LIVE: Court Hearing for Tyler Robinson, Man Accused of Killing Charlie Kirk | N18G

[00:00:00]We were again it was media reports where they were saying that they were misrepresenting the actual report that's in the record and you know the that it did not match. That's not what the report said. Again, I'm not getting into whether it's exculpatory or inculpatory.

[00:00:18]What the report said was it uh that the testing did not did not identify or exclude the the bullet fragment as coming from the rifle and therefore was inconclusive. And so we got those reports and in those other circumstances we had persons concerned about um what they perceived as misinformation.

[00:00:44]And my conclusion was we're not going to go out there and talk about those things because quite frankly, you know, I didn't know whether or not how the defense would use that information. And so I I I I decided, no, we're not going to comment on that kind of stuff.

[00:01:01]>> Okay. So, there have been other circumstances where you said, "Nope, we're not we're not going to talk to the media about X, Y, and Z."

[00:01:06]>> That's right.

[00:01:07]>> But in this case, you made an analysis and said, "Yes, we're going to talk to the media in this case because of how important the issue is." Yes.

[00:01:20]>> Nothing else.

[00:01:21]>> All right, Mr. Novak.

[00:01:27]>> Uh, Mr. Gray, I don't know anything about the Corey Richens case, so let me just ask you a couple questions.

[00:01:32]>> Sure.

[00:01:32]>> You had watched a some sort of a media interview that you say that um Ms. Richen's council conducted before trial.

[00:01:42]Yes.

[00:01:42]>> And um did you think that was appropriate under the rules?

[00:01:46]>> I think they I I think they went beyond what they could do, but um I think it is appropriate under rule 3.6 under the right circumstances like this case.

[00:01:57]>> So it really depends what it is you say that puts you close to the line or over the line set by rule three 3.6 in the court.

[00:02:08]>> Sure. I mean you have to be careful in what you say. I mean, we do our very best to be careful.

[00:02:13]>> And were you was your office prosecuting that case?

[00:02:16]>> No.

[00:02:17]>> Did the um county attorney um file anything with the court concerning those public statements to your knowledge?

[00:02:28]>> Um I'm not aware of that. I I talked with her. She was the one that uh advised me of that and and that's why I became aware of it. But I I don't know whether or not they decided to or not.

[00:02:41]There are many reasons why you may or may not file something.

[00:02:45]>> I know that she wasn't happy with it.

[00:02:47]>> When you say she, you're referring to the county attorney >> Olsson from Summit County.

[00:02:52]>> I see. And you don't know if if uh Summit County sought any judicial review of those extrajudicial statements?

[00:02:59]>> I do not know. Understood.

[00:03:11]Did >> Thank you. I don't have any further questions.

[00:03:17]>> Thank you. Anything further for this witness?

[00:03:20]>> No, >> Mr. Gray. Thank you.

[00:03:24]>> All right, Mr. Novak.

[00:03:26]>> No further witness.

[00:03:28]>> All right. To the state.

[00:03:32]>> No witnesses, your honor.

[00:03:35]All right, we can proceed to I'll I'll defer to the parties. Mr. Novak, you have about eight minutes for argument.

[00:03:43]Uh the state has a little bit more than that. So, as the parties wish to proceed, >> I'm prepared to do it now if the court wants to continue.

[00:03:56]Yes, my intent is uh we'll we'll do that then that will conclude this particular um as it relates to the OC and then we'll turn to the motion in lemonade as it relates to hearsay uh giving the parties time to argue that as the court has um reviewed in detail the motions uh which were detailed and the court appreciates that that so we'll have a brief oral argument on that and then we'll go to the last issue that Mr. Novak brought up and and address that as well. All right, turning to Mr. Novak.

[00:04:46]Thank you, your honor. And I want to um be careful to be clear at least from our perspective that there are two issues here.

[00:04:59]One is whether the evidence supports a finding um a violation of the court order by Mr. Ballard andor Mr. And then the question if the court does make that finding is what are the consequences.

[00:05:26]Um, so I'm going to really deal with the first part first and the second part second, unless the court wants to bifrocate it and issue its findings on whether or not there's been a violation in which case if the court finds that there has been a violation of the court order, then we can address the remedies.

[00:05:51]>> We can address that today. Thank you. in regards to your argument and what you are advocating for.

[00:05:58]>> So, the court would like to hear all of it at once. That's what I'm hear. Okay.

[00:06:01]So, first of all, um the court's order concluding that there was a preliminary finding that that that we had made a preliminary showing identifies three elements to um the contempt and Mr. Ballard essentially admitted to the first two elements. He was aware of the orders and there was no reason why he was unable to comply with them.

[00:06:37]So the third element is whether the order was violated.

[00:06:41]Now, I acknowledge that the court's order uses the word intentional, but I would ask the court to look again at our pleadings concerning whether intentionality is an element of the offense.

[00:07:02]And the reason why that's important is because many courts, as I cited in the brief, so I'm not going to cite all those cases again, say that where the order is in the nature of an injunction, the court doesn't need to make a finding of intent.

[00:07:25]Every order is different. This is an order in joining conduct. And so if somebody violates knows of and has the ability to comply with an order and joining conduct and the order is violated, there is no need to show intent.

[00:07:48]However, what I will argue to the court is whether or not the court is going to um add that element of intentionality.

[00:07:59]I think the evidence is clear that the violation was intentional or it was so reckless and I will use the legal phrase extreme recklessness that there's a very fair inference of intentionality and I don't say this lightly and this is one of those situations where lawyers and judicial officers sometimes cringe, but sometimes the cover up is worse than the original conduct. I know we've all heard that before and we all know what that means.

[00:08:47]But I find no credibility in Mr. Ballard's sworn testimony that he only intended to communicate with the media generally about bullet fragment analysis.

[00:09:07]He used phrases like this bullet.

[00:09:12]He's responding to misconceptions in the media about what the defense said in its filing.

[00:09:25]He's talking about the bullet fragment analysis in this case.

[00:09:35]And I have trouble accepting Mr. Ballard's explanation that he really never said anything about the bullet fragment analysis in this case especially I mean the most clear example frankly is his statement in um exhibit 7 which is his statement on Fox and Friends because he talks about this bullet this bullet the bullet the bullet he's not talking in general terms he's not talking in generic terms he's not a ballistics expert. Although in some of these exhibits you see that the journalists interviewed ballistics experts.

[00:10:19]Mr. Ballard is trying to influence public perception about examinations in this case.

[00:10:31]And I think to say, "Oh, I'm not talking about this case. I'm only talking about ballistics generally," is belied by the context in which the statements were made, the motive that Mr. Ballard and Mr. Gray admit they had in engaging in extrajudicial statements, and the content of those statements.

[00:10:58]Mr. Ballard also acknowledges that he made statements about future examinations and his expectations about what future FBI and ATF reports would say in this case.

