(NewsNation) — The cases of Lori Vallow, who is standing trial in connection with the deaths of her two youngest kids and husband’s ex-wife, and Bryan Kohberger, who stands accused of the murders of four University of Idaho students, continue to grab headlines.
But with news in both cases developing every day, it can be hard to keep up.
In the video above, NewsNation senior national correspondent Brian Entin hosts an in-depth conversation with legal contributors Sara Azari, Jennifer Coffindaffer, Tracy Walder and Jesse Weber on what you need to know.
There’s a new Kohberger hearing set? What will it be about?
Weber: “I should tell you, a lot of this case we’re trying to figure out what’s happening because so much of it is sealed. I have heard reports that there’s a question of is there actually going to be a preliminary hearing in June? Or is this going to actually be a grand jury? And just to give everybody a little bit of insight in this, in Idaho, there would be one of two options for a defendant, right? Would a grand jury come back with an indictment and feel that there’s enough probable cause to go forward with the criminal charges? Or would this go to a preliminary hearing that would basically be in front of a judge? And I’ve seen, you know, back and forth reporting about that.”
“I think it’s an interesting conversation, right? Because if this goes to a grand jury, you have to convince a majority of them that there’s enough probable cause. It’s really just the prosecution’s side. Rarely, if ever, do you see any defense evidence being put forward. It’s not like a mini trial, preliminary hearings under Idaho law, at least to my understanding is, you know, defense attorneys could cross examine prosecution witnesses, they may even be able to present their own witnesses. So there would be advantages in a certain way for a prosecutor to get, you know, maybe a grand jury to ultimately come forward and indict Kohberger.”
“Whereas you know, that if you look at a preliminary hearing, another way of thinking is just trying to convince one person, the judge, to go forward. So that’s the only thing that I’ve heard, that could possibly be what this is trying to determine if there was a, you know, move this to a grand jury, as opposed to a preliminary hearing. Other than that, it’s a motion hearing that could be pretty much anything. But that’s what I’m hearing.”
If it was a grand jury, would they have a hearing for that?
Azari: “Nope. So the decision to take a case to the grand jury is entirely up to the prosecution’s discretion as their case, right. And when it’s happened to me, it’s always happened at the 11th hour. I’m thinking I’m going to prelim, I’m already prepping, I’m talking to my client, and then suddenly I get a call from the clerk’s office saying complete, you know, please come pick up your transcript from the grand jury. And I’m like, what? So it’s very much secret.”
“The way that it’s set is internally through the mechanisms of the court system, much like you said. With a jury trial, the prosecution notifies the court that they need a grand jury convened, the court then calls on the jury pool. Now a lot of counties, I look to see whether Latah County has this, and I didn’t find it. But a lot of counties have a grand jury calendar, you don’t see the case name. But you see that there’s going to be a grand jury on certain dates, right? I couldn’t find anything like this.”
“But you never need the permission of the court, a motion is made to get an order from the court allowing you a certain relief. You don’t need the court’s permission to convene a grand jury. Now what I do suspect, I don’t like reading the tea leaves, because I don’t like being wrong. But if I were to read the tea leaves here, I would think this might relate to the gag order.”
“There was a ruling by the Idaho Supreme Court last week, and I am reading these tea leaves just because of the timing, right? That essentially with respect to the gag order, saying to the press and the parties, because the press came in seeking a lifting of that gag order, and then the parties intervened, essentially agreeing to that relief. And the Supreme Court of Idaho said, yeah, we can give you that writ of mandamus, we can give you that relief, but you need to first get it from the Magistrate court, which is where we’re at right now. So it’s a procedural issue. So my thinking is this might be a motion to the Magistrate judge with respect to the gag order, since that ruling just came in last week. But again, I am just speculating based on timing. And the fact that I know that for grand jury, they don’t need to make a motion.”
