Idaho prosecutors seek death penalty against Bryan Kohberger

>> IT IS A RELIEF. I'M GLAD WE'RE A SITUATION OF STRENGTH AND THE EVIDENCE IS THERE. YOU KNOW, WE FEEL THEY CAN GO FORWARD WITH THIS. >> THE FAMILY'S ATTORNEY BELIEVES IT IS A CLEAR-CUT DEATH PENALTY CASE. >> YOU ARE NOT GOING TO PURSUE DEATH PENALTY ON THIS, WHO ARE YOU GOING TO PURSUE FOR THE DEATH PENALTY? >> Reporter: HE IS SET TO APPEAR FOR ANOTHER

PRETRIAL HEARING. THEY'RE ASKING THE JUDGE TO PAUSE LEGAL PROCEEDINGS UNTIL THEY RECEIVE THOSE MATERIALS. ALREADY A KEY PART OF THE CASE FOR BOTH SIDES, BRYAN KOHBERGER'S DNA AND WHERE IT WAS FOUND. PROSECUTORS SAID IN A COURT FILING EARLIER THIS MONTH THAT BRIANYAN KOHBERGER'S DNA IS A MA TO A KNIFE SHEATHE FOUND AT THE MURDERS, HE DID NOT FIND ANY VICTIM DNA IN HIS APARTMENT, OFFICE, HOME

OR VEHICLE. >> IS THIS YOUR CAR? >> HE'S HAD OVER A MONTH BEFORE THOSE SEARCH WARRANTS WERE EXECUTED TO THROW AWAY HIS CLOTHES, WASH HIS CLOTHES, WASH HIS CAR, CLEAN OUT HIS APARTMENT. THERE IS MULTIPLE WAYS TO EXPLAIN THE LACK OF DNA IN HIS SLEEK VEHICLE, IN HIS APARTMENT. THERE IS NOT A LOT OF WAYS TO EXPLAIN HIS DNA ON THE SHEATHE OF THE MURDER WEAPON.

>> Reporter: THE OFF CAMPUS HOME WHERE MADISON LOCAL, LADY GONZ AND ETHAN WERE KILLED WAS SET TO BE DEMOLISHED BEFORE A JUJ RULED IT SHOULD BE PRESERVED. NOW THEY HOPE TO HAVE IT DOWN AHEAD OF THE NEW SCHOOL YEAR. >> I DON'T WANT TO SIX MONTHS FROM NOW HEAR SOMEBODY IN THE COURT CASE SAY I REALLY WISH WE COULD BE IN THE HOUSE RIGHT NOW. >>

ONCE THE CASE IS OVER, THEN THEY CAN MOVE ON. BUT RIGHT NOW, IT'S THE CRIME SCENE. >> Reporter: BRYAN KOHBERGER HAS NOT ENTERED A PLEA, A NOT GUILTY PLEA HAS BEEN ENTERED BY THE JUDGE ON HIS BEHALF. AND REGARDING THE DEATH PENALTY, THERE IS A NEW LAW HERE IN IDAHO ALLOWING FOR DEATH BY FIRING SQUAD. THEY CAN'T LOCATE THE CHEMICALS NECESSARY FOR LETHAL INJECTION. THAT LAW

GOES INTO EFFECT JEWEL 1st. >> THANK YOU, ERIN. WE WANT TO TURN TO DANNY SAVALES. SO THE PROSECUTION IS SEEKING THE DEATH PENALTY. YOU WONDER IF THAT MAKES US THINK THEY ARE VERY CONFIDENT WITH THEIR CASE. WHAT DO YOU THINK? >> ONE STUDY SHOWS THAT IDAHO PROSECUTORS SEEK THE DEATH PENALTY IN ABOUT 20% OF DEATH PENALTY-ELIGIBLE CASES. THEY ONLY GET DEATH PENALTIES IN ABOUT 3% OF