[00:11:15]So even if Mr. Ballard has this what he thinks is a safe harbor. Oh, I was just talking about bullet fragment analysis generally. He is then saying, "Oh, and we'll have some more reports in this case soon that will clarify this." So, he's actually talking about what he believes forensic experts will do and say in the future, which I think not only violates the rule in and of itself, but shows the overall um problem with his excuse.

[00:11:52]The reason why we asked Mr. Ballard and Mr. Gray if you can turn this around and say since there's been all this negative media coverage, can I go on a public relations tour and state in my opinion Mr. Robinson is innocent extrajudicially beyond the fact that he has a constitutional right to the presumption of innocence which the prosecution has an obligation to embrace and uphold is because if I can do that in response to media coverage then this court's order and the rule are completely swallowed In other words, in a case where there is media coverage, which is not the result of interviews by the defense, I can go do those things. Then this court's order has very very little meaning. And rule.3 3.6 has very little meaning.

[00:13:01]And that that just can't be the way it works.

[00:13:07]So at a minimum their conduct was extremely reckless and that in the law is the same as intent. But again I don't believe that that's what this court has to make a finding in order to um confirm the court's initial preliminary finding of a violation of this court's rules.

[00:13:36]It's interesting, your honor, that the state's attorneys have already decided that the recent media coverage about the bullet fragment analysis has prejudiced their case because they've been saying in this courtroom and in pleadings that we can't prove that any of the media coverage in this case has prejudiced Mr. Robinson.

[00:14:05]They've been saying, "Pick a better jury. Have a better questionnaire.

[00:14:10]Maybe there's a venue issue, more prompter challenges, individualized or dire." And this court has said the same thing. But when it suits them, they say they've already determined that their case is prejudiced.

[00:14:28]And so they need to correct the perception in the jury pool so that they can have a right to a fair trial.

[00:14:41]And it's it's offensive to me, but it's deeply ironic that when it suits the state, we can't prove prejudice. And when it suits the state, they've already concluded that there's prejudice.

[00:14:56]Without even taking a moment to say to this court, we're very concerned about this. We weren't concerned before about all the negative media coverage about Mr. Robinson and his life, but now we're concerned about the media coverage concerning this piece. And so, judge, what are we going to do about this?

[00:15:16]I am confident that if the court received an inquiry from council that said there's an urgent matter here. We'd really like to do to have a conversation with the court about what is acceptable under this court's order. This court would have convened a hearing. This court convened, as I recall, a conference call on like six hours notice back in September when the court wanted to manage this case quickly because things were happening and the court staff got everybody on the phone and the court made some decisions and then those decisions were docketed.

[00:15:51]There is nothing that stopped the state from asking this court to either clarify its order or um approve some press release even if it was over the defense's objection. That would be consistent with rule 6 and the court's orders and rule 3.8.

[00:16:24]So now in my remaining time, I'm going to go to the remedies. I think that the number one remedy in this case, your honor, is for this court to preclude the state from seeking the death penalty against Mr. Robinson.

[00:16:40]The court said at an earlier time that if the court found there were violations of its orders that it could order somebody to do continuing education. It could impose fines. It could do all kinds of things under civil remedies. That is true. But what we are talking about is the state without any guidance from this court going out and trying to influence the public perception of this case.

[00:17:11]So that when people come into this courtroom and they may be jurors in this case, they have been exposed to the states extrajudicial statements about what the evidence will or will not show before the first witnesses ever sworn to testify in the trial, before any exhibits are ever received into evidence.

[00:17:39]And as Mr. Ballard said, "The media spin will never change. The media will do whatever the media wants to do." And I and I want I'm going to return to that as well.

[00:17:49]What was going on here was an attempt to influence the jury pool because that's the only thing that cures the prejudice is correcting what the state is concerned are the perceptions of potential jurors.

[00:18:04]And so that is the remedy that is commensurate with the extreme recklessness and the motives of the state. We asked this court to compel some discovery, but Mr. Ballard was quite frank. We need to change public perception of what the evidence is or might be before we ever pick a jury.

[00:18:30]There are other lesser remedies, but we've already been through proceedings concerning how to remedy the pre-trial publicity, the electronic publication of these proceedings. And the court has already said in other contexts, we're going to have a more thorough jury questionnaire. We're going to have more vorire. We're going to have individualized verdire. We're going to have venue issues. I'm not saying that the court has promised to change a venue.

[00:19:02]That's not what I'm saying. But the court this morning said there may be an appropriate venue issue here. So there's no additional consequence for the state's misconduct here. We're already at the point where we've got to pick a a more um we have to much much more carefully pick a jury because of what has happened in this case over the last nine months. And now the state has compounded it horribly.

[00:19:33]We can't wait until we start picking the jury to find out what harm has been caused.

[00:19:43]So, we think that's the first remedy. The others are the remedies uh that the court has already said are probably necessary in this case.

[00:19:57]I don't want to be flippant, but I don't really care whether Mr. Ballard attends a continuing education program or not.

[00:20:02]All I care about is my client's constitutional rights and referring Mr. Ballard or Mr. Gray to the state bar as Mr. McBride referenced.

[00:20:14]I'm not saying he suggested that that the argument on the motion doesn't protect Mr. Robinson's constitutional rights.

[00:20:25]Mr. Levit's sanctions weren't affirmed by the Supreme Court until years after that case ended. That doesn't protect Mr. Robinson's rights in this case.

[00:20:38]I just want to say one other thing, your honor.

[00:20:41]One of the reasons why extrajudicial statements are strictly controlled is because lawyers can't control the media.

[00:20:50]We can send them an email. We can make statements on the phone. We can sit for a 15-minute interview. Journalists will cut and paste and shape articles to fit their purposes.

[00:21:07]And that's why it's extremely reckless to do what Mr. Ballard and Mr. Gray did.

[00:21:17]If they had put out a press release, especially one approved by this court that said, "The state stands by the allegations in the information.

[00:21:29]Evidence will be presented at trial.

[00:21:33]Mr. Robinson has the right to the presumption of innocence until the trial has concluded, we wouldn't have this problem at all because the media, all they could do is cut and paste pieces of a press release that would be totally in conformity with this court's order and rules 3.6 and 3.8. And so they let Fox and TMZ and other media entities cut and paste whatever was um important to them, but that doesn't relieve them of the responsibility. And it also does not undermine what I think this court unfortunately needs to find to be true, which is that Mr. Ballard's attempt to say he wasn't talking about the ballistic testing in this case is simply lacking in credibility.

[00:22:33]Thank you.

[00:22:34]>> And council, I do have a question uh for you. So, hypothetically, if the court finds a violation, do the interests of justice require proportionate sanction?

[00:22:50]>> Yes. And I think in light of the remedies that this court has already said are going to be necessary in this case, the sanction that I've suggested is is proportionate and it's in the interest of justice.

[00:23:07]>> Thank you, Mr. Novak.

[00:23:09]>> Thank you.

[00:23:10]>> Turning to the state.

[00:23:23]I'll start with the with defense council's assertion about credibility of Mr. Ballard.