Entin: “The only thing that I questioned about that is with the fight over the gag order, with the media coalition against the gag order, it’s been like it’s own case, even on the Idaho website. It’s separate from the Kohberger criminal case.
Azari: “Right. But like Jesse said, motions are made for just a garden variety of things, like for housing issues. Right now, I don’t think this is like an administrative sort of housing issue, because notice periods in the statute when you set a motion, and this is so far out that I do think it’s some sort of an evidentiary motion, it could very well be a discovery motion. The defense might be expecting certain discovery, pre-preliminary hearing, and there’s rules about what you get pre-trial vs. pre-lim. So it’ might be some sort of a discovery motion, something meaty, that requires notices being given under the statute. But I don’t believe it has to do with the grand jury because convening a grand jury does not require a motion or court order.”
Coffindaffer: “It’s not going to be about the gag order. That is a separate issue. And that was sent down to a lower court. So if there’s a court, it could go to that appellate court, it could go to a different court, they did not specify the court. It said it should be addressed by another court. That’s a separate issue, I believe.”
“This is the Kohberger case. And on the Kohberger case, there has to be a motion for the grand jury. I agree with you. It is all secret, anything that happens there, the witnesses who’s there, it’s all secret. But there has to be an order. And I don’t know, we were looking this up today, and I never saw anything that says that order could not possibly be contested in Idaho. I’ve read everything there is to read, particularly to Idaho, which is way different than the federal law, but specifically their rule regarding grand juries. And I don’t know if that order is necessarily secret. Remember, Sara? They don’t just convene grand juries, they prefer preliminary hearing. I’m not sure you’re right, and I’m not sure you’re wrong.”
Azari: “The Supreme Court specifically said the Magistrate court needs to decide the issue about the gag order. I totally defer to you guys on it being separate proceeding, not part of the Kohberger case. But I’m just saying it is this court. It is the Magistrate level that decides that issue. But I have not seen any rules specific to Idaho that says that you need a court order for a grand jury. So that’s why I don’t believe this has to do with convening the grand jury. However, I do believe it has to do with something something substantive. And you know, it could be discovery. It could be witnesses. It could be any of those things.”
Entin: Do you think, Tracy, it could have something to do with the change of venue or would the timing be weird for that?
Walder: “I don’t think that this is about the gag order. I do agree with Jennifer. It is a lower court really that this was bumped down to. So I do think it’s something more substantive.”
“It could be about change of venue. But I’m actually wondering too, if it’s about witnesses because we’re kind of on the heels here of everything that had to with Bethany Funke and her testimony. So I’m wondering if some of this may have to do with that. Although, I know that’s really specific and that may not be why this is happening. It could be a change of venue, but I would imagine that’s not something that they would be doing at this point. It seems a little bit removed to be doing that. But again, I really am guessing here at this point. Although, I concur this is not about the gag order.”
One of the survivors of the Idaho college killings, Bethany Funke, has agreed to be interviewed by Kohberger’s defense counsel. Will that be in lieu of testifying at the preliminary hearing?
Weber: “What it leads me to think is look, the defense thing, she has some information that is going to be exculpatory to Bryan Kohberger. And when I say that, it basically shows that he’s innocent, right? We don’t know what they think she has. And that’s kind of been disputed by her side. So the fact that she’s agreeing to an interview, it leads me to think and not necessarily a deposition, that they want to get some information from her that is going to lead them towards something else, right, that’s going to lead them toward another path to follow. If she says something that’s going to help them find evidence that they can, in fact, use in a preliminary hearing.”
“And I agree with you, I think the last thing that she wants is to go down back to Moscow, have to relive what she experienced and being in that house when these killings took place. So it leads me to think that and look, again, this is speculating, we don’t really know what they believe she has. But I think they’re going to speak with her to get some additional information to go down a different route, interview somebody else, some other kind of information, because they believe that she holds the key to Bryan Kohberger’s innocence. It’s a lot to ask, considering what we saw in that probable cause affidavit. But that’s what I’m trying to see and what I believe might be happening.”
