Court Summaries: October 30 – December 15, 2023. The parties discuss the IGG information.
The "two SNP profiles" are not actually two separate SNP profiles.
I apologize for the long delay in getting these summaries out. I had a few conflicts, but things should move smoothly from this point forward. I should be up-to-date by the end of this week.
The court documents will be presented out of chronological order; the documents for which I provide the longest summaries will be explained first with the simpler documents linked at the end.
Orders Denying Motions to Dismiss the Indictment
On August 23, 2023, the defense filed a motion to dismiss the indictment on the grounds of a biased grand jury, inadmissible evidence, lack of sufficient evidence, and prosecutorial misconduct. The motion was sealed and the oral arguments for the motion occurred during a closed hearing.
In this order, the court denied the defense’s motion. According to the court:
Kohberger was indicted by an impartial grand jury who had sufficient admissible evidence to find probable cause to believe Kohberger committed the crimes alleged by the State. Further, the State did not engage in prosecutorial misconduct in presenting their case to the jury.
This was one of two motions to dismiss the indictment denied by the court.
12/15/2023 Order Denying Motion to Dismiss Indictment for Inaccurate Instructions to Grand Jury
On July 25, 2023, the defense filed a motion to dismiss the indictment on grounds of error in the grand jury instructions; if the court is unwilling to dismiss the indictment, the defense argues, then the indictment should be remanded to a preliminary hearing.
The motion was partly based on the defense’s interpretation of Idaho Code § 19-1107: “The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.” The defense argued that warrant a conviction was synonymous with find guilty beyond a reasonable doubt; therefore, the defense argued, the burden of proof should be beyond a reasonable doubt rather than probable cause.
The court denied the defense’s motion in this order. The court states that warrant in the context of the statute simply means justify. In other words, the statute does not necessitate that the jury find the evidence, taken together, as only warranting a conviction, but that a conviction by a trial jury would be a reasonable outcome.
Investigative Genetic Genealogy (IGG) Information
This hearing pertained to the status of the incoming IGG information from the FBI and Othram to the state. In a court order in response to the defense’s request for the information and the state’s request for an in camera review, the court stated that it would conduct an in camera review of the IGG information to determine to what information the defense should have access.
Prosecutor Bill Thompson stated that the request for the IGG materials must go through the bureaucracy of the Department of Justice. According to Thompson, the FBI stated that the process could take as long as a month.
Anne Taylor said that she expects the state will receive the Othram reports prior to the FBI reports. She requested that the court implement separate deadlines for each set of reports. Thompson said that the court would be misled by partial information and that the court cannot properly assess the information and the relationship between the sets of reports without assessing all of the information in the same review.
Thompson stated that the IGG process began at “the private lab,” Othram, and the work was then transferred to the FBI. Othram provided the Idaho State Police laboratory preliminary reports. (Something to note in this hearing is that Taylor refers to the private lab by its name, whereas Thompson does not.)
Anne Taylor clarified that she would not expect the court to make decisions based on partial information.
While the state is attempting to block the defense’s access to some information, my impression of the state’s position is that they don’t want the court to make unprecedented decisions. The state did not cross-examine the defense’s expert witnesses during the August 18 hearing or put any of their own expert witnesses on the stand. They could have if they wanted to. The fact that they didn’t demonstrates how much effort they are willing to put into this fight, and it isn’t much.
Neither the state nor the trial court wants a conviction overturned on appeal, and the IGG territory is too new to guarantee that the state would be successful in front of an appellate court. Thus far, most trial courts confronted with this issue have granted the defendant their requested IGG materials but denied the defendant’s subsequent motion to suppress the evidence that asserts a Fourth Amendment violation. It is the path of least resistance: Give the defendant the discovery he wants regarding the issue untested in the courts, but then cut the defendant off by ruling that the defendant does not have standing when he uses the discovery to assert a violation of his rights, a ruling that is far more likely to pass muster on appeal.
To quote the judge from a previous hearing: “This is a death penalty case, and if I deny particular presentations that one or the other side believes has bearing on the case, it’s probably more wise to allow it, even if it might be on the edge.”
The Two SNP Profiles
I want to take a moment to explain one aspect of the IGG conversation that I think might have been misexplained, and that is the “two SNP profiles” have have been mentioned in court documents and hearings.
I believe that these two profiles are instead two files in different formats of the same SNP profile.