[00:23:31]Um I I I view the evidence completely different. It seems to me that Mr. Ballard was extremely credible. his um statements that were reported through several media entities all said the same thing which were I'm not going to talk about specifics of this case but in general when you have an inconclusive report it means this did he say the bullet yeah because he was referring to the bullet referenced in the previous sentence and that was consistent throughout all of the media that we looked at and the Fox News story when you see that it you can tell it cut off the last word when it begins his his next sentence that's how quickly it starts And so his and that's consistent his his testimony that he was referring to a general uh inconclusive result is consistent throughout all media entities here.

[00:24:21]Um but the reality is doesn't matter anyway because rule 3.6b 6B says parties attorneys can reference matters of in the public record and this report was in fact in the public record by this time because defense council attached it to one of their pleadings. The court ordered that it would be public and and it was public. Um what Mr. Ballard's efforts uh at being general rather than specific show is a measured and thoughtful effort to correct the unfair prejudice that faced his client, not an effort to prejudice defense or the defendant. That shows a measured and thoughtful deliberate approach, not an intent to violate the court's order.

[00:25:12]Um, the statement about what future FBI reports would say, that's misleading.

[00:25:16]That is not what the testimony was. Mr. Ballard testified. I talked about what the future FBI and ATF reports may say and that was in reference to the motion to continue the preliminary hearing that talked about the lack of discovery of underlying data supporting the scientific reports.

[00:25:36]That's what the testimony was. Despite what Mr. Novak may want to say here, we're we're limited to what the testimony is here. And that's what the testimony was.

[00:25:46]um the hypothetical where defense says, "Well, taking taking um the state's position at face value, then defense council could get up and say, I believe my client's innocent."

[00:25:57]That's comparing two completely different things. Rule 3.6, the comment to rule 3.6 says attorneys should not be saying they believe someone is guilty or innocent. Right?

[00:26:10]That's not what Mr. Balor said. He didn't come up and say, "I believe defendant is is guilty." That's not what he said.

[00:26:16]Um, and with regard to uh the prejudice to the case, right, um, Mr. Novak talked about, well, it's it's it's not it's not consistent that when it's the defendant being prejudiced, then uh, you know, we can handle all this through viire and expanded veneer and all those things, but when it's the state being prejudiced, you can't. You have to actually correct the record. Well, there's a difference here. Well, the first question is, are they being prejudiced unduly under 3.6? That's the language. Undo prejudice. Well, is it undue prejudice when when when the evidence and we all know this, everyone in this courtroom knows that that media was misrepresenting the evidence here.

[00:27:12]That's what makes the prejudice undo, right? If there are false, if there's false a false narrative that's being pushed, that's undue prejudice under 3.6, that's when you step in and correct it. Now, if and that's that's why 3 point that's why the comment to 3.5 or 3.6 comment five to rule 3.6 six is helpful is because there are certain things that can create undue prejudice such as an an attorney's opinion on guilt. So if if Mr. Gray had stood up at the initial press conference in this case and said trust me I am your elected county attorney. I believe the defendant is guilty to correct that undue prejudice. Yes, defense council could have got up and said members of the public it doesn't matter what the county attorney said what or what the county attorney believes. What matters is the presumption of innocence and we've got to wait for a jury and all of those things, right? But that would be undue prejudice, right? Not the fact that he's been charged with the crime, not that there's a an affidavit of probable cause and the contents of that. Not that there's pleadings in the case and the contents of those of those pleadings.

[00:28:22]And that brings me to the point of this is why it's so important that that attorneys um satisfy the duty of cander to the court is because when an attorney files something with the court, we all know an attorney has a duty to this court to have cander and to be honest in what they represent. Why? Because then when the media reports on it, there's some assurance that there's some validity to those to those statements.

[00:28:48]That's why some of this what we're dealing with is so upsetting is because it generates from a pleading the claims um that makes that frankly was misleading I think and obviously the media all thought it meant what they said it meant.

[00:29:04]All right with that um let me turn to I think what really is the crux of the issue here.

[00:29:13]You got to start with the standard. The standard of proof is clear and convincing evidence.

[00:29:19]In order to find Mr. Ballard or Mr. Gray in contempt, the court has to find by clear and convincing evidence that Jeff Gray andor Chris Ballard intentionally violated the court order.

[00:29:31]Now, defense council has taken issue with that intentionally language. Um, but the the issue they take generally comes from a case and a line of cases that predates the von Hackey v. Thomas case, which is a Utah Supreme Court 1988 case, which uh uh promulgates the intentional standard. Um that same standard was reiterated in Sumar v.

[00:29:54]Sumner, a 2012 Utah appellet court case.

[00:29:57]These are cited in the state's brief, I should mention, as well as the Kohler v.

[00:30:02]Allen 2020 Utah appellet court case.

[00:30:06]That's the standard. Proof by clear and convincing evidence that these attorneys intentionally violated your order.

[00:30:17]In this circumstance, uh the defense can't prove and I don't think the court can find the actis rees much less the men's rhea which is much more difficult to prove. When you look at the actis rees, these statements did not violate the order which explicitly refers to rule 3.6. That last line of the order says right this state this order does not preclude the attorneys from speaking to the media. C rule 3.6B right 3.6B allows attorneys to talk about material in the public record and 3.6 C which allows attorney to correct um extrajudicial statements that prejudice their client's rights.

[00:31:06]It did not violate the rule because um the ref the reference to the test uh the report from the ATF was a matter of public record docket 284 which is specifically allowed by the rule. But Mr. Ballard in demonstrating his measured response took an additional step to avoid potentially prejudicing prejudicing the defendants's rights. Rather than saying, "I'm going to read to you the report media that talks about this case, the bullet in this case, and the results."

[00:31:41]I'm going to read to you the report that says not only the part that the defense included in their pleading that they could not tie the bullet that they could not identify that bullet as having been fired from that gun, but they could not exclude it. And not only that, but they could tell this is a 30 caliber class round. Mr. Ballard did not do that. He could have under under uh 3.6B, but he didn't. Why didn't he? because he was taking a measured and deliberate approach to avoid violating this court's order, to avoid violating his ethical duties.

[00:32:20]Under 3.6 C, he was correcting an unduly unduly prejuditial media to protect his client's right. Why is it unduly prejuditial? Because it was false.

[00:32:31]Right? This narrative that the bullet didn't match was false. Everybody in this courtroom knows that that narrative was false and he was correcting that narrative. It's hard for me to find to think of a circumstance where 3.6 C would be more directly at issue. We have here perhaps the most high-profile murder case in the world. C certainly one of the most high-profile murder cases in Utah's history that has generated extraordinary um attention from the media and from the public. We have here, not only that, we have here reports that are claiming the that are misrepresenting the evidence and claiming that it completely exonerates the defendant. And those reports are false. Right? Hard to see a circumstance where 3.6 C would not be more at issue.