Entin: “If the defense team goes to Nevada to interview Funke, is it like they just go to a conference room and this is almost like a secret meeting, or is there a court reporter there and this becomes part of the record?”
Azari: “It can be done in the comfort of her home.”
“I want to say a couple of things. What Jesse was saying is partially true that using this witness as a discovery tool. In criminal proceedings, it’s not like civil, we have depositions and interrogatory keys, we have very limited sort of places in the case where we can use the subpoena power of the court, as the defendants to get information that we need before we get to trial, right? Because a lot of these discovery rules don’t give us discovery until closer to the time of trial.”
“So here’s what’s going on here. To me, it’s obvious. They’re claiming she’s material and that needs to testify at the preliminary hearing. This interview is so that they could determine materiality because it is the defense’s burden to show that now, if she is material, then she absolutely will be compelled to come to the preliminary and testify if there’s a preliminary hearing. If she’s not material, it’s still a gain for the defense because guess what happens? This I do this all the time. You know, we go to witnesses and it’s their right to talk to us or not, OK, they might just slam the door and say we don’t want to speak to you, we’re only going to speak to the DA right? But when they don’t, it takes me five minutes. I take this thing out. It’s like three pages with the declaration, and I get them served. And now they’re compelled. And there’s a subpoena, like a court order. And now then they go ‘Oh, I don’t want to go to Idaho. I don’t want to go to California. So what can I do to get out of this?’ OK, we can then sit down and talk to you. So it’s also strategy like Jesse said, There’s gain for the defense here, even if she’s not material enough to pass muster, to testify at the prelim, the defense gets to flesh out what is within this other eyewitnesses knowledge that they otherwise would not have an opportunity to do. Because guess where you’re going after prelim, you’re going to trial.”
“And to your point about the court reporter, there’s no court reporter. I was tweeting and retweeting Jennifer earlier about law enforcement. There’s no law enforcement in an interview like this. This is not a prosecution interview. This is a defense interview. The order actually says that she will be interviewed by the Bryan Kohberger defense lawyer or something like that I’m not quoting. Now, defense lawyers don’t want to become witnesses and sit in a room with a witness, right? Because if they have to impeach them down the line, they don’t want to be the ones that are taking the stand. So what we do, is we take in a former law enforcement who was a licensed investigator, like somebody like Tracy or Jennifer to be our witness. So that’s pretty much how it goes. The only way that we would produce that, if it’s documented, I always tell my investigators do not put anything down in paper until we talk. I don’t want it down on paper, because then I have an obligation to produce it. So it doesn’t go down on paper. And if this person testifies at trial, then I wouldn’t have to produce any written sort of statement of her interview that I have. If I don’t have it, then I don’t produce anything.”
Entin: “So you don’t have to keep track of what she says?”
Azari: “No, not in writing.”
Walder: “I spent a lot of my time interviewing terrorists and criminals, and I know that she’s not, she’s neither of those. But you know, I think I understand that this case is not obviously being tried in the court of public opinion. Obviously, we don’t do something like that. But we have to be careful in terms of how she is treated. I think the defense going to her, interviewing her there, those are all about optics. Because the reality is, is that doesn’t sit well sometimes with people if you’re forcing someone to really return to the scene of quite frankly, the trauma that she had. I personally do not think that she has anything, exculpatory on Kohberger. But I do think that this is a bit of a fishing expedition.”
“If you read that probable cause affidavit, I’ve read it several times. I’m just really struggling to understand what exactly it is she’s going to bring to the table. And I know not everything was released in that. But I do think this is a bit of a fishing expedition in a way, but they have to be careful in terms of how she is treated, because the reality is, is she is undergoing a lot of emotional mental duress right now. And they really need to be careful that you know, they’re not really victimizing her. And so I think that’s something they’re weighing in on.”
