Bryan Kohberger’s defense team will attempt to convince an Idaho judge to throw out the quadruple murder indictment against him in a pair of hearings Thursday.
The 28-year-old with a master's degree in criminal justice is accused of butchering four University of Idaho students in a 4 a.m. home invasion attack days before Thanksgiving last year.
Pennsylvania police arrested Kohberger at his parents' house in the Poconos roughly seven weeks after the massacre. But in August, Kohberger’s defense team alleged grand jury bias, "inadmissible" and insufficient evidence, and prosecutorial misconduct.
It’s a routine move but rarely successful, experts tell Fox News Digital.
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"The motion to dismiss is a move that every defense attorney makes prior to trial," David Gelman, a Philadelphia-area criminal defense attorney and former prosecutor, told Fox News Digital. "If an attorney doesn’t make this motion, regardless if it has merit or not, they are pretty much committing malpractice."
In this case, legal experts say Kohberger’s arguments are a stretch.
"The defense motion raises meritless arguments and has no chance of success." Neama Rahmani, a Los Angeles-based trial lawyer and former federal prosecutor, told Fox News Digital.
In addition to the shortcomings in Kohberger’s argument, he said, prosecutors have a pile of both direct and circumstantial evidence to prove probable cause.
"This is a ‘Hail Mary’ attempt by the defense attorneys and an effort to create more appellate issues if Kohberger is convicted and sentenced to death," he said.
Judge John Judge will oversee two hearings on Thursday, one behind closed doors to address the grand jury allegations, which must be kept secret, and a public hearing will follow on Kohberger’s other claims. Experts don’t expect the defense to succeed at either.
"They will have to present real, concrete evidence to the judge that there is a legitimate challenge to the grand jury that was empaneled and the actual grand jury proceedings," said Edwina Elcox, a Boise defense attorney who previously represented "Cult Mom" Lori Vallow. "Legal conjecture and theory will not suffice."
Even if the defense does succeed, she said the case wouldn’t go away.
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Prosecutors would still have a chance to convince a judge at a preliminary hearing or secure a new indictment.
"The defense is hanging on anything they possibly can," Gelman said. "A grand jury can indict a ham sandwich. All the prosecutor needs to show is their facts. The defense does not have an opportunity to present anything, which is why it is so easy to indict someone."
Police have identified the student victims as Kaylee Goncalves, 21, Madison Mogen, 21, Xana Kernodle, 20 and Ethan Chapin, 20.
All four had been stabbed multiple times. Some were asleep at the start of the massacre. Investigators say there was a knife sheath with Kohberger's DNA on it under Mogen's body.
Kohberger, who attended the neighboring Washington State University in pursuit of a Ph.D. in criminology, drove a white Hyundai Elantra, the same type of car investigators identified as the suspect vehicle, and allegedly turned his phone off before heading to and from the crime scene, according to the affidavit.
Police, citing phone records, also alleged that he stalked the victims' home on a dozen occasions before the murders and drove by once more hours afterward.
The judge entered not guilty pleas on Kohberger's behalf at his arraignment in May. Kohberger previously said, through a public defender when he was arrested in Pennsylvania, that he looked forward to being exonerated.
He faces four charges of first-degree murder and a felony burglary count. If he is convicted, the maximum penalty could be death – possibly by firing squad.