Anne Taylor said that the SNP profile from Othram did not come in the FASTQ file format typical of SNP profiles; instead, it was a data file smaller than the file from the FBI. She stated that there are potential issues here.
Thompson says that this is typical. He says,
The difference is that the [SNP profile] from the private lab is the initial profile that the lab analysts created from the portion of the DNA sample. What was transferred to the FBI is—after that original SNP had been uploaded to the database, access to the database was transferred.
It's our understanding that once the SNP is put into one of these databases, the database adjusts the SNP to fit with their criteria for them to do their searches. So, there are differences between the entirety of the two SNPs...
In an exercise of caution, we wanted to make sure the defense had both: The original SNP that the private lab created and also the SNP transferred with the database to the FBI... We are told—we understand—that the databases adapt the SNP to their search components, and so [the two SNP profiles] are going to look slightly different.
I believe that Thompson’s understanding of the process and his terminology is incorrect, although not consequentially so.
He is likely referring to two files in different formats: (1) The BCL file developed by the genetic sequencer, and (2) the VCF file input into the genetic genealogy database.
Just for clarification, because I have seen confusion around this: There is presently no reason to believe that the FBI tested the suspect’s DNA in the IGG process, and they probably did not generate their own SNP profile. Instead, by the time the state gave the two files to the defense, Othram was in possession of the first BCL file while the FBI possessed the VCF file.
Othram uses the Illumina NovaSeq 6000 for their DNA sequencing, which generates raw data files in binary base call (BCL) format. The BCL format is exclusive to the Illumina NextSeq and HiSeq Sequencing Systems and the NovaSeq 6000, and files in this format must be converted into the FASTQ format for use with analysis tools; the BCL file is unreadable on its own. The defense likely received the BCL file from Othram rather than the FASTQ format. If the defense wanted to recreate the IGG process, then they could begin with the initial BCL file and have their own lab convert the file to FASTQ.
Once the file is converted into the readable FASTQ format, it must first go through two other conversions.
Binary base call (BCL): Raw file generated by the NovaSeq 6000 used by Othram. This file format is unreadable by analysis tools and must be converted to another file format.
FASTQ: Most common format generated from sequencers. Contains data on the biological sequence of the entire genome, but the reads of the genome are not compared to the reference human genome and are therefore unmapped.
Binary alignment map/sequence alignment map (BAM/SAM): Contains mapped data from the reads of the SNP’s genome. BAM and SAM files contain the same data, but BAM files are machine-readable while SAM files are human-readable.
Variant call format (VCF): File containing the genetic variations between the genome compared to the reference human genome.
The video below is the best explanation that I have found about the differences between the file formats.
11/08/2023 Order Setting Deadline
The court has indicated that it intends to allow the defense some of the IGG materials, and in this order it gives the state a deadline of December 1 to hand over the IGG materials requested by the defense.
Other Documents
10/31/2023 Order Setting Status Conference
A status conference was scheduled for November 2.
10/31/2023 Order Regarding Notice of Zoom Information
Redacted Zoom information for the November 2 status conference.
11/08/2023 Stipulated Motion to File
The state and the defense both request the court to file Exhibit I of the defendant’s 10th Supplemental Request for Discovery under seal.
11/08/2023 Defendants 10th Supplemental Request for Discovery
The defendant’s 10th supplemental request for discovery.
11/08/2023 Order to File
Order to file Exhibit I of the defendant’s 10th Supplemental Request for Discovery under seal.
11/17/2023 Order Denying Second Motion to Intervene and Granting Defendant's Motion to Remove Media Cameras
The court announces its intentions to disallow media cameras and film the hearings with cameras under the court’s control.
11/20/2023 Motion to Temporarily Seal Exhibit
The state requests the court to file Exhibit I of the defendant’s 10th Supplemental Request for Discovery under seal.
11/20/2023 States Response to Defendants 10th Supplemental Request for Discovery
The state submits Exhibit 1 in response to the defendant’s 10th supplemental request for discovery.
The state requests the sealing of the relevant stipulation and order.
11/29/2023 Temporary Order Sealing Stipulation and Order to Transfer Evidence for Forensic Eval Pending Hearing
The court orders the relevant stipulation and order to be filed under seal.
12/01/2023 Notice of In Camera Submission
The state notices the court of its submission of the IGG materials for the court’s in camera review.
12/15/2023 Order Taking Judicial Notice of Case (Redacted)
The court took judicial notice of the grand jury transcripts, the audio recording, the exhibits, the grand jury instructions, and the jury questionnaires.