between, a lot of time. I don't see
the defense and prosecution being very far apart of their
testimony because they are looking at the same data, and
the lack of data between two forty seven and four
to forty eight is just a lack of data going
to be difficult for either side to prove anything in
(29:21):
that timeframe.
Speaker 2 (29:23):
It's so obvious what you said, and I don't know
how it hadn't occurred. Of course, there's a dearth. There
is no information.
Speaker 3 (29:29):
A dearth is a perfect word to use. There's nothing,
there's nothing. So the timeline shows that there is no
data from the cell phone carrier between two forty seven
and four forty eight in the morning.
Speaker 2 (29:42):
How do you think the cell phone evidence will be
received by a jury or how do you feel cell
phone evidence in general is received by juries.
Speaker 3 (29:53):
As a person who presents cell phone evidence all the time,
younger juries are very receptive to sell phone evidence. They
use their phones all the time. They know that they're
a computer that carry around in their pocket or on
their head or in their purse. There certainly can be
older members of the jury that have a harder time
(30:14):
understanding that. Sometimes I run into older judges that have
a hard time understanding what that really means.
Speaker 2 (30:22):
Let's stop here for another break. We'll be back in
a moment. I continued my conversation with Kully Stimpson about
how he predicts the cell phone data and DNA evidence
will be presented at court, beginning with the process from
finding DNA at a crime scene, detying it to a
(30:45):
potential murder suspect, and how that ultimately is presented during trial.
Speaker 1 (30:53):
In some murder cases, the motive is dead clear, no
pun intended. He wanted her, she didn't want him. Packed
at him. We get that two drug dealers go at
each other over turf, one kills the other. We get
that these are harder cases because here's a dude who
lives in a different state. He had no prior relationship
(31:13):
that we know of with any one of these people.
The government doesn't have to prove motive. But everyone in
the courtroom's sitting there and I can tell you I
have been there. Why did he do this? And I
want to state to you right here and now I
don't have to prove motive. Motive is not an element
of any of these crimes. And so when my colleague
(31:33):
stands up on the defense and suggests, what's the motive,
that's an interesting question. But we're not here to resolve that.
We're here to resolve whether he committed this crime and
whether I've proven to under reasonable without each and every
element of the offense to which he's been charged. This
isn't the who done it, and I don't have to
prove to you why he done it.
Speaker 2 (31:54):
That's so interesting because you hear in so many cases motive, motive, motive, motive,
but that's.
Speaker 1 (32:01):
Not it's never an element. It's never an element. It's
the smoke cloud that's drifting around the courtroom in every
case like this, it's just hanging in the air. And
every time I was a defense counsel, it was motive, motive, motive.
They haven't proved motive. I don't know why they haven't
proved modi of this, because clearly there wasn't a motive,
and I'm playing the other game. You haven't heard one
(32:22):
ounce of evidence against my client about why you would
do something, why would have upstanding PhD candidate who has
everything in front of him do something like this. It's absurd,
and that's the kind of argument you're going to hear.
Speaker 2 (32:35):
But it's not material, it's.
Speaker 1 (32:36):
Not an element of the offense. Murders are driven by love, lust, power,
or money. Those are the big four. And then since
I'm a Shakespeare and I would add greed, because greed
is one of them as well. I watched the proceedings
in this for just a few minutes today in preparation
to chat with you, and it seemed like the prosecutor
(32:58):
is sort of a no nonsense older fella who's just
doing his job, and it seems like this public defender is,
you know, doing what she can with a really tough case.
And clearly at this point, Colberger still wants his trump.
I wouldn't be surprised if he changes his mind. I
would not be surprised if he changes his mind, because
I would suspect behind the scenes, this public defender is
going to the prosecuting Okay, what can we do here?
(33:21):
My guys willing to do this? You know, plead to
this if you're willing to cap confinement at this he
wants to be able to see, you know, sunshine before
he's dead. And if I was the government, depending on
the strength of the evidence, and I don't know the evidence,
nor to you, we only know what we've read, I
might say, yeah, I'm willing to discuss in theory a plea.