Weber: “It seems to be where Bethany Funke comes in and plays a vital role is the timeline. The last time she saw Ethan, Xana, when they were at the fraternity house, when she believed they came home, when she said everybody else came home. That timeline is critical for the prosecution in terms of mapping out when the killings happened and also mapping out the whereabouts of Bryan Kohberger. So if they can say that her timeline of events was off, that could be very problematic for the prosecution. That’s maybe what they might be trying to hone in on.”
Coffindaffer: “Yes, I concur. Not only that piece but also anything that could be not in line with what DM said, whether it’s talking about noises or whether it’s talking about a dog barking, anything that will show something contra to that. I think that’s what they want her in there for it. Look, they have all her statements. Discovery has been made. Every report regarding what she had to say they have already and we saw that their investigator could not produce any information, at least that was on his affidavit, anything factual as to what she had to say that was exculpatory was a big goose egg. I concur with everything Tracy said. I want to say, they’re going to know the prosecution will know exactly what she says in there. This isn’t some big hide, some big show clandestine situation. Her attorney is going to be there in there, and she’s a prosecution witness. You know, they’ve already interviewed her.”
Azari: “We’re saying the same thing, but not – right? It is a defense interview. A defense interview does not involve law enforcement. Even though most of our private investigators are former law enforcement like yourself, because we respect you, they are not current law enforcement. Law enforcement works for the prosecution. So the fact that she’s a prosecution witness does not allow law enforcement officers working for the prosecution to sit in on an interview. That doesn’t mean it’s secret. No, I didn’t say that. I mean, they could stipulate for somebody from the prosecution to sit in. But as it stands this order on its face, it says that the defense gets to interview her. And so the defense doesn’t bring in, you know, current law enforcement officer to what to help them out. No, they’ve already had a chance to do their investigation. This is the defense now trying to see if she’s a material witness for prelim.”
“Now, I agree with Tracy, too. It’s a fishing expedition. But hey, what’s wrong with a fishing expedition? We don’t get a lot of opportunities to get discovery. So to me, it’s smart strategy. If you can use some, you know, some proceeding, which there’s not a lot of and a criminal proceeding before trial, to be able to get the information you need to put together the best defense you can then hey, power to you. I mean, you know, that’s, that’s my position with respect to this. I mean, I think, I don’t know how far her attorneys have thought about it or Kohberger’s attorneys have thought about it. But I think, you know, I think this is a great opportunity for the defense, whether she’s material or not”
Walder: “We also just have to look at her as a witness, right? (…) I don’t think the defense is hanging their hat on their testimony. These are two young ladies, who you know, I don’t know what they were thinking at that particular time, if they had been intoxicated, or those kinds of things. So many other factors go into that. I don’t think the defense is hanging their hat on their testimony. But to Jesse’s point, particularly in the case of Xana and Ethan, maybe her timeline might come into play. But I do think that’s something she and her attorney are hoping is that they agreed to do this interview, they do it, close the chapter on it and move along because they have nothing to offer. That’s what I’m thinking.”
Azari: “That may very well be the case. I mean, there might be a dispute as to whether what she has to say is material or not. And so she sits down, you know, in her home state says what she knows and saw and heard. If it’s not material, so be it. But again, I think long run, at least the defense knows what this person is going to say down the road at trial.”
Coffindaffer: “That subpoena has already been quashed, so they would have to re-subpoena her and secondarily as an expert witness. If I were in there as working with this team, I would take notes and I would write a report. There would be no defense attorney that could convince me not to write a report because that’s the proper thing to do.”
What does Funke know about the Idaho case that could be exculpatory evidence?
Entin: “We don’t know. That’s the issue in that document by the investigator. It just said exculpatory. It didn’t give any details.”
What do witnesses do at preliminary hearings?