[00:33:26]So your honor, I don't think the court can even find that the actis ray is here. The actis ray is here. I don't think the court can find that uh the statements that were made by Mr. Ballard violated 3.6B or 3.6 C and therefore violated the court's order, much less that Mr. Ballard and Mr. Gray intended to violate the court's order. When it comes to the the men's rhea, the intent, you can see by the statements, by the by the testimony that both Mr. Ballard and Mr. Gray were deliberate. They talked about rule 3.6. They were aware of 3.6, 3.6 C. They're aware of um other cases where corrections of the record had had been brought up, including by lead defense council here, where uh she corrected uh the public statements and said the prosecutor should too. Um, and they made measured and they made measured statements as or they Mr. Ballard made measured statements to the media that were deliberate and did not go beyond what the rule allowed. He did not say I believe he's guilty. He did not say like Mr. Levit did, I believe um, my witness, we believe the witness.

[00:34:32]He did not refer to evidence that would not be admissible. Referred to evidence that was in the public record.

[00:34:50]Um, finally, your honor, I think, uh, in conclusion, the defense has not shown, and the court cannot find proof by clear and convincing evidence that Jeff Gray or Chris Ballard intentionally violated the court order or violated the court order at all. Um, as I mentioned before, we have taken um, we've taken this matter seriously. Um, at the very outset, you can see that the state the day after the day the defendant was arrested was sending out letters to the media or excuse me, to police chiefs and the law enforcement agencies saying, "Be aware of these rules. If you talk to the media, you have to abide by these rules. We suggest you don't talk to the media. If you have questions, talk to us." You can see that we've taken this very seriously from the outset. We've taken it very seriously up until this date. Um, we have a duty uh to justice and to our client to make sure that our client gets a fair trial and that the truth is out there. Um, and uh and this this of course this issue has brought the the issue front and center to us and we've discussed it. We've discussed um how we can be absolutely certain that we do not cross the the line. We don't want to cross the line.

[00:36:06]We want to stay as far away from that as possible. We believe we want the state, we want Mr. Kirk, we want his family, we want everyone, including the defendant, to receive a fair trial. We don't want to do this again. We want to do this right the first time. We believe we've done right this far and we will uh exercise extreme care to continue to do right here even if that means revising some of our uh our protocols and interacting with the media.

[00:36:31]>> Thank you Mr. McBride. I do have one question for you with reference to the final page of exhibit three and in the context of correcting the record and evaluating undue prejudice. How does the state contend that Mr. Ballard's statement, and I'm quoting, "He is presumed innocent. The ultimate decision will be up to the jury. We believe we will be able to overcome his presumption of innocence."

[00:36:58]Thank you. Um, yes, first off, um, we don't know the exact order in which the statement was uh, received. Um, but I think there's two things that are important here. One is the reference to he is presumed innocence, right? That shows that Mr. Ballard was intentional about about um making that clear, right?

[00:37:21]The jury will find guilt. That last statement, we believe he uh he we will be able to overcome the presumption of innocence. This is a reaffirmation of the state's certification under rule 11 that we have the evidence to proceed with the case.

[00:37:39]In good faith, we believe we have the evidence to proceed with the case. Every attorney that files a pleading in this courtroom certifies that they believe the matters contained in that pleading are supported by evidence. And that's what this is. It's a reertification. We have the we believe we have the evidence to prove this case. All of this all of these media reports do not undermine that uh good faith certification that we made when we filed the case. And I think this is where it's it's helpful to look at We cited a case Kansas um state vright 583 Pacific 3 174 where the prosecutor in that case in jury selection. So, this is a much more direct I mean, this is right to the jury pool who's going to try the case, right?

[00:38:40]In that case, the prosecutor says to them, see if I can find this quote.

[00:38:55]Oh, I've got the wrong ple.

[00:39:00]Thank you for asking that question. I I was I meant to cover this in state v.

[00:39:05]Wright 583 Pacific 3rd 174 on 194. This is a Kansas Supreme Court case from 2026.

[00:39:13]The uh county attorney speaking to the veneer the jury the jury panel for jury selection says this. So as the county attorney my job is to prosecute cases that are brought brought to my office that I feel we can prove beyond a reasonable doubt.

[00:39:31]Then he continued, "That is the burden that the state willingly accepts when it filed charges and brings cases forward."

[00:39:37]So the state understands this burden and intends to prove that through the course of evidence this week and the Supreme Court um ruled as follows. Rather than an improper personal opinion on Wright's guilt, the prosecutor's comment here simply explained the prosecutor's role in the proceedings and reiterated the state's burden of proving guilt beyond a reasonable doubt. A prosecutor in a criminal case cannot ethically prosecute a charge that the prosecutor knows is unsupported by the evidence.

[00:40:06]That's that's what was happening here, your honor, is saying Mr. Ballard testified. This answer was in response to the question, do you still have a case? Right? Does this does your case fall apart here with the evidence? And his opinion was not, I believe he's guilty. It was an opinion directly tied to the evidence. We believe we have the evidence to prove this case and it's nothing more than a certification that all attorneys make when they make filings and that the county attorney made when filing the information in this case. It's much less prejuditial than anything uh the attorney said in state be right because it's directed to the media rather than the jury veneer. And it's not prejuditial anyway. I don't think I don't think anyone would be surprised to learn that the prosecutors in this case believe they're going to be able to prove it. In fact, I think if the if the public thought we were prosecuting cases we did not believe we could prove um that would be frankly shocking um because uh wouldn't make any sense. I think everybody knows that we believe we can prove this case and we intend to do so through the evidence, not based on personal opinions um that are endowed on us through our authority as prosecutors, which seems to be what Levit claimed in that case.

[00:41:24]>> Thank you, Mr. McBride.

[00:41:27]>> All right.

[00:41:29]>> Can I beg the court's indulgence for 90 seconds?

[00:41:33]>> I I will give you 90 seconds, Mr. Novak.

[00:41:36]Thank you, your honor. I think we all want the court to be um clear on the law with respect to the third element in intentionality. And Mr. McBride is not correct when he says that all of the cases that we cite for the proposition that violation of an order in joining conduct requires proof of intent predate von Hake. That is not true. And so what I want to just remind the court is that in 2019 the United States Supreme Court said, and this is at the bottom of page 10 of our reply, the United States Supreme Court said, quote, "We have explained before that a party's subjective belief that she was complying with an order ordinarily will not insulate her from civil contempt if that belief was object objectively unreasonable. That's Tagert v.

[00:42:42]Laorenzan, a 2019 Supreme Court case.

[00:42:46]And in the same year that von Hake was published, the United States District Court for the District of Utah said that civil contempt for violation of a court order need not be willful. And now I'm going to quote from the District of Utah opinion. In order for a party to be cited for civil contempt, a court must find that the party violated a specific and definite court order and that the party had knowledge of the order sufficient to put him on notice of the prescribed conduct.

[00:43:24]Nevertheless, the disobedience in a civil contempt need not be willful because the purpose of civil contempt sanctions is remedial.

