Kohberger defense team wants Moscow survivor’s testimony. Here’s why they may not get it

Bryan Kohberger’s defense team thinks one of two surviving roommates from the Moscow stabbings that left four students dead has information that could help clear their client and seeks her testimony.

Her attorney aims to prevent her from having to appear at June’s scheduled preliminary hearing.

At the request of Kohberger’s public defenders, Judge Megan Marshall of the 2nd Judicial District Court in Latah County last month compelled Bethany Funke to travel to Idaho for the hearing, according to court records obtained by the Idaho Statesman. Marshall wrote that Funke “may be a material witness for the defendant in this case,” and a formal subpoena was issued April 11 in Nevada, where Funke lives.

Marshall will determine at the planned weeklong preliminary hearing set to start June 26 whether prosecutors have established probable cause to send Kohberger’s case to trial.

A criminal investigator working for Anne Taylor, Kohberger’s public defender, said in a legal filing that police interviewed Funke several times as part of their investigation into the November slayings at an off-campus rental home near the University of Idaho. Funke and another roommate went unharmed in the knife attack that killed their housemates, Madison Mogen, 21, Kaylee Goncalves, 21, and Xana Kernodle, 20, as well as Ethan Chapin, 20, who was staying the night with Kernodle, his girlfriend.

In addition, Funke was present when police were called and arrived to the King Road home to find the slain students — about eight hours after police allege Kohberger entered the home around 4 a.m., criminal investigator Richard Bitonti said. Funke has information that is “exculpatory to the defendant,” he wrote, a legal terminology meaning the details disprove Kohberger’s guilt.

“Portions of information Ms. Funke has is exculpatory to the defendant,” Bitonti wrote to justify the out-of-state subpoena. “Ms. Funke’s information is unique to her experiences and cannot be provided by another witness.”

The new wrinkle in Nevada adds another U.S. state to the homicide case, which has brought national and international attention to Idaho.

Kohberger was attending graduate school just over the Washington state border at the time of the homicides, and was later arrested while visiting his family in Pennsylvania. He and his father also were captured on police body-cam footage in Indiana as they road-tripped from Washington to Pennsylvania during Kohberger’s winter break from Washington State University.

Funke’s bedroom was on the first floor of the three-story home in Moscow, and she and the other surviving roommate, whose bedroom was on the second floor, were home at the time of the killings, police said in an affidavit for Kohberger’s arrest. Funke told police in an interview that she saw Kernodle and Chapin at the Sigma Chi fraternity house from about 9 p.m. Nov. 12 until about 1:45 a.m. Nov. 13., when they returned to the King Road home, police said. Sigma Chi is located fewer than 600 feet from the home where the homicides took place.

Funke and the other survivor each told police that all five housemates and Chapin were back at the home by 2 a.m., according to the affidavit. Everyone was asleep or in their respective bedrooms by about 4 a.m., with the exception of Kernodle, who received a food delivery to the home at approximately 4 a.m., police said.

Police said records they downloaded from the two surviving roommates’ cellphones helped lead them to believe that the homicides happened between 4 a.m. and 4:25 a.m. One of the roommates’ cellphones also was used to call 911 dispatch just before noon Nov. 13, police said.

There are no other references to Funke in the affidavit to indicate what else she may have told investigators.

It is not known whether the other surviving roommate was served with a subpoena to testify at the preliminary hearing. She told police she saw a masked man in the house.

Funke fends off subpoena

Funke’s attorney is trying to nullify the court-ordered subpoena. The legal demand for her client to appear in Idaho was improperly issued because a hearing on the matter was not first held in Nevada, Reno-based attorney Kelli Anne Viloria said in an April 21 court filing.

“… (T)here is no authority to summon a Nevada witness to an Idaho matter without a Nevada judge making a finding of materiality, necessity and the lack of undue hardship,” Viloria wrote, citing a law that does allow for such subpoenas, but only within the state. “Thus, even if that law applied by analysis, no hearing occurred and that important procedural requirement was not met.”

An expanded gag order that Marshall issued in January restricts attorneys for victims or witnesses in the Kohberger case from commenting about it outside of court filings.

Beyond issues over following proper procedure, Viloria, a former longtime county prosecutor, wrote that a preliminary hearing is not the right setting for the defense to summon an out-of-state witness, which, she said, Nevada law does not offer.

“A preliminary hearing is not meant to become a mini-trial due to its limited purpose in deciding of probable cause,” she argued. “Arguably then, if Ms. Funke possesses exculpatory evidence, which remains to be seen, there is no place or reason to present that evidence at a preliminary hearing.”

The presentation of evidence by the defense is exceedingly rare at a preliminary hearing, but it is allowed in Idaho, said Edwina Elcox, a criminal defense attorney in Boise who previously served as an Ada County deputy prosecutor. Although it’s seldom done because it can give away defense strategy to the prosecution, she said, an attorney may pursue it if it could prevent a case from going to trial.

“If we’re using the word exculpatory, that means it negates his guilt,” Elcox told the Statesman in a phone interview. “That word is very legally significant. … If whatever this witness possesses is so significant, it could convince the judge that the state has not established probable cause and to say, ‘OK, this evidence shows that it wasn’t him.’ ”

The legal and procedural pushback from Funke and her attorney also may derive from the request for her testimony coming from the defense in this case rather than the prosecution, Elcox said.

“People typically want to cooperate with law enforcement agencies,” she said. “So I think it is entirely feasible that if the prosecution was seeking her attendance, that there wouldn’t be this issue of dropping the subpoena or whatnot.”

It is unclear whether Funke will be forced to show up June 28 in Moscow through the remainder of the hearing, as the subpoena required.

A material witness case is listed online as “pending active” with Judge Barry Breslow of the Second Judicial District Court in Washoe County, Nevada. The most recent court filing is Viloria’s motion Friday to invalidate the subpoena.

There are no upcoming hearings on the case docket, Alicia Lerud, the district court’s administrator and clerk of court, said by email.

“And I am not certain one will be scheduled,” she said.