Azari: “So the preliminary hearing is really a tool for both sides to test the strengths and weaknesses of the case. Sometimes certain changes dropped, sometimes they don’t. Mostly they don’t. But in this case, I’m sure he’ll be bound to answer to a trial. But really it’s for the prosecution to put on its witnesses. Rarely does the defense put on an affirmative defense to then be able to call its own witnesses.”
Who gets to decide to have a grand jury? Is it the prosecution?
Weber: “Yeah. They weigh the strengths of it. They weigh whether or not they want to go the preliminary hearing route. They want to go the grand jury route. Look, they are the only ones, particularly in this case, and so much of it is sealed. They know how strong the evidence is (…) But yeah, this is the prosecution’s case. This is their burden, and they’re going to have to decide which is the best way to show that.”
Does the sealed nature of the case help or hinder a jury?
Weber: “As much as I would like to have more information and us not reading the tea leaves, I 100% understand why there is a sealing nature here. I think it’s trying to protect not only the prosecution’s case, but it’s also protecting the defendant as well.”
Walder: “My biggest reason for not wanting this to remain sealed right now is exactly what Jesse’s talking about. I don’t want this to taint a jury pool. I want this to be a fair and successful trial, and I think this is the only way quite frankly, right now to do that.”
Azari: “The problem with a gag order is that inevitably it favors the prosecution because usually when there’s information and leaks that come out, they’re pro-prosecution and anti-defense. The defense doesn’t really get to say anything. The defense can’t really defend those things. I don’t know what I would do in this case. As much as I agree with Tracy that I want my clients to have a fair trial jury, not be tainted. It also has this problem that it really favors the prosecution more than the defense.”
Coffindaffer: “I don’t even want cameras in the courtroom because I just want it to be pure. I want it to be without all the sensation around it. I think that’s what is best for justice for the victims.”
Turning to the Lori Vallow case. Do the calls revealed in the Lori Vallow trial last week help or hurt Vallow when it comes to the jury?
Weber: “I don’t think it helps her.”
(…)
“I don’t think those calls help her in any which way. Because remember this is not an insanity case. There’s no insanity law in Idaho. This is not a question of if Lori Vallow understood the circumstances of it. This is just about: Was this murder? Was this conspiracy to commit murder? I think it was such a strong piece of evidence for the prosecution.”
How does the alleged involvement of other people play into the minds of the jury?
Walder: “Are they splitting the blame? Weighing it differently? With all of these folks, I think they’re still doing a really good job of keeping the focus on Lori and almost having it look like Cox was sort of a henchman for her.”
Coffindaffer: “Because of the testimony regarding the forensics and JJ and Tylee’s bodies, everything that happened – The reality is that the jury is going to want somebody to pay, and I think they’re going to look straight at Lori.”
How will things play out for Lori Vallow’s defense?
Azari: “So this is, to me, is a very difficult case. For the defense, I expect that they’re going to lean into the idea of cult indoctrination, manipulation, heavily. Like Jesse said, I haven’t seen anything, I think it’s going to come in their case. But I don’t know how they can turn this around, given some of what I’ve seen, and this sort of, you know, we’re like saying that she’s a follower of Chad, she’s under his spell. And, yeah, we don’t have the insanity defense. But we have diminished capacity, we can argue, right?”
“The problem is, there are witnesses that are saying that she was carrying the mantle for this cult, and she was actually soliciting people to join the mission. So, I don’t know as much as it’s so highly circumstantial, it’s just looking worse and worse. And then that horror from last week is something that I don’t think these jurors will forget.”
Weber: “One of the things that I’ve speculated during the course of this trial is how much would she (Lori) turn against him (Chad)? I’ve got to tell you. I haven’t really seen it. So there’s a part of me that feels she told her lawyers, ‘Listen, do your best to get me off, do your best to have the jury question the prosecution’s evidence, raise the idea of reasonable doubt, but don’t throw my husband, Chad Daybell, who I love and adore so much, under the bus and blame him. There’s a part of me that feels like that might be happening. I could be 100% wrong, but from what I’ve seen these two are close.”