In criminal proceedings, prosecutors may respond to media mischaracterizations of evidence under Rule 3.6C of the Utah Rules of Professional Conduct, which permits statements required to protect a client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or client; however, such responses must be carefully evaluated to ensure they do not violate court orders or constitute improper extrajudicial statements, and courts may require evidentiary hearings to investigate alleged contempt violations when there are serious allegations of misconduct that could prejudice a defendant's constitutional rights to a fair trial.
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LIVE: Tyler Robinson Motion HearingAdded:
Ciao Tutti Tutti. This is Prof. Joe at Prof. Joe Explains and we're waiting for the Tyler Robinson hearing on I think it will be three motions to go forward. Uh, I believe what they're going to do today, at least based on the last hearing they had, is three things. One, the preliminary hearing, which I think now has been rescheduled, and I think Amber will know the date. She might be able to put up the new date. Uh, they're going to be discussing whether that preliminary hearing can be streamed. Uh, and I hope it will be. Uh there had been a motion by the defense to say nothing in this trial should be streamed and the judge said that's way too broad. Can't do it. The law doesn't let me do it.
There's a first amendment right in the public. There's a sixth amendment right in the defendant. Can't do it. But you can ask to have a particular thing streamed. Thank you, Amber. The new the new preliminary hearing is July 6. Um, if you can make a showing, a specific showing >> 576 state of Utah versus >> Council, could you please enter your appearances?
>> Good morning, Judge.
>> Good morning.
>> Morning, your honor. Kathy Nester, Richard Novak, Stacy Visser here for Mr. Robinson who's seated at the table.
>> Good morning. Good morning, your honor.
Jeff Hunt and Mike Jud on behalf of the news media.
>> Good morning. And the court also recognizes Mr. Robinson. Good morning to you.
>> All right. Before we address uh the motions before the court, uh the court will take up a couple of preliminary matters. First, with respect to courtroom protocol, to maintain security and decorum, any individual who exits the courtroom during the proceedings will not be permitted to reenter until recess. All council are expected to take reasonable measures to safeguard confidential communication. Such measures may include the use of screen protections on electronic devices and care to avoid the in inadvertent capture of privileged or private discussions by recording equipment or by those present in the courtroom. I will note that for today's hearing, we're going to turn off the microphones at the jury box and at council table. And so I ask uh in order to avoid picking up in inadvertent conversations or communications and as you speak if you wouldn't mind just coming to the lectum and that will be the microphone that will be live through for this hearing.
Uh next turning to the camera operator and still photographer. Uh so with the two individuals responsible for video and still photography please come forward and state their names for the record.
Your honor, Trent Nelson with the Salt Lake Tribune is still photographer.
>> Good morning.
>> Your honor, Jeremy Dubas, KUTV2 News uh videographer.
>> Good morning.
All right. Uh court's purpose is to ensure the clarity regarding the expectations governing today's proceedings. And could you and uh have you reviewed the court's standing decorum order dated February 24th, 2026?
>> Yes, your honor.
>> Yes.
>> All right.
>> And do you understand the requirements set forth in the order as they apply to your activities today?
>> Yes. Yes.
>> All right. Do you require any additional time to review the order or to adjust equipment to ensure compliance?
>> No.
>> And do you anticipate any difficulty complying with the order or the court's instruction? No, your honor.
>> All right. Well, Mr. Nelson, Mr. Zebas, I appreciate your cooperation today.
>> That nails it down, but it also >> turning next to discovery for the state.
Could you provide a brief status update regarding discovery, Mr. >> McBride? Provided I'm sorry.
>> Go ahead.
>> As of May 12th, we had provided 100% of the material in our possession. Um, we received additional discovery from the state bureau of investigation uh over the last week and that material will be transferred to the defense uh very soon, probably this afternoon.
>> All right. Thank you, Mr. McBride.
>> Turning to the vents, uh, do you request the benefit of the record?
>> Thank you, your honor. Um, since our last status update, um, on May the 4th, um, we have received a total of 2,462 more files. Over 2,300 of those were residential surveillance camera videos.
Many of those we did have previously.
The remaining files were ATF and FBI without the DNA data reports and files and then some 1102 statements. Um some jail records, some other law enforcement reports. Um I I appreciate that the state has given us 100% of what they have. We really don't have a feel for how much they still have not gotten. I don't know if they know. It seems like it's just constantly coming in. But um we do appreciate how fast they're turning it over. But when you say we have 100% I think what they're saying is they have 100% of what they've received has been sent to us. But there's still maybe quite a bit out there that we just don't know how much it is.
>> All right. Thank you, Minister.
>> All right. Let's turn to defense's motion for an order to show cause for alleged contempt of court and for an order compelling discovery related to the alleged contempt.