[00:43:37]That's in Skinner, a 1988 published decision in um bankruptcy reports, district of Utah.

[00:43:47]>> Thank you, Mr. Nag.

[00:43:50]And I have nothing further unless the court wanted to inquire of me concerning anything Mr. um McBride said.

[00:43:59]>> No. Thank you.

[00:44:00]>> Thank you.

[00:44:01]>> All right. We're switching gears and going to the motion and lemonade uh to exclude hearsay statements as as mentioned in the um briefing. Again, I will note that uh the court has examined those briefings in detail and so uh the court wishes for limited argument as the briefing uh provides a lot of guidance from both sides on on the the party's positions. And so if if the parties would like to take up to 15 minutes to argue that uh you certainly can and then we'll go to the final issue that Mr. Novak brought up in the beginning and uh as this is defense's motion we'll turn to defense Mr. Bert.

[00:45:04]>> Morning your honor.

[00:45:05]>> Good morning. Well afternoon.

[00:45:07]>> Afternoon I guess.

[00:45:10]Judge, as the court knows, and as you've just noted, there's been extensive briefing here. I'm not going to get into all the technical arguments, and there are many here. Uh, but the briefing outlines six different uh basis for the court to find here that the uh use of hearsay evidence in this particular preliminary hearing in this death penalty case is unconstitutional under the federal constitution.

[00:45:39]state constitution has separate rules as we outline in the in the brief and I know the court's familiar with those but the constitutional issues raised under the federal constitution are unique for the most part they have not been addressed by any Utah court uh with one exception and that's the confrontation clause objection that is addressed in Timberman uh but as to our other arguments procedural due process equal protection.

[00:46:10]Uh the sixth amendment right to council.

[00:46:14]Those issues have not been addressed.

[00:46:16]And there's of course one issue, separation of powers, that's a state law issue. That has also not been addressed by any Utah court. But I wanted to take just a few minutes for the court if I could to outline why this motion is important in this particular case. I don't think that's really outlined in the motion, but I think it's important for the court to consider. And I know the court has not reviewed the exhibits that have been submitted to the defense from the prosecution in terms of what they're going to present at the preliminary hearing, but I'll represent to the court that for the most part the state, and I'm sure they'll correct me if I'm if I'm wrong on this, intends to rely almost exclusively on hearsay evidence at this preliminary hearing to make out the elements of the charges and allegations and especially the death penalty eligible allegations against uh Mr. Robinson. And probably most uh problematic from our standpoint is that the the central witness who's going to be presented against Mr. Robinson is a witness who the prosecution and the federal government have uh given promises of immunity to.

[00:47:35]And in lie of putting that witness on the stand and subjecting him to cross-examination, they met with this witness outside the presence of the defense, asked a series of leading questions that the witness was asked to agree to uh videotaped it and the state proposes to introduce that into evidence. In addition, a prominent feature of the evidence at the prelim will be a number of forensic reports by federal and possibly some state um law enforcement forensic examination examiners. And those reports for the most part are simply conclusory opinions about certain findings that were made. There is no indication on the face of the report as to the methodology that was used or the reliability of those methods. The reports are simply going to present the court with conclusions and then the state is going to rely on uh section 1102 of the rules of evidence to urge this court that those statements by law are reliable evidence.

[00:48:50]And that's the gist of the problem here because uh 1102 in combination with article 1 section 12 essentially removes what was supposed to be this court's function at the preliminary hearing which is to assess the reliability and the credibility of the evidence. And the intent of article one section 12 the court goes back into the leg legislative history was specifically to remove the court's discretion to decide whether certain evidence was reliable and that's where the separation of power uh issue comes into play. Now that we say violates the federal constitution in a number of respects and also the state uh separation of powers provision but I I I wanted to point out to the court that the state's position on this issue is really contrary to the position they've taken on almost every other procedural issue that has been raised in this case.

[00:49:52]Uh and the prime example is the one just presented to the court in connection with the OC. One of the things that Mr. McBride said was, "We have a duty to make sure the truth gets out there."

[00:50:06]And similarly, the defense has a duty to make sure the defense the truth gets out there. And how they do that in this system traditionally and historically has been through the use of cross-examination, confronting adverse witnesses. Another example of the inconsistency that's being urged upon the court uh in the state's opposition to this motion. The court will recall the state's position on our motion to exclude cameras from the courtroom.

[00:50:39]And Mr. Grunander began his argument to the court with this uh statement. Your honor, mischief lurks in the dark or in secret, or that's at least how many people view the workings of government, even the courts. And while this is primarily the media's fight here, we do not represent the media. We strongly support open and transparent proceedings in this case so that the public will trust the process here. There are conspiracy theories that abound. There are questions being raised and the best antidote for falsehood is the truth, is accuracy, is the actual real proceedings and that's at page 214 of the hearing on April 14th.

[00:51:29]And similarly here, your honor, the uh defense's right to crossexamine and confront adverse witnesses, immunized witnesses in this case. who are going to provide the bulk of the evidence against Mr. uh Robinson.

[00:51:47]The purpose of our doing so is to get at the truth to lead to transparency.

[00:51:56]And one of the articles that the um state assited to the court as indicative of a a an analysis that's relevant to this issue is an article by a former district attorney who um this is the Bowden article that the state sites and one of the things that Mr. Bowden, former prosecutor, says in his article that the state cites is he he's addressing the issue why it's important to have adversary proceedings at pre-trial proceedings such as preliminary hearings. And he says, this is at page 1148 of his article, a system without adjudication lacks transparency.

[00:52:46]The public normally has no way of learning why prosecutors make the offers they do or why certain cases reach certain outcomes. The opicity prevents the public from understanding how criminal courts function. It frustrates journalists and scholars who wish to study criminal courts. And it distorts democratic feedback as voters are left with little idea of how these institutions work. and the court in its rulings on public access and even this morning uh you have also emphasized transparency as a goal of the criminal justice system. So this motion asked the court um how can we further transparency by relying exclusively or almost exclusively in this case on hearsay evidence that implicates Mr. Robinson in a death penalty case. And we say to the court that if the court looks carefully at the cases we've cited cited uh on the federal constitutionality of this practice, the court should uh determine that it's simply unfair to proceed on the basis of hearsay a case where Mr. Robinson's life is at stake. The federal constitution requires that people who are facing parole revocations have the right to confront and cross-examine witnesses. The US Supreme Court has determined that people facing probation violations have a right to confront and cross-examine witnesses.

[00:54:22]The state supreme court has determined that people at suppression hearings have the right to confront and cross-examine witnesses. The state supreme court has determined that people who face sentencing have a right to confront and cross-examine witnesses. And we say that due process, equal protection, and the other provisions we cite all point in the same direction, which is that the court should not should not allow the use of hearsay to make the determination in this case that Mr. Robinson should or should not be bound over for trial. and I'll be glad to answer any questions the court may have. I know there u the briefing is fairly extensive. So if the court does have questions, I'm prepared to address them.