Of course, the families are going to have a say
(33:42):
in that, depending on what the state victim Bright statute says.
There's a lot of greens from the ball and the
cup here. You know, oftentimes you'd take your best shot
during pre trial motions when you're a defense counsel, and
depending on how they turn out, then you go back
to your client and go, look, you know, we're over
for five is looking real bad for you? More than
happy to defend you. You know, I'm a fighter. I
don't know what the state law allows for. But in
(34:03):
the federal system and in some states, you get a
break on sentencing if you plead guilty, and the opposite
is true if you go to trial the judge. One
of the factors is that you not getting punished for
going to trial, but you don't get a break for
pleading guilty. Oh interesting, Yeah, they can't increase the punishment
because you exercised your right to have a trial, but
(34:27):
if you plead guilty, they can give you a break
for pleading guilty and not expending court time.
Speaker 2 (34:35):
Right because I mean this case, if what I've read
just the other day is accurate, it's already up over
three million dollars.
Speaker 1 (34:43):
Which is a drop in the bucket for a big jurisdiction,
But for a little tiny jurisdiction like where they are,
they have never seen a case like this in the
history of that county. And so for a little county
like this that doesn't have a lot of crime to
have a big case like this with cell site location
information and DNA and all the rest, So with national attention,
they're going to go through some money. But you know,
justice shouldn't have a cost to it. The thing about
(35:06):
murder cases is somebody did it. Somebody did it, and
justice requires accountability in a murder case. And it's the
ultimate case because in a situation like this where they
were perfectly innocent, helpless young people with their whole lives
in front of them. But for victims who are children
(35:26):
and babies, these are the most sympathetic types of victims,
and so there is no reason for the government to
give the defendant an inch if they have a solid case.
Speaker 2 (35:39):
I mean, people have been collecting DNA for a long time,
so it would seem like unless you're really messing up
on the collection, then if your DNA is on the sheath,
guess what you're probably there? How does the defense counter this?
Speaker 1 (35:53):
There can be other innocent explanations for the presence of
a person's DNA at a crime scene other than the
fact that the perp And so you could I mean
I have asked myself, and I have seen in my
courtrooms when I was a judge or a prosecutor defense
counsel saying, well, okay, you're saying that the defendant's DNA
was found in this barracks room in the Navy. Yes
(36:15):
it was, And isn't the fact that the study groups
study in their rooms, Yes it is. So you can't
disprove that my client, the defendant, wasn't in the victim's
room as part of a study group, can you. Well, no,
I can't, not from a forensic standpoint. So you're trying
to create reasonable doubt, which is your job as a
defense counsel. And there are oftentimes innocent explanations for the
(36:35):
presence of someone's DNA at his crime scene. Now, are
there innocent explanations for the DNA of Brian Kohlberger found
on the knife sheath on the bloody bed sheets of
an apartment in a different state. I have a very, very,
very hard time wrapping my head around how you create
reasonable doubt to explain the presence of his DNA at
(36:58):
a murder scene in a difference state, in a kid's apartment.
So that's a big hurdle for the defense council. And
of course, so instead of attacking that, they're going after
the cell site location information and they're putting up an
alibi defense. If you have an alibi defense, you're required
to notify the government of your alibi within a certain
(37:20):
period of time before the trial and then give specifics
of what your alibi is because the government can then
try to go poke holes and find out if there's
any holes in your alibi defense. And we'll see how
the defense plays out. But it seems as if they've
created enough wiggle room in this loosey goosey alibi defense
that puts him driving around at random places at random
(37:42):
times in the middle of the night, in the general
location of the crime, but of course, I'm sure there
cell site location person is going to say, well, he
wasn't exactly at the place. But the problem is, this
guy had been to the crime scene multiple times according
to the cell site location information, and in all the
other times there he didn't turn his cell phone off,
and yet just coincidentally, on the night of the murder,
(38:05):
his cell phone turns off for a period of when
the murders were said to have happened, and then it
turns back on as he's heading back to his college.