>> This is the prosecutor's >> uh management purposes each minutes to present argument.
>> If defense intends to reserve time for rebuttal, council should plan accordingly. Afterward, we'll take a 10-minute uh recess.
And uh because this is defendant's motion, defense will proceed first. And again, as a reminder, uh this argument is in regards to whether the court grants an evidentiary hearing to hear additional evidence. And uh that's the decision that's before the court. With that, uh turning to Mr. Novak.
>> Uh thank you, your honor, and good morning.
>> Good morning. Um I think as the court stated there really are two um issues before the court today. One is whether um under Utah code section 78B-6-301 at SEC uh this court has an obligation to issue an order to show cause and set an evidentiary hearing. And the second question is whether in preparation for that the court makes a finding under um rule 16 of good cause to compel the state to comply with our informal discovery request. Um, and what I would like to say is that it seems um beyond debate based on the evidence before this court already that the court does have uh an obligation to set um an OSC evidentiary hearing. It's important also to note that the statute 78-6-309 actually says that the court investigates the alleged contempt and may call witnesses. So, I'm actually, if I may, going to address the two issues in reverse order, which is the discovery issue and then the hearing issue. Uh the communications, the events, the conversations, the state of mind of the various members of the prosecution team, uh with respect to the decision for Mr. Ballard to go on what I will call a media tour um is central to not only uh the core question of whether there's been a violation of the court's order but frankly um the egregiousness of that violation.
Uh while we pointed out in our papers and the state did not take issue with this in theirs that because the court's orders, the court's pre-trial orders are injunctions, we don't actually have to prove there's been an intent to violate the order. the fact that what I'm going to call an alleged contemper knows of the order and has failed to comply with it. Those two elements are all that is necessary. But the question of the seriousness of the violation, the sanctions that should be imposed in light of the violation um do get at intent. So intent is not irrelevant, but it's not an element of what I might call the the alleged offense of contempt of this court's orders uh and violation of of rule 3.6 and 3.8.
So we think that this court can't really fulfill its statutory duty to investigate without the parties well without the court and Mr. Robinson knowing um what communications the the Utah County Attorney's Office had with various media outlets.
uh what the the the nature of those conversations were, what the nature of the internal conversations were concerning whether Mr. Ballard should go on Fox and Friends and have a nationally and internationally televised interview, whether the Utah County Attorney's Office should issue emails to media entities.
Um and the Supreme Court's decision which has been cited to this court in the briefings um in the matter of Levit clearly show this court that the alleged contemporarers's awareness of problems with their conduct is central to the inquiry. So one of the first things that the Supreme Court said in its opinion was that after Mr. Levit had his press conference and he went back to his office, people in his office said, "Wow, that's a problem."
And so that internal communication is central to this court's assessment of what we would call uh the seriousness of the of the um the violation.
>> Well, Mr. Novak, let me stop you right there. Is the violation what happened allegedly? U because I haven't watched um the interview or what's been reported. Are you saying the violation for the potential sanction is what happened on the news or what happened behind closed doors?
>> The violation is what happened the violation is extrajudicial statements that have a substantial risk of uh of impacting the proceedings.
Okay. and the two specific violations are Mr. Ballard's statements on behalf of the Utah County Attorney's Office. So, the question really is uh and and I'm not suggesting that this is the case, but the question is did Mr. Ballard go off on his own and do this all by himself or was there a management decision to go do this? Okay. But the conduct that is a violation of this court's orders is to make extrajudicial statements about forensic evidence. Not only what the forensic evidence is and the testimony will be, but if the court looks closely at especially Ms. Visser's declaration filed in support of the motion, Mr. Ballard commented on what future versions of ATF and FBI reports will say after future testing is done, as if he somehow had a crystal ball as to what the evidence ultimately will be.
And the second violation is statements that clearly are expressions of opinion as to Mr. Robinson's guilt.
And these are two of the um examples highlighted in the comments to rule 3.6.
I mean this is textbook don't go out and say these things extrajudicially.
And if the court looks at the exhibits to our motion, what the court sees is the Utah County Attorney's Office was very cognizant of the fact that rule 3.6, rule 3.8, And this court's orders prohibit those kinds of statements because they sent letters to what I will refer to as their law enforcement partners basically saying don't go out and make extrajudicial statements.
So I'm going to get back to the court's question. The court's question is where is the violation? The violation is the extrajudicial statements. What I'm saying about the need for this court and for Mr. Robinson in order to meaningfully participate in the OC hearing to understand how it is that Mr. Ballard came to be going on this media tour because that gets to the seriousness of the misconduct and the types of sanctions that are appropriate.
So I'm not saying that a conversation between Mr. Ballard and let's just say hypothetically Mr. Gray. That's the question is where did these conversations start and where did they end that led Mr. Ballard to send emails to media entities and agree to sit in a studio or at least online and talk to um to to Fox News.
