Brian Buckmire
Appearances
20/20
'The King Road Killings': 911 Call Released
The easy answer, and again, I'll just say I'm a former public defender, so I'm more aligned with what Ann Taylor does in this case. And so maybe my bias comes out in talking about this case to some degree. But the easy answer is when the DNA helps you, you want it in. When the DNA doesn't help you, you want it out. So I've done this exact argument in Brooklyn recently. Let me explain it.
20/20
'The King Road Killings': 911 Call Released
And I think after explaining it, you and your listeners will completely understand where the defense is going with this, right? So let's take a gun, for example. I touch it. You touch it. Julie touches it. They would not be able to distinguish my DNA from your DNA from Julie's DNA because so many contributors were on it. They would say it's inconclusive.
20/20
'The King Road Killings': 911 Call Released
Another reason why they might not say it's conclusive or it's inconclusive is they can only test, and this is specific to New York, if there are 20, and the way they measure DNA is picograms, if there are 20 picograms of that sample.
20/20
'The King Road Killings': 911 Call Released
So for whatever reason, when I touch an object, my skin cells don't flake off at the same rate that yours do, for example, Kena, and I only drop 10 picograms of DNA, but you drop 30. there'd be male DNA on that object, but they would call that inconclusive.
20/20
'The King Road Killings': 911 Call Released
And what the defense is arguing here is if you can't say whether or not Brian Koveberger is under these fingernails, what's the relevance of that information? All you're able to say is a human being is under this person's fingernails, and that's not relevant, that's not helping the jury, and that information should not be presented. Now, they took that information and took it to another lab,
20/20
'The King Road Killings': 911 Call Released
And again, I'm talking specifically to New York, can only calculate 20 picograms and four or less people. But there are other labs around the country that have more sensitive instruments. So they can detect less than 20 picograms. They can detect if four or more people have touched an object. So from my understanding is they went to another lab that has more sensitive instruments.
20/20
'The King Road Killings': 911 Call Released
And when they ran it through that instruments, they were able to say that Brian Koberger is excluded. Because in a case where someone has brutally murdered four individuals, you would suspect that there would be defensive wounds on that individual and the victim would have scratched that person.
20/20
'The King Road Killings': 911 Call Released
And so if Brian Koberger's DNA is not under their fingernails, they've got a pretty decent argument there.
20/20
'The King Road Killings': 911 Call Released
So yes and yes. So yes, it would be presented to the jury if the defense felt it necessary to put on their own case. And I would suspect that they would.
20/20
'The King Road Killings': 911 Call Released
So for two reasons, one is you want to get multiple bites at the apple. Let's say this. Let's say I say, Kena, I want to be on your podcast for a number of reasons. I dress really well. I'm a defense attorney and I know like the strategy behind this. Is my strongest argument probably that I know the strategy of another public defender?
20/20
'The King Road Killings': 911 Call Released
Yeah, but I'm also gonna have those other two arguments because maybe you're gonna go, Brian, I want Brian on because I like his suits. And I don't know which argument's really gonna win, so I just throw everyone out. And that's what every defense attorney does. The other reason is you're not just arguing to the judge in front of you, you're also arguing to the appellate judge.
20/20
'The King Road Killings': 911 Call Released
Because at some point in time, if Brian Koberger is found guilty, you cannot raise arguments on appeal that you did not raise at trial. And you don't know who that appellate judge is going to be. It's those two reasons why you throw everything at a judge.
20/20
'The King Road Killings': 911 Call Released
I think this judge saw, as we all did, how – and I'm not trying to speak poorly of Judge John Judge or anyone else who was on the case prior to. I think it's a difference of opinion, difference of style. But I think this new judge saw how the families, the media, the – just the case in general, the public, saw how the information was rolling out and said, okay, we need a new change of course.
20/20
'The King Road Killings': 911 Call Released
We need one that will still uphold Brian Koberger's constitutional rights to a fair and impartial trial, but also inform those who are most interested in this case and have a vested interest in the facts as they come out. And so I think that's the balance that this new judge is trying to strike.
20/20
'The King Road Killings': 911 Call Released
So... Again, I'm not a defense attorney on this team, but I can only theorize why. One main reason could be they didn't have the information. Maybe Brian Koberger wasn't evaluated. Maybe the report by whoever evaluated him wasn't done. When you evaluate an individual,
20/20
'The King Road Killings': 911 Call Released
especially one who's incarcerated, you've got to cut through the red tape of, hey, I need an expert to go and sit down and talk with my client. So it's a red tape of getting that done. The other thing too could just be strategy. Maybe they think this is one of their stronger arguments and they wanted to kind of leave it on the last doorstep of this case, kind of like the final push.
20/20
'The King Road Killings': 911 Call Released
In 2002, there was a Supreme Court case called Atkins v. Virginia. And in that Supreme Court case, it basically said, The United States of America cannot put people who have severe disability to death. So that just became the law of the land. And that snowballed into making different arguments, a lot of them which we are seeing here now. There are five main arguments in this 28-page motion.
20/20
'The King Road Killings': 911 Call Released
The first three, I would say, could be categorized as he has ASD. And because of that, he is not culpable enough, like not guilty enough to be executed. Executing people with ASD falls in line with that kind of idea that we can't do this. The Supreme Court says we can't do it. The fourth argument is a very unique one. I haven't seen it. Very interesting. But everyone has the right in –
20/20
'The King Road Killings': 911 Call Released
What's going to be a bifurcated case, and what I mean by bifurcated is first the jury will decide guilt or innocence, and then the jury will decide the sentencing as to whether or not he gets put to death. I don't think Brian Kovrig is going to testify at the guilt phase to decide whether or not he's guilty or not. Maybe he will. But if I'm a betting man, I say no.
20/20
'The King Road Killings': 911 Call Released
But if he's found guilty, I definitely think it would behoove him or be in his interest to testify at that sentencing phase. And that's what the defense is talking about here. That if he was to take that opportunity to testify in that sentencing phase, to fight for his life, his mannerisms and the way his affect is, people will look at him and be like, that looks like a cold-blooded killer.
20/20
'The King Road Killings': 911 Call Released
that's gonna take away his right to be able to defend himself and that's why the death penalty should not be there. I think they bolster that argument in the fifth and final argument of this motion of saying, look, the media is already doing it. We're looking at him in these pictures and we're looking at social media and the way people describe him as this menacing figure, it's already happening.
20/20
'The King Road Killings': 911 Call Released
And that's going to taint the jury, that's gonna happen again when he testifies in the sentencing phase. And because of that, ASD should rule out the death penalty.
20/20
'The King Road Killings': 911 Call Released
No, I think what it is, is you have a public defender, a person who went to law school and chose to pick a profession where they feel they are representing individuals that but for them would not have the form of representation that Ann Taylor is giving, which I still think is amazing. And they're trying to save someone's life.
20/20
'The King Road Killings': 911 Call Released
And so if you were in the mindset of I am doing the righteous work of a public defender and trying to save someone's life. you throw everything at the wall to try to do so. And I think that's what Ann Taylor is doing. And I think, say what you want about Brian Koberger, but if you were sitting in his seat, you would want a person to throw everything at the wall to save your life.