Bryan Kohberger asks Idaho judge to block ‘bushy' brows evidence, suggests witness’s artwork skews memory
Bryan Kohberger’s defense team is asking the judge overseeing his quadruple murder trial to block an eyewitness from testifying about the intruder she saw having “bushy eyebrows” on the night three of her housemates and another friend were killed in a 4 a.m. massacre.
First, the defense argues that allowing the witness, identified in court filings as “DM,” would be unfair, too vague and unfairly prejudicial before the jury. Also in the motion, attorney Elisa Massoth denies that the defendant, Kohberger, has bushy eyebrows.
She is also seeking an order barring any evidence related to “bushy eyebrows” in addition to keeping DM from using the phrase. In separate filings, the defense is also asking the court to limit the use of the words murder, psychopath and sociopath.
The surviving housemate is the only known witness to have encountered the intruder and lived to tell her tale after she froze in shock, and he walked toward a back sliding door – and recently unsealed text messages so she tried in vain to reach her murdered friends minutes after the intruder left.
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The motion became public after Judge Steven Hippler told defense attorneys and prosecutors they were keeping too many court filings out of public view, filing them under seal without proper justification.
Massoth wrote that DM was unable to describe the masked intruder to a sketch artist and did not know what color eyebrows the intruder had. The texts, at least the exceprts that have been made public, show she discussed the intruder’s mask covering his mouth and forehead. They do not mention his eyebrows.
“Eyewitness identifications are inherently unreliable,” said Edwina Elcox, a Boise-based defense attorney who formerly represented Lori Vallow. “Especially this one – it’s beyond vague.”
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But what stands out to her in this case is the revelation in court filings that DM had a wall of photos and artwork, some of which she had drawn herself, depicting detailed faces and prominent eyebrows.
Last month, defense attorneys tried to attack the housemate’s credibility, arguing her story changed in the span of three interviews with investigators and that she admitted she had been drinking, felt tired and her memory was hazy.
“There is a beyond strong explanation, when somebody is so unsure about why they may have this distinctive impression of eyebrows – because it’s all over the room,” Elcox told Fox News Digital. “It’s artwork that they’re drawing.”
Read the motion
The defense argued that this artwork could have influenced her memory.
“There is no reliability of the physical characteristics that D.M. has reported,” Massoth wrote. “Mr. Kohberger does not have bushy eyebrows, but the art work on D.M.’s wall and that which she draws eyes with eyebrows could be described as bushy, full, or prominent.”
Hippler previously said the witness’s statements could be “fodder” for cross-examination at trial but had no bearing on the finding of probable cause used to justify Kohberger’s arrest.
Elcox says she expects explosive cross-examination on this issue.
“People often accused defense attorneys of just like throwing spaghetti at the wall and hoping something sticks, like questioning an identification,” she said. “But that is some real meat and potatoes, about how to how to question the reliability of whatever was observed. I can’t imagine a more specific fact.”
The new filing also reveals DM had “lucid dreams of being kidnapped or chased,” she was a consumer of true-crime TV and podcasts.
“I think the judge will allow it on the grounds that DM will be subject to cross-examination and that the unreliability of the identification goes to the weight that the jury will give the description, not the admissibility of it,” Elcox, who has been closely following the case, told Fox News Digital. “But … this identification can absolutely be destroyed on cross-examination.”
Judge Hippler previously said DM’s testimony appeared more useful in establishing a timeline of the slayings than identifying the attacker.
According to a probable cause affidavit, DM overheard someone saying, “There’s someone here” after 4 a.m. She later heard what sounded like crying, and a male voice saying, “It’s OK, I’m going to help you.”
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A security camera at the home next door picked up “distorted audio” of what investigators believe were “voices or a whimper followed by a loud thud,” in addition to a dog’s barking at 4:17 a.m.
DM looked out her bedroom door and “saw a figure clad in black clothing and a mask that covered the person’s mouth and nose walking towards her,” according to the affidavit. She described him to police as over 5 feet, 10 inches tall, athletic but not muscular and having bushy eyebrows.
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They came face-to-face, and she froze in shock after he passed within three feet of her, according to the new filing.
Minutes later, she called three of the victims – Madison Mogen, 21, Kaylee Goncalves, 21, Xana Kernodle, 20. No one answered. Then she reached out to the other surviving roommate, “BF.”
Although it was believed DM locked her bedroom door and went to sleep after this encounter, the new filing reveals that after a brief exchange of texts with her roommate, BF urged her to “run” downstairs.
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According to other court filings released this week, DM spent the night in BF’s room and an unnamed person called 911 from BF’s phone around noon the next day.
At 10:23 a.m., DM texted both Mogen and Goncalves. “Pls answer,” she wrote. “R u up??” She then called her father around 11:40 a.m., and finally someone called 911 from BF’s phone around noon.
Timeline of Nov. 13, 2022:
- 4:00 AM: Suspect arrives at house
- Between 4 and 4:17: Time of murders
- 4:19: Roommate calls 3 victims, no one answers
- 4:22 to 4:24: Surviving roommates text each other from inside house
- 4:27: Roommate calls victims again, no one answers
- 4:32: Roommate texts Goncalves ‘Pls answer’
- 10:23: Surviving roommate texts victims, no one answers
- 11:39: Roommate calls her father
- 12:00 PM.: 911 call placed from roommate’s phone
Court documents revealed last month that DM also said the intruder may have been carrying a vacuum-like object. She did not recognize him at the time of the attack and did not recognize an unmasked photo of Kohberger after his arrest.
Kohberger, 30, is accused of killing four of the six people inside a home on King Road in Moscow, Idaho, around 4 a.m. Nov. 13, 2022. The fourth victim was Ethan Chapin, 20.
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Police arrested Kohberger Dec. 30 of that year at his parents’ house in Pennsylvania.
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He faces a first-degree murder charge for each victim and a single felony burglary charge. A judge entered not guilty pleas on his behalf to all charges.
The trial is scheduled to begin Aug. 11. He could face the death penalty if convicted.