That's not the the conversations are not the violation. The conversations guide this court to the state of mind with respect to the violations and the sanctions that are appropriate for violation of the order. This the other question which is related is what is the harm to Mr. Robinson, which is something that this court is going to have to grapple with now. And as the the bomb litigation demonstrates, and we we attach what we think are the relevant orders from the bomb litigation, the remedies that are necessary to um attempt to return Mr. Robinson to the place he should be in terms of the presumption of innocence, in terms of having a a jury that hasn't been impacted by these violations. So, the discovery request is narrowly tailored in time. It's from March 26th until whenever the production that we requested was made, March 26th of this year. We were not asking the state for every single communication they've ever had with a media outlet since um September. We were asking for communications since March 26th because it was clear that the moment we filed our motion to continue the preliminary hearing, the state decided that the way they would shape the media conversation about Mr. Robinson's case was to issue emails to the media and and have live interviews.
>> So council and you mentioned 78B-6309 and it states the court shall proceed to investigate the charge and hear any answer which the person arrested may make. So would you agree it's the court's duty to investigate and decide what is necessary for the court to make that decision?
the court is entrusted with deciding whether or not there's good cause to require discovery. And I'm saying that in order for the court to conduct the investigation which is required by the Utah code, the court needs the materials that we were requesting and good cause means materiality. So clearly the communications between the Utah County Attorney's Office and the media and the internal communications not about case strategy, not about witnesses, not about evidence, but about communications with the media, which led to what we think clearly is a violation of this court, two violations of this court's orders, um is is gerine and necessary to the court's investigation.
However, that doesn't mean that this court conducts an inc camera proceeding that Mr. Robinson is excluded from. We are the moving party. We have um very serious constitutional rights which we need to make sure this court um understands the nuances of in terms of the impact of of the conduct and the seriousness of the conduct. So this is not a situation where the court in my view should receive the materials we requested in camera, not share them with Mr. Robinson and not part not part permit Mr. Robinson to participate in the um OSC. I don't know if that was what the court was suggesting. What I'm suggesting is that the court should compel the state to give us the materials which we requested. If there is any question as to whether some of it may be privileged, um the court can review it in camera, which is what we said in our papers. But that doesn't mean that the court conducts its own exparte in camera proceeding without us participating.
>> Sure. No, I I'm I'm not suggesting that.
And I'm saying >> then I then I read something into the court's question that um was unnecessary.
>> Right. What what I'm saying is is would you agree as part of this investigation in a hearing that the court determines what is necessary for the court to make that decision in regards to your request for discovery?
>> Yes. I think the court has to exercise discretion. But it's our position that the appropriate exercise of discretion is to compel the disclosure for the court to review those materials for Mr. Robinson to review those materials. If the court is concerned that internal deliberations produced in discovery need to be subject to some sort of protective order before there's an evidentiary hearing. That's fine. We've always been fine with protective orders. I think that we've been the party in this case has always said less um premature public disclosure of sensitive materials is best. Okay. And that if I may actually leads me to this um what I'm going to call a diversion about this ATF report. Okay. So our motion to continue did not mischaracterize the ATF report.
What the state wanted to do is expand upon the inconclusive nature of the ATF report. And instead of doing that in this courtroom, they went on a media tour to do it because the media misinterpreted what we said in our motion to continue.
Our motion to continue is accurate with respect to the ATF report. And I would also point out that it was Mr. Ballard and this is an email from Mr. Ballard to us attached to Miss Visser's declaration which says that the state thinks that that ATF report should stay under seal because to publicly file it would be a violation of 3.6. It would be an end run to quote Mr. Ballard around rule 3.6 because it would be filing in the public record a forensic report.
Okay. So, but at some point in time, for some reason, the state decided that report should become public and everything should become public and the court granted that motion. And so, that ATF report became a public document. And so, in a court filing, we accurately characterized what's in that ATF report in support of our motion to continue.
The court is well aware that there has been a dispute about the FBI's desire to do destructive testing without documenting that testing or allowing one of our ballistic experts to observe the testing. And so that's sort of like sitting there. But that's why that ATF report was initially lodged with the court in camera until the state decided or I should say privately to use the appropriate Utah term until the state decided that it wanted it to become a public record. Okay. So the other thing that I want to say and I'm going to save a few minutes is that the state tries to take refuge in the notion that because we've made public statements albeit in court in court filings about something that the state thinks has been mischaracterized that they get to go out and talk to the media to correct things. And that is not what rule 3.6 six permits and that is not what the Supreme Court in the Levit situation and in the in the bomb litigation sanctions. If Mr. Ballard and his colleagues thought that we mischaracterized the ATF report, which we did not, but if that's what they really believed in good faith, they could have done at least three things.