It just doesn't look good for him. Oftentimes, in a
case where you have the defendant's DNA at the scene
of a crime, where there's no prior relationship between the
victim and the defendant and they're complete strangers, and it's
(38:27):
found in a very very inconvenient place for the defendant,
they end up pleating guilty. Because when you're the defense
counsel and you get that information and you understand what
it means, you finally have to come to Jesus talk
with your clients, say games up, you have a right
to a trial. Of course, I'll defend you, and I'll
give you a great defense. Notice I didn't ask you
(38:48):
whether you did it or not, so you can take
the stand say whatever you want. However, from my experience,
there is no reasonable explanation of why your DNA is
there except for the fact that you did it. I
don't think the government's going to have hard I'm proving
beyond a reasonable doubt that you did it, and most
defendants you know who are sit in that situation and
be like, okay, you know, and so they try to
get the best deal they can.
Speaker 2 (39:10):
I mean, it seems like they're going full bore.
Speaker 1 (39:13):
The problem is that, of course, go on the record,
this guy's presumed innocent, less proven guilty beyond a reasonable
doubt by illegal and competent evidence. He enjoys that presumption
of innocence through the entire trial. That said, the evidence
is overwhelming as we've seen it to the state for
guilt because not only do you have the police stopping
of the car and the cell site location information of
(39:35):
him what looks to be scouting out the crime scenes,
but you have people who were alive who he didn't kill,
who said a person looked like this and they picked
him out, and then you have his DNA, and then
you have the cell side location information on the night
of and you have him turning the cell phone off.
Any two of those pieces of evidence alone would get
(39:56):
you close to beyond a reasonable doubt. I think the
DNA alone gets them to beyond your reasonable doubt. But
when you have all the other circumstantial and direct evidence,
I see this case as what's called a slow plea.
A slow plea is he's just guilty. Everyone knows he's guilty,
but he has a constitutional right to demand his trial,
and he's going forward with the trial. And of course
(40:17):
he's presumed innocent. I'll say that again, But to me,
this looks like a slow plea and a guy who's
just not willing to accept the responsibility for his actions.
Maybe he'll be acquitted, I don't know, but it looks
like a slow plea to me. And so this will
be a battle. The experts on the cell site location
information that you know, the government will say he went
from one, two, three, four, five, and six he turned
it off between here, and that puts him at the
(40:39):
house on around the time of the murder. And the
defense will come up and say, yeah, we can't dispute
that he was there, but that could mean he was
way over here in this bubble. If I was the government,
I'd say, Okay, all right, let's just let's just let's
just pretend that everything the defense experts said is true,
and let's just throw out the cell side location information.
Here's all the other evidence that points out that he's
guilty beyond your in fact, let's take four other pieces off,
(41:03):
he's still guilty. Let's take nine pieces of itdence off.
He's still guilty. So I wouldn't play into it. I'd
fight it hard, and then I would just talk about
is that reasonable, because that's not reasonable.
Speaker 2 (41:18):
More on that next time. For more information on the
case and relevant photos, follow us on Instagram at KAT
Underscore Studios. The Idaho Masker is produced by Stephanie Leideger,
Gabriel Castillo and me Courtney Armstrong. Editing and sound design
by Jeff Trois, Music by Jared Aston. The Idaho Masker
(41:40):
is a production of KAT Studios and iHeartRadio. For more
podcasts like this, visit the iHeartRadio app, Apple Podcasts, or
wherever you listen to your favorite shows. Scott Green can
be found at Evidence Solutions, Inc. Headquartered in Tucson, Arizona,
with experts across the country. That's evidencesolutions dot com.
Hosts And Creators
Stephanie Lydecker
Courtney Armstrong
Jeff Shane
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