[00:55:09]>> I do I I have one question. I'll be asking both sides this question.

[00:55:13]>> Sure.

[00:55:13]>> Uh and the court previously indicated and you noted it that it wasn't reviewing the exhibits ahead of the preliminary hearing in order to go in with an open mind and and weigh it accordingly. Is it your request that the court review the proposed states exhibits that relate to this motion prior to the preliminary hearing?

[00:55:34]>> Your honor, I think it would be helpful to the court to do that because I think the court would then have a better context of just how central uh hearsay is going to play in this case. A and also uh especially in regard to the crucial witness, the immunized witness, how the state structured that hearsay.

[00:55:52]And I think if the court did that, it would it would clearly see the importance of of uh cross-examination and confrontation. So I would have no objection to and I would urge the court to do that.

[00:56:03]>> And do you have those exhibits those exhibit numbers and and if you need time to confer with your team as I go to the other side, I I don't expect you to just come off with those numbers off the top of your head.

[00:56:15]>> Sure. I know the court uh the state provided those to the court. I think there was some email traffic about how the court then given back to the clerk, but I think they're still in the clerk's possession. The state will correct me if I'm wrong on that, right? But they're the state's exhibits. So, >> no, no, I you're you're right. I I know, but I'm wondering if there's specific ones that you want to identify that relate directly to your motion that you wish the court to review.

[00:56:37]>> Yeah, your honor, if I could have a minute, I'll identify what those exhibit numbers are.

[00:56:41]>> All right. So, I'll turn to the state and again, I'm not trying to put you on the spot there.

[00:56:46]>> All right, Mr. Ballard.

[00:56:53]>> Thank you, your honor. Um, the Utah Supreme Court has already rejected the defendant's argument in State versus Timberman. This court can't overrule the Supreme Court. And I think it's fundamental or it's important to think about the fundamental reason why this the court held in Timberman that the sixth amendment right to confrontation does not apply at preliminary hearings. And it's because of the very very low burden and low standard that the state has to meet at a preliminary hearing. All we have to show is probable cause. This the magistrate at a preliminary hearing isn't making any factual findings. Um the the issue is just whether there is a reasonable a reasonable probability of that that an offense was committed and that the defendant committed it. And in making that decision, as your honor well knows, uh you have to draw all of the inferences in favor of the state. You can't weigh conflicting evidence.

[00:58:00]um you can make only very very limited credibility determinations.

[00:58:06]So even if the defense could impeach a witness to some degree through cross-examination like the fact that this witness has been granted immunity, it doesn't matter at the preliminary hearing because the magistrate's duty bound to ignore those blemishes and draw everything uh draw all reasonable inferences in favor of the state. So even if the state's only witness to a robbery was a convicted forger who wasn't wearing his glasses when he saw the robbery and who had a grudge against the defendant, even if the defense could bring all of that out on cross-examination, it's irrelevant to the probable cause finding because it's such a low burden. Um, that's an extreme example. I don't think the state would ever bring charges in a case like that.

[00:58:53]But we do have a an example that is similar in scope to that. And um that's straight state versus drobecky.

[00:59:04]That uh I think is how you pronounce the the name. D R O S B ke.

[00:59:10]That's 2010 Utah app 275. In that case, you had a child a victim of a child victim of sexual abuse who uh reported the sexual abuse to law enforcement, reported it during a CJC interview that then took the stand at the preliminary hearing and recant council or 14th amendment right to due process, then what what work is the Sixth Amendment right to confrontation doing?

[01:02:40]Um it just doesn't make sense to do that. So that's exactly why the Ninth Circuit in Peterson versus California said it's illogical to conclude that the substitute for a grand jury indictment, which is the state preliminary hearing procedure, must contain greater protections than the grand jury provides for itself um in the federal system. So, if the federal system the the equivalent to the state preliminary hearing is a grand jury proceeding, the grand jury proceeding allows um the federal system to determine probable cause to require a defendant to stand trial. Um the defendant doesn't have a right to be present in those proceedings, doesn't have a right to representation, doesn't have a right to cross-examination or even to present exculpatory evidence. If that type of a procedure is constitutional, then Utah pre Utah's preliminary hearing procedure is certainly constitutional.

[01:03:39]Um, I could go through each of the different constitutional provisions that defendant has uh relied on. I'll just I'll do that very briefly just summarize the reasons why we don't believe those apply. the Sixth Amendment, even assuming the defendant could rely on some other provision, which we don't believe he can. But the Sixth Amendment right to counsel, it doesn't create additional rights. What it does is it evaluates council's performance under the circumstances as they existed at the time.

[01:04:13]Um, now defendant brought up the fact that uh there is a right to to confront witnesses at suppression hearings and at sentencing hearings and at parole revocation hearings. That's a procedural right to cross-examination. It's not a sixth amendment right to confrontation.

[01:04:34]We know from um Crawford versus Washington, the Sixth Amendment right means that the state cannot rely on hearsay evidence that the defendant has not had a prior opportunity to cross-examine that. And so it's the Sixth Amendment right that prevents the state from relying on hearsay it. That's completely different from saying uh the defendant has the right to be able to cross-examine any witnesses that the state calls. And in fact, at a preliminary hearing, the defendant will have the right to cross-examine. I think we're planning on calling four witnesses. Defendant will have a right to cross-examine those witnesses. But a procedural right to cross-examination doesn't mean that the sixth amendment right as interpreted in Crawford applies and precludes the reliance on hearsay.

[01:05:25]Um with respect to due process and and the 14th amendment again you have to look at what process is due under the circumstances. And here again we've got a very low standard. Um, and the state's process here gives the defendant far more protections than the federal grand jury proceeding does. Both of them determine probable cause as to whether the defendant can go to trial. Um, and so due process doesn't supply some sort of right to confrontation that the sixth amendment right doesn't apply.

[01:06:00]Um the equal protection argument is interesting because um defendant has not shown that he's similarly situated.

[01:06:12]Well, let me back up. What defendant relies on is uh Moresy versus Brewer, which is the case that says uh defendants have a right to confront and cross-examine witnesses at a parole revocation hearing. But that's a defendant who is has been um convicted at trial and who is facing reimposition of a criminal sentence that to serve out the remainder of his sentence. Defendant here isn't similarly similarly situated to uh that type of the defendant. So he can't make a an equal protection challenge based on that situation. And again, Moresy versus Brewer does not say that the Sixth Amendment right to confrontation applies. It merely says as a matter of due process, if the state is calling the witness, the defendant has the right to cross-examine them at the proceeding just like defendant does at this preliminary hearing.

[01:07:08]Um, as far as the eth amendment goes, the state doesn't have any qualms with the idea that the eth amendment when we get if we get to the point of um whether or not the death penalty is an appropriate penalty here, certainly the eth amendment heightened protections apply there. But we're not at that point and defendant hasn't cited any case that would extend those eth amendment protections beyond the decision to impose the death penalty or they do cite Beck versus Alabama which talks about instructing the jury at the guilt phase.

[01:07:45]We're not at that point. You can't use the eth amendment and say, "Well, because this is a death case, there's super due process or super there's there's additional rules that apply above and beyond the procedural and evidentiary rules that apply at every other stage of this proceeding. Um, and then finally, as to separation of powers, I don't see anywhere in the federal constitution that dictates any particular separation of powers." uh principles to the states. And so it's completely up to the state of Utah to determine how it wants to divide the powers between its various branches of government. And the constitutional provision that's at issue here clearly says that the uh that reliable hearsay can be defined as by by statute or by rule. So the constitution itself is giving uh the legislature and the courts the ability to define what constitutes reliable hearsay.

[01:08:51]Uh as far as your honor's question about what you would like what the state would like you to review as far as the exhibits go, we just renew our request that the the court review all of the exhibits in preparation for the preliminary hearing.

[01:09:06]>> Thank you, Mr. Ballard.

[01:09:08]>> Any other questions?

[01:09:09]>> No. Thank you.

[01:09:25]Preliminary hearing witness and exhibit list and I can provide a copy to the court. I've circled the exhibits we're asking the court to review. They are exhibits 11, 16, 30, 31, 32, 33, and 34.

[01:09:43]I have a copy for the court with those highlighted if the court.

[01:09:46]>> Yes. If you'd like to approach, you may appreciate it.

[01:09:51]>> All right. Thank you to both parties.

[01:09:53]Uh, >> and judge, could I just briefly respond to the arguments that were made by the state? Uh, just quickly to run through them. The state emphasizes there's a low burden at the prelim. Granted, it's a low burden, but as the uh state versus virgin virg said, low burden does not mean no burden. And the US Supreme Court in Coleman versus Alabama uh recognized that the burden of proof at the prelim is very low. They nevertheless held that the defendant has a six amendment right to the effective assistance of counsel.

[01:10:32]So the fact that it's a low burden does not govern whether procedural rights uh should be applied and the Coleman case holds exactly that. Um the state says that the degree of reliability depends on the nature of the proceedings. That's true. But this is a case where the state of Utah has provided procedural rights at the preliminary hearing. Unlike grand jury proceedings, there are rights granted by statute to counsel. There's constitutional right to counsel. There is a right by statute to call defense witnesses, to subpoena witnesses. So the court has to take those uh procedural indicia into account in determining what other rights might be applicable and both the US Supreme Court and the Utah Supreme Court has said that the preliminary hearing is a critical stage of the proceedings.

[01:11:34]The state says that uh citing this ninth circuit brief opinion, the Peterson case, that it's illogical that the preliminary hearing must have greater protection than grand jury proceedings.

[01:11:49]It might be illogical, but the reality is that defendants are accorded greater rights in preliminary hearings than at grand jury proceedings. There is no right to counsel at grand jury proceedings. There is no right to subpoena defense witnesses at a grand jury proceeding. And yet in Utah, as elsewhere, defendants do enjoy those rights to uh certain protections. And once having defined that it's an adversary critical proceeding, the state has an obligation to provide the tools necessary to make that uh confrontation meaningful.

[01:12:24]um state emphasizes that the defense has a right to call witnesses.

[01:12:32]Theoretically true but irrelevant in this case because as the court will see from reviewing the exhibits how the state proposes to make its case in this case is exclus exclusively through the use of hearsay. So, calling a record custodian or a police officer who has no uh knowledge about the essential elements of the of the offense, the defense could cross-examine that person on some uh chain of custody issues, but it's got nothing to do with the critical issues before the court, which is are the essential elements shown by probable cause. And in this case, those elements are going to be satisfied by hearsay alone. Uh the defense says that or the state says that there's no equal protection problem here because uh we're not similarly situated to probation or parole violators. In all three of those cases, the interest at stake is whether the defendant should be confined uh for prolonged periods of time pending the outcome of this hearing. So, a parole revocation hearing, especially the preliminary parole revocation hearing, is very uh in fact it's indistinguishable from a preliminary hearing. The the goal is the same to determine whether there's cause to hold the person deprive that person of liberty uh pending further proceedings.

[01:13:56]Uh so there is an equal protection violation here. Um, the state says that the court can only look to the sixth amendment. As I understand the argument, the court cannot look to procedural due processes guaranteed by the 14th amendment. It cannot look to equal protection. It cannot look to the eth amendment. Uh, it cannot look to any other doctrines beside the sixth amendment to determine confrontation.

[01:14:25]And we've pointed to the court a long line of cases in both uh the US Supreme Court and the Utah Supreme Court which uh refute that contention. It's clear the court has an obligation to look at whatever constitutional provisions are implicated by the procedure in question.

[01:14:44]And the Utah Supreme Court uh when it was looking at the subpoena powers case looked at whether the act violated confrontation rights, equal protection, separation of powers. No one ever suggested that the court had no power to look at uh various constitutional theories. That theory is not supported by the case law. And then lastly, the state says that we've cited no cases to the court saying that the eth amendment u applies to the preliminary hearing procedure of this case. And that's simply not true. Uh Greg versus Georgia said that every procedural protection every procedural protection must be observed in a capital case. Not at a capital trial in a capital case. And as charged right now, this is a capital case. And we've also cited in the court the Ford case, Ford versus Waynewright, also along the same lines, saying that in capital proceedings, there's a heightened need for reliability.

[01:15:48]Um and then lastly in our reply we cited a whole string of uh state court cases which hold that at the preliminary hearing at the preliminary hearing not the trial the preliminary hearing the court has an obligation to employ a heightened standard of reliability.

[01:16:06]Thank you.

[01:16:07]>> Thank you.

[01:16:09]All right. Thank you to the parties.

[01:16:11]We're turning to the last item and just cutting to the chase. Uh, does the state oppose defendants's request on docket 593?

[01:16:23]>> Can I have just >> and there is also the scheduling of the responses to an EMC request which we discussed.

[01:16:35]>> Okay. Well, that Thank you, Mr. Novak.

[01:17:10]Your honor, >> if you would like to approach the lumry.

[01:17:17]Um, your honor, the So, this is a basically a motion to begin the process of compelling and of getting a subpoena for an out ofstate witness.

[01:17:27]>> Yes.

[01:17:28]>> Um, here's the issue is Mr. We know that from the pleading that uh the out ofstate witness's attorney has declined to accept service for their client. Um, and this witness has appeared by 11:02. We believe that that's appropriate and satisfies probable cause. The the rule requires defense council to certify that this witness is necessary and material to the probable cause determination. Under State V Lopez, we don't believe it is.

[01:17:59]We got this at 803 last night. I have I looked at it for the first time uh just moments ago. What I'd really like to do is have a couple of days to respond to this. I know time is of the essence, but um that's that's where we're at. So, I really don't want to respond right now.

[01:18:14]If I did, I'd probably submit on what I've said right now.

[01:18:16]>> I see. Thank you. Uh to defense, um is there any additional briefing needed uh in addition to what you've submitted on docket 593?

[01:18:30]And so, I'm just trying to seeing if there is trying to create an expedited >> only only to respond expeditiously to whatever the state files. So, for example, and again, we're both going off the fly. I'm now responding to Mr. McBride's statement. This is not a Lopez situation. The witness is not the victim in this case, as your honor knows.

[01:18:55]>> So, it's not a Lopez situation. Um, it's a question of whether the witness is a material witness.

[01:19:03]Um, so I think to squarely answer the court's question, we need a very short period of time after the state responds and if the witness's council wants to respond to file, I guess what we would call a reply.

[01:19:20]Um, but we are moving as we we can move as quickly as the court requires.

[01:19:26]>> Thank you. to the state and how much time and again I realize that this uh is appeared on the horizon >> till Tuesday business.

[01:19:46]>> All right. So we're looking at Tuesday the 16th of June.

[01:19:52]>> All right. Close of business. Uh Mr. Novak with that information.

[01:19:57]I think Thursday the 18th.

[01:19:59]>> All right. I close of business as well.

[01:20:03]>> And actually, in some ways, this may or may not sync anyway. Go ahead. I'm sorry.

[01:20:07]>> Well, and I know where you're going. Is does that sync pretty closely with the the last remaining issue briefing on the potential? Well, the problem with that is until it's filed, the request for an EMC that starts to time. I I my lawyer math doesn't get me to how close we are to the prelim off the fly, but um that's point.

[01:20:28]>> I was an economist before I was a lawyer, so my math might help.

[01:20:32]>> Um >> so you just want to hold that there for a second and move on to the other one and then see if they're in sync or what did you want to >> Well, and and I'm fine. It sounds like we have a good understanding for the briefing on uh that particular docket 593. So that that's been resolved.

[01:20:48]Turning into the last issue is uh in regards to the EMC when would the 14 days uh so right now the court's order from May says that um media requests need to be filed 14 days before the proceeding.

[01:21:11]14 days before the proceeding.

[01:21:14]um which is on July 6th is June 22nd.

[01:21:21]>> Um week from Monday, >> pardon, >> a week from this coming Monday.

[01:21:28]>> So this is what I was going to propose and we did meet and confer about this and my understanding of the state's position is they don't want the court to change its order. Okay, so I understand that's their position, but here's our proposal. Um, we propose that for purposes of the preliminary hearing of July 6th, if it proceeds on that date, that the court um adopt the following schedule. Any request for electronic media coverage should be filed um next Wednesday, June 17th, and we will take it upon ourselves, meaning Mr. Robinson's defense council to personally notify council who've entered their appearances on behalf of the media entities of any new deadline that the court sets today. So, we will notify them uh so that the court doesn't have to um rush into publishing an amended order unless the court wants to do so. But we can notify them, copy the state, copy the the court staff. Um it's a form as I understand it. This is the event. This is who's going to be behind the cameras. It's submitted.

[01:22:51]Okay? It's not a complicated um document. So this is my suggestion is that we will notify the media representatives today that any request for EMC needs to be filed with the court by the 17th which is Wednesday. Today's Friday.

[01:23:12]We have an issue which is a small delay between when it's filed and when it's docketed. And so what I'm going to suggest is that two days, two court days after it's docketed, we will file anybody who's opposing it will file a response.

[01:23:30]And then um two more court days for anybody who wants to respond to that and two more court days for a reply. The court's already set page limits which are very um modest. I think it's four pages, four pages, and three pages. That's fine. The court has said there won't be any oral argument, that's fine. But if my schedule plays out correctly and we were we got a docketed EMC request on the 17th and we filed our response on the 19th and the state filed any response to our papers on Monday the 22nd and then we filed a reply on the 24th it would be fully briefed by the 24th which gives us 6 plus 6 12 days before the prelim.

[01:24:20]>> All right thank you Mr. of active state wish to be heard on this issue.

[01:24:33]>> Yes, your honor. Thank you. I think we're not discounting the importance of and the significance of the media issues in this case. Um, but I think it's significant, as your honors already noted earlier this morning, that you granted a very generous uh opportunity to deal with these electronic media requests that it's far more generous than what the rule requires. It it appears to me that what the defense wants is an opportunity to get a ruling from this court on electronic media requests so that then if it's a it's a ruling that they don't agree with that then they can seek yet another interlocatory appeal and perhaps file a motion to stay this case. And if you look at the the procedure that the rule has already established, the controlling rule 4-4 uh one, the the rule does not contemplate appellet review of every electronic media coverage order. And that's clear from the fact that the rule only allows one day notice for a request for electronic media coverage. And in fact, it says that the court on good cause can grant a request for electronic media coverage. Uh it can shorten the one-day time. Um I think it could be, you know, as the hearing commences if there was good cause. So the um as the court has already established its schedule, it allows 14 days um before the hearing for the request. Under that current schedule, the court could have a ruling on the request by July 2nd. um which would be before the hearing. So we don't believe that the that this procedure which presumes that electronic media coverage those requests will be granted that it needs to be set up so that there can be the potential for for appellet review of every one of those orders.

[01:26:28]>> Thank you.

[01:26:28]>> Thank you.

[01:26:30]>> All right. Thank you to the parties. I appreciate I appreciate you conferring with each other and and trying to find a solution. I'm going to respectfully decline uh decline to adopt what Mr. Novak presented. And here's why. There's nothing that precludes the media from filing today that request and and in and being ahead of of the deadline. And again, that's outside of my purview.

[01:26:53]It's their choice if they choose to file or if they choose to file one at all.

[01:26:57]And so the court will uh rely upon the previously set schedule.

[01:27:05]Again, if the media files early, that doesn't preclude the parties from filing as soon as they they can or they wish to. And the court still having sufficient time to uh do its do its duties.

[01:27:21]And so that that's the ruling of the court as it relates to a different schedule as it relates to media requests for coverage EMC of the preliminary hearing on July 6th.

[01:27:34]goes to the very last issue which is uh the court is taking these two issues argued today under advisement and as this court typically does I I always like to review everything and I appreciate the quality of the arguments the quality of the briefing and what is clear to me the hard work of both defense and prosecution and and the seriousness applied to these important issues. Uh if you wouldn't mind taking a look at your calendars, uh the court has an opening on June 22nd at 9:30 a.m. to issue rulings on both of these matters.

[01:28:14]And uh as is traditionally has happened, it's done on WebEx, but of course, I'll hear from the parties on their preference as well as the attendance of Mr. Robinson at that hearing.

[01:28:27]That date works for that.

[01:28:35]>> It's okay.

[01:28:37]>> 9:30 in the morning.

[01:28:39]>> That's fine with Mr. Robinson's council and we will ask that Mr. Robinson appear by WebEx audio only from the jail.

[01:28:47]>> All right. Thank you to the parties.

[01:28:49]Anything further or any party needs the benefit of the record before we go into adjournment?

[01:28:56]All right. Thank you all and court is now >> adjourned.