One, they could have filed something with this court, a judicial communication which said, "We think that Mr. Novak and his colleagues have mischaracterized this ATF report and our view of the correct characterization of the ATF report is as follows. Number two, they could have reached out to us and said, "We think that you have either inadvertently or intentionally misconstrued or mischaracterized this ATF report and we would like the parties to file something or we would like you to consider amending your filing." They could have done that. Neither of those things happened. Instead, what they did was they drafted an email and they sent it to media entities like TMZ and they scheduled an interview for Mr. Ballard with Fox and Friends where he characterized it extrajudicially.
And that's exactly what 3.6 prohibits.
The fact that they didn't agree with the way we characterized evidence to this court is not an excuse for violating 3.6 and not an excuse for violating this court's orders. And this court will remember, I'm going to conclude now, that when the state challenged this court's pre-trial and trial order and said that it was a prior restraint and that it was vague, I stood here and I defended the court's order because it wasn't a prior restraint on anybody other than counsel and their investigators. It's not a prior restraint on witnesses. It's a prior restraint on counsel. So there is no doubt that they understood that they can't be making extjudicial judic extrajudicial statements about Mr. Robinson's guilt or innocence or about the forensic evidence. Those are two comments that are right there in rule 3.6.
Mr. Robinson has a right to a presumption of innocence until the matter is submitted to the jury. This court's done jury selection, I'm sure, in many different ways. And when the jury is in the box being selected, he has a presumption of innocence. Every day he has a presumption of innocence until the matter is submitted to the jury for deliberations. And that is something that Mr. Ballard knows and he and his colleagues violated that right. And this court, in my view, needs to get to the bottom of why did this happen? who was involved, what was the state of mind, why didn't they do what the law requires, which is file something if they thought a correction of the record is necessary. The ATF report is in the public docket. It's there. It doesn't matter what Fox, CNN, MSNBC, TMZ, doesn't matter what they think of the report or what they think of our pleading. The only person who judges our pleading is your honor, not the media.
>> I've saved three minutes.
>> All right. Just a quick question for you.
>> Of course.
>> Uh assuming the court grants the request for an evidentiary hearing, how much time do you anticipate uh needing to present what you would like to present?
assuming and if there's a difference assuming you do get discovery that you're requesting or if you don't get discovery I I just want to take that in consideration as well.
>> Thank you honor. I appreciate the question and unfortunately the discovery will tell us how many members of the Utah County Attorney's Office were involved in this decision.
If it was Mr. Ballard all by himself, then there may only be one witness.
I think the the media evidence speaks for itself. We've lodged some of it as exhibits and some of it through hyperlinks all in Ms. Visser's declaration and the attachments to it.
If the discovery shows that there was a team meeting and there were a bunch of emails about it, then it may be that there has to be um that from our view multiple people need to be examined under oath. So, I'm not trying to dodge the court's question. Um, I think that it's um definitely no greater than a single day. I mean, this I don't think this is a multi-day hearing. Um, but I think the question is how many people were involved in the decision for Mr. Ballard to go on national television and send emails to the media. And I can't answer that question. And so I can only give the court this general idea that I think it's a it's a serious hearing um that should take no more than one day.
>> And if it's if the court doesn't request for discovery and it's that sole witness and I'm not holding you to that obviously uh how much time would you anticipate that would take?
>> So then if I may the examination and I can only start with Mr. Ballard because he's the one who made all the public statements. The first questions would be who did you discuss this with and when and then we're going to get into hearsay and then we may or may not have additional witnesses.
I mean I it's like kind of like an onion. So I actually think that we should see what's in the soup before we figure out how long it takes to to make it.
>> All right.
>> I apologize for the food analogy this earlier in the day, but I think the court understands what I'm saying.
>> Thank you, Mr. Nova.
>> All right. Thank you.
>> Turning to the state without hearing the other side. That was a pretty good argument, but I don't know what was said. May please the court. Um I think the first question is how has the defense shown adequate basis to merit further proceedings here?
Um whether those further proceedings are discovery or in evidence you're hearing.
The reality is that defendants um has already mustered the prejuditial statements. Right? That's what we're talking about here is the statements that have been made in the media. The defense has investigated that. They've reported the most prejuditial statements that they can find. And that's what the real question is is do those statements um violate the court's order and rule 3.6.
Um it doesn't really matter what other discovery shows. Maybe it does to a sanctions hearing, but uh certainly not to whether or not there's a contempt violation here that uh rule 3.6 six has been violated. So, um the question is has the defense mustered that uh evidence uh and that information necessary to uh merit additional proceedings.
And I think the best way to do that is to look at the the statements um and and determine on their face whether there is a good faith basis whether there is adequate evidence uh the defense has mustered to require additional proceedings.