THOSE THAT GO TO TRIAL. SO IDAHO PROSECUTORS, IT SEEMS, ARE WILLING TO FILE FOR THE DEATH PENALTY. THAT MAY BE A NEGOTIATING TACTIC. IF THEY FILE THE NOTICE OF INTENT, THE DEFENSE SAYS THE STAKES ARE HIGHER. PERHAPS THAT'S MEANT TO BRING THEM TO THE TABLE. THE DEATH PENALTY, WHICH THE SUPREME COURT VERY MUCH RESTRICTED, THEY'RE MORE PERMISSIVE THAN OTHER RESTRICTIONS. >> HOW DOES THAT AFFECT THE

CASE? LET'S SAY IT GOES TO TRIAL AS A CAPITAL CASE. HOW DOES THAT AFFECT THE JURY THAT'S SELECTED AND THE EVIDENCE THAT'S PRESENTED? >> ABSOLUTELY. SO IN THESE CASES IT BECOMES TWO TRIALS. YOU HAVE A TRIAL ON THE GUILT PHASE AND THEN YOU HAVE A TRIAL ON THE PENALTY PHASE. THEY HAVE TO TAKE INTO ACCOUNT THE AGGRAVATING FACTORS AND THE MITIGATING FACTORS. IN IDAHO, IDAHO HAS

A LIST OF AGGRAVATING FACTORS. IF THE JURY FINDS DURING THE PENALTY PHASE THAT ANY ONE OF THEM WAS MET -- AND I'LL GIVE YOU AN EXAMPLE OF ONE. THAT DURING THE CRIME THE KILLER COMMITTED ANOTHER MURDER. THAT IS EXACTLY WITHIN HERE. THERE ARE OTHER AGGRAVATING FACTORS THAT FIT AS WELL. IF THE JURY FINDS THAT BEYOND A REASONABLE DOUBT, THEN THE DEFENSE HAS TO COME UP WITH

SOME MITIGATING FACTORS OR ELSE THE JURY MUST ESSENTIALLY IMPOSE THE DEATH PENALTY. SO IDAHO PROCEDURE PROVIDES A CLEAR PATH TO THE DEATH PENALTY WITH THOSE AGGRAVATING CIRCUMSTANCES. ONE OF WHICH, IF WE GET TO THAT PHASE, IT'S NOT LIKELY HE WILL BE FOUND OF ONE MURDER AND NOT THE OTHER. >> THAT'S A PRETTY STRICT STATUTE IN IDAHO, IT SOUNDS LIKE. >> PERMISSIBLE FOR THE DEATH PENALTY. ALTHOUGH

THE SUPREME COURT HAS LIMITATIONS AND IMPOSES WHEN COMPARED TO OTHER STATES IT COULD BE SAID THAT IDAHO IS MORE DEATH FRIENDLY. >> HOW LIKELY CAN THE COURT GRANT THE DEFENSE ACCESS. >> I AM A DEFENSE ATTORNEY, BUT THE STATE'S ARGUMENT IS ESSENTIALLY THAT THERE ARE TWO KINDS OF DNA. THERE IS WHAT WE'RE FAMILIAR WITH WHICH IS STR. THIS IS GOING BACK TO THE O.J. CASE. THIS

IS TRADITIONAL DNA EVIDENCE. THE STATE USED THIS NEW KIND, IGG OR FORENSIC GENOLOGY EVIDENCE, THEY USED THAT TO BUILD A GENE LOGICAL TREE, BUT THEY'RE SAYING WE USE THAT AS A TIP, AS A LEAF. WE'RE NOT GOING TO USE ANY OF THAT AT TRIAL, JUDGE. THEREFORE, WE DON'T HAVE TO TURN THAT OVER TO THE DEFENSE UNDER THE RULES. THE DEFENSE CALLS FOR ANYTHING THAT IS A

SCIENTIFIC REPORT TO BE TURNED OVER. THIS ALSO IS SOMETHING THAT WILL BE VERY COMPELLING INFORMATION THAT COULD EXONERATE OUR CLIENT. WE SHOULD GET IT. THE STATE HAS A MORE TECHNICAL RULE-BASED ARGUMENT AND THE