And so I think we start with the law.
When there is pervasive media that misrepresents the evidence, that misrepresents the facts, and that creates a material risk of prejudicing the rights of a party. An attorney has the ability under rule 3.6 to correct those statements.
And in fact, they have the duty under a duty of zealous advocacy to their client to respond.
In this case, there was a title wave of media garnering more than 10 million views in a matter of hours that mischaracterized the evidence, that misrepresented the evidence, that misled the potential jury pool as to what the evidence was. That media, of course, uh reached Utah County. It was widespread and it created an undue risk of prejudicing or tainting and tainting the jury pool. As a result, Utah County Attorney's Office had the ability under re rule 3.6 and the duty as a zealous advocate to respond and to correct those mischaracterizing statements, those inaccurate and misleading materials.
Now, when we think about prosecutors, often we refer to prosecutors as the state. And that's because prosecutors have one client. That's the state of Utah. But it's important to remember that prosecutors are attorneys who have a duty of zealous advocacy and an ethical duty to their client just as stringent and as rigorous as any other attorney. An attorney for a civil client, an attorney for a criminal defendant. And when there are and their duty is to ensure that their client's legal rights are upheld and defended.
And when an attorney sees that their their client's legal rights are attacked, that attorney's whole job, the reason they have a job, the reason they are paid by their client is to protect and uphold those rights.
Usually, this is uh performed in the courtroom, but occasionally it must also be performed in the media. That's what rule 3 3.6C is all about.
An attorney cannot stand idly by while his client's legal rights are undermined and trampled upon by mischaracterizations of the evidence, by misrepresentations of the evidence, by misleading media reports. Instead, the attorney has the duty to protect his client's legal rights by correcting that misleading statement.
Now, I've mentioned the misleading reports by the media, but I want to be clear. I don't place the blame on this for the media. These are reports the media has repeated from defense council's misleading statements and I I disagree wholeheartedly with defense council statement that their uh their statements and their pleading was not misleading because it absolutely was. In defendant's motion to continue the preliminary hearing, the defendant stated this. The ATF was unable to identify the bullet recovered at autopsy to the rifle allegedly tied to Mr. Robinson.
Okay, so let that sink in. That's the statement they included. The ATF was unable to identify the bullet recovered at autopsy to the rifle tied to Mr. Robinson.
That statement is not inaccurate. That statement is accurate. They were unable to identify that bullet to that rifle, but it's incomplete. It's not the whole truth. And as a result, it's misleading.
It actually has two material omissions.
Material emission number one is that the ATF was unable to identify or exclude that bullet as having come from that rifle. Okay.
And then defense council compounds the misleading nature of that statement by following it up with this. The defense may very well decide to offer the testimony of the ATF firearm analyst as exculpatory evidence.
We all know what exculpatory means. That means evidence that proves he didn't do it. Right? That's affirmative evidence that shows he didn't do it. Right?
That's that's the that's the misleading nature of this statement because it is not exculpatory evidence. If it if that omission that material omission was included here that the ATF was unable to identify or exclude the bullet, everyone would know that this is not exculpatory evidence.
And that leads me to the second material omission which is the analyst reported that the bullet was a 30 caliber class bullet jacket fragment. Okay, 30 caliber class. What does that tell you? Well, that excludes a whole bunch of weapons from possibly being the the the weapon in this case. And in the and on the short list of weapons that are included is a 306, right? The weapon that was found at the scene.
The reason that's that that omission is material is because it shows that this evidence is not in fact exculpatory.
This report and the testimony from this analyst will be inculpatory.
Because on the short list from that that bullet came from a weapon that is on the short list which is which includes the weapon that was found at the scene.
That's inculpatory evidence. By no stretch of the imagination is the testimony of this witness exculpatory.
That's a misleading statement.
And it's not surprising that the media covered it and covered it the way they did because any reading any reasonable reading of those statements with those two material omissions uh leads to the conclusion which the media drew which is that the bullet does not match the gun.
This is exculpatory evidence. That's what the defense claims.
Under no stretch of the imagination could this witness be exculpatory.
The result of the ex of the analysis substantially narrowed the class of weapons that could have fired the fatal bullet and the defendant's rifle was on the short list. That's the truth.
Now, the media ran the story and it gathered extraordinary attention. Um, I've noticed that the monitors have turned off. Are we still on the record?
>> Okay, thank you.
The Daily Mail ran a story garnering 22 million views on X in a single day. And the headline was, "The bullet used to kill Charlie Kirk did not match the rifle allegedly used by Tyler Robinson."
Okay. The bullet did not match.
Major networks throughout the throughout the country and even throughout the world picked up this story and echoed it. Echoed this statement that came from defense council's pleading. I don't I don't blame I don't lay that blame on the media. That that's accurate reporting of what the pleadings stated and and a reasonable inference. But they echoed that misrepresentation, that misleading news. Major news direct uh networks reported that this ATF report exonerated Robinson, that the prosecution's case had fallen apart. Um there were quippy headlines like, "If the bullet doesn't fit, you must acquit." Um and that of course reached Utah, reached Utah County, where our jury pool resides. The Desert News, a Utah agency, uh uh had a had a story entitled, "How one headline shaped the narrative in the Tyler Robinson case." I mentioned these to tell you, I'm not over exaggerating.
I'm not overstating the the the breadth of the media coverage here and the risk of prejudicing a client's legal rights and the right to a fair trial.
So, what does an attorney do? You see this happen to your client, your client's case is is uh un that the evidence is being mischaracterized, misrepresented. We all know it because we know what that report actually says.
We have the report in our hands. It's actually public information, but now the media is is is relaying the same information mischaracterized by defense council and prejudicing your client's right. What do you do? Well, you do what Mr. Ballard did. He looked at the rule, looked at rule 3.6, subsection C, and it states, "A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejuditial effect of recent publicity, not initiated by the lawyer or the lawyer's client."
That's the law. Let's go through it and apply it.
A lawyer may make a statement, which Mr. Ballard did that a reasonable lawyer would believe is required to protect a client from the substantial undue prejuditial effect of recent publicity.
Is there substantial publicity here?
Yes.
22 million views in a day. We've covered that. Undue prejuditial effect. Is it undue prejuditial effect? Yes, it is because it's a mischaracterization of the evidence. The report does not say that the bullet did not come from that gun, which is what the media was stating, right? That's undue prejudice.
It's unfair and it's not accurate. And that is recent publicity, not initiated by the lawyer or the lawyer's client. Mr. Ballard didn't start this, right? Um the state didn't start this. This began because of a pleading the defense council filed in the court, right? And the rules don't require that defense council in order for for an attorney to respond, it doesn't require that the opposing party make the prejuditial statement to the media. All that's required is that the media is is making some prejuditial statement that's reaching your cl your jury pool and prejudicing your client's rights.
So, rule 3.6 is directly on point. It allows an attorney to make this to make statements to correct this misleading material to correct the the facts.
And I would say it's not only permitted, but it's a duty to respond. As an attorney, you have a duty to watch out for your client's interests. Zealous advocacy is enshrined throughout the rules of professional practice. Comment one to rule 1.3 states, "A lawyer must act with commitment and dedication to the interests of the client and with zeal in advocacy on the client's behalf.
When your client is being unfairly attacked, when their legal rights are being undermined, you as an attorney don't have the luxury of sitting there and watching it happen. You have a duty to stand up and represent your client."
Again, usually that happens in the courtroom, but occasionally, like rule 3.6 says, you have to do it in the media, too, to protect your client's interests.
And Mr. Ballard performed that duty by making a statement that accurately accurately characterized the evidence.
He had the report in front of him and he told he told uh the media in these interviews exactly what uh that report said which is how defense council actually characterized it today unlike their motion which is that this was an inconclusive report.
He characterized the the evidence as as the test characterized the evidence that it was inconclusive. There was not sufficient um material to compare with with test fired rounds to either draw the conclusion that it was included or excluded as having been fired from that rifle. The bullet was either included or excluded. The evidence didn't have adequate characteristics to make that comparison.
That was an accurate statement in the evidence.
But to show that Mr. Ballard was circumspect in his response and was abiding by his ethical rules. He did not take go a step further. He could have, but he did not go a step further to explain the inculpatory nature of that report.
Right? What he did is he corrected the misrepresentation the defense council had in their pleading. He said, "Nope, that's not what the report means. It does not mean the bullet did not come from the gun. It means that this is a an inconclusive finding." He could have gone a step further and included the other fact defense council omitted which is but the but the report shows this bullet is a 30 caliber class bullet which is consistent with having been fired from the rifle found on the scene.
He didn't say that he could have but he didn't. Why not? Well, because he's being circumspect. He's abiding by his ethical duty. He's not putting forward additional evidence that proves a guilt.
He's just correcting the misinformation that was out there. Well, let me stop you right there. You use the word zealously, but isn't that referring to defense attorneys uh to advocate for their clients? And under the rules, uh Utah prosecutors are to act as ministers of justice. Is there a different standard?
>> Um I would say there's a greater standard of zealousy for prosecutors than any other attorney to be honest because their duty is to the truth, right? not just to represent the interest of a client, whether that's a criminal defendant or a a business or a civil client, but they have a zealous duty to their client and to the truth even, right? And that's why if no, you know, if Mr. Ballard had come out and said, "No, the report says it came from that gun and and had some kind of misrepresentation and he said, "No, I'm being a zealous advocate right now because that's what I think is going to be shown in the in the long run." That would be a problem. But this was zealous advocacy and um a commitment to the truth here. He was representing the true nature of that report, right? The the the duty of zealous advocacy does apply to attorneys for the state, but they are ministers of justice and I think it means that their duty of zeal even possibly even exceeds that of other attorneys.
Certainly, they're not accepted from being zealous advocates.
Um so he did he made that he made that statement a statement that accurately characterized the evidence corrected the misrepresentation the misunderstanding and the mischaracterization of the evidence. He stated the test was conclusive and he did not go a step further or further um to then add pile on and say this is what the evidence actually shows and talk about the inculpatory nature. you know, maybe you're right. As a zealous advocate, maybe he could have gone a step further, but he didn't. And I think that was balancing the his duty as a prosecutor and a minister of justice against that duty of zealous advocacy.
Now, his second statement, his second statement was he is presumed innocent.
That is a statement that the the rule rule 3.6 and the commentary in particular of rule 3.6 talks about. You should say that when you're talking about that somebody has been charged with a crime. He has presumed innocent.
He said the ultimate decision will be up to the jury.
Those are appropriate textbook examples of how a prosecutor should talk. He then made the following statement. We believe we will be able to overcome his presumption of innocence. We have ample evidence to demonstrate beyond a reasonable doubt that Tyler Robinson committed this murder. The defense has also um criticized this statement as a statement of belief um or opinion. This is not a statement of belief or opinion of guilt based on personal knowledge or experience. Instead, this is a statement tied to the evidence which was directly relayed to rebut the mischaracterizations and the claims in the media that the state's case um was falling apart and this evidence was exonerating the defendant.
This was d this this was offered in direct response to the claim that there was not adequate evidence and the evidence that existed was exculpatory.
Now this was nothing more than the certification required by rule 11 of rules of civil procedure. When an attorney signs a pleading, the attorney is certifying that to the best of the person's knowledge, information, and belief formed after an inquiry reasonable under the circumstances, the claims are warranted by the existing law and the allegations and other factual contions contentions have evidentiary support. So the statement that we have we have the evidence to prove our case is nothing more than re reaffirming and confirming that certification that we made when we filed this case with the court. To do otherwise would be unethical to file a case that we don't believe is supported by the evidence. And this is nothing more than saying we believe that we have adequate evidence to move forward in this case.
There's nothing wrong with that and there's case law that says so and we cited that in our brief. Um it's a statement tied to the evidence.
Now defense council said has said no that's an opinion and compared that with the Levit uh decision. And I will tell you there's nothing further apart than Mr. Ballard's statement and Mr. Levit's statements. Mr. Ballard says, "Based on the evidence, we believe we have the evidence to go forward." Mr. Levit says, "We have reviewed the evidence, evidence the jury will never hear, and we believe this witness, in that case, the eyewitness to the murder. We believe this eyewitness based on evidence the jury will never hear." So, Mr. Levit asserted his personal belief in the credibility of a witness. Right? That kind of statement would be inadmissible, would be a mistrial if this if that statement was made an opening statement or in closing argument. Right? Mr. Ballard's statement on the other hand is we believe we have the evidence to prove the defendant's guilt. That's an that's an appropriate statement in an opening statement or in a closing statement. And I should say his statement was even more mundane than that because he said we have the evidence. He didn't say we believe or I believe. He said we have the evidence. And that's the type of statement that attorneys are trained to say in their opening and closing arguments rather than saying anything about beliefs.
Regardless, the point is the same. This is not I believe this witness. This is we have the evidence. Right? That's an appropriate statement. It would be appropriate for an attorney to make a trial and it's an appropriate statement to reassure the public that that attorney is proceeding on a good on good faith that there is the evidence that supports the charges and that this misrepresentation and mischaracterization of the of the evidence does not undermine the filing in this case the filing of this case.
>> Well, let me ask you a question in regards to use the term inculpatory and exculpatory. Isn't that in to the interpretation of the factfinder whether something is or is not?
>> Well, ultimately yes. Um and and I think right now that's you um for the purpose of this of this uh proceeding. But yes, ultimately it is. I don't see how any person could say that the the the conclusion of the report that this round came from a um came from a 30 caliber class weapon, which a 30 six the gun found at the scene is. I don't I don't see how anyone could say that's exculpatory when you say that round is consistent from coming from that gun.
>> Well, that's your interpretation. You're saying I can't see. But do do we need to be cautious in putting ourselves in place of the factfinder or making an interpretation of what the factfinder should assume it to be?
>> Um well of course we need to be cautious about that judge, but um I mean you're the factfinder in this case. My money is you're going to say that that that's inculpatory evidence. I mean because exculpatory evidence would say this bullet could not have come from that gun, right? that's exculpatory evidence and that's what defense council claimed it was exculpatory evidence. It just it's a logical impossibility for that to be exculpatory evidence. I don't think there's a reasonable way to interpret the evidence to say that's exculpatory. This bullet is consistent with coming from that gun. That's inculpatory evidence. I I can't I can't I can't wrap my head around a rationale that would find otherwise.
I don't know if defense council wants to make an argument afterwards, but I can't see it. Watch. I'm sure they will. I can't see it. Um, the test was inconclusive. The bullet came from a 30 caliber class weapon. The weapon found on seated is 30 caliber class weapon.
>> Okay.
>> Um, defense council has said, well, the state's only avenue or the state's appropriate avenue. I think they're actually saying the state's only avenue from response to the statement, the mis what I'm saying is a mischaracterization of the evidence in defense council's pleading. They say the only appropriate response is to respond in in pleadings or contact defense council. That's all fine. Um but when it comes to responding in the pleadings, this was a motion to continue the preliminary hearing. The ATF report wasn't even mentioned in oral argument. When I responded to that pleading, I thought that's a non-starter. That's an issue that's ancillary to the core issue of this motion to continue, which was discovery of DNA evidence and and underlying DNA data. Right? So, when I'm responding to their motion, I'm going to pick and choose what arguments are going to have carry weight and I believe will carry weight with your honor. I'm not going to address every single argument that's out there. And that's not and that and and beyond that responding in the pleadings does nothing to correct this media frenzy that's happening out there that's just echoing this mischaracterization of the evidence. Right? It just doesn't we're my office is getting calls um from the media after they read this. You know they they run the story gets 22 million views. All the media says, "Wow, this is getting a ton of publicity. Let's jump on board." They start covering this, they call our office, and as an attorney with a duty to your client, do you just say, "Nope, I'm going to let the media run with this and continue to mischaracterize the evidence in the case." I don't think you can do that. I think that violates your duty to your client. I think um I think you have to be careful in what you say, of course.
But um responding in the pleading doesn't protect your client and doesn't protect the jury pool from unfair and undue prejudice, which is what rule 3.6 directly addresses, 3.6 C. And that's what happened here.
The rule allows response to the media coverage and filing a pleading does nothing regarding the prejuditial media coverage in this case.
Um, I will tell you, um, this motion has caused the the state to closely review and revise the way it interacts with the media. Um, we from the outset, defense council is right, we know, we knew the rule from the outset, rule 3.6, Six, the day defendant was arrested, we sent letters to um law enforcement agencies uh within the state and federal agencies as well asking them, hey, you've got to abide by these rules and outlining what those rules are, including the comments to rule 3.6. We're very aware of that.
We're very cognizant of that. And that's actually why we had the response we did is because we looked at rule 3.6. I'm assuming that's what Mr. Balor did. He looked at rule 3.6 6C and said, "Look, this allows me to respond." And he did.
He responded as the rule allows.
Your honor, we are committed to um as we stated at the outset of this case, to abiding by the rules.
We are committed to ensuring the defendant gets a fair trial, but we're also committed to ensuring that our client, the state of Utah, gets a fair trial. and we see and when we see our clients rights being trampled um and the right to a fair trial being uh potentially undermined um we are going to fulfill our duty to zealously represent our client if that means correcting the statement in the media and if that's the only way to do it I think that that's appropriate and that's allowed under the rules I will say that we are very cautious and we will be more cautious in the future um in summary your honor given the state of the law given Given what has happened in this case, given the state of the media and the context of the statements and given the statements that defense has alleged here, the defense has not shown enough evidence to have additional proceedings in this case.
The statement is soundly and squarely within rule 3.6 C. Um the statement falls within um what is allowed by the case law that I cited. a statement that we believe we have the evidence to move forward with the case is appropriate under rule 11 um as well as uh the case law that I site that was cited in the pleading. For that reason, your honor, I'd ask you to deny the the motion to for the order to show cause. Um the the point is well taken and we are uh as I said have revised the way we are addressing the media and uh we intend to avoid anything that could be construed as violating the court's order in the future.
>> Right. Just a question or two. You stated earlier that um if if sanction if an order to show cause and I'm summarizing I'm not quoting you that order to show cause was found at the sanction stage discovery about communications may be warranted >> uh is what what's your position on the request of defense for communications internal communications uh should be uh requested or ordered to be produced.
>> Yeah, that's work product, your honor.
Um the conversations that we have about any strategy um is work product. Um you know, I think that I think there's an at issue exception to the work product doctrine. I think the amendment to rule 16 actually gets rid of all exceptions to the work product doctrine if you read read the language of rule 16. Um but I I think that there's um if there is an exception it would be the at issue exception which is um are the attorneys communications internal work product communications at issue in the allegation of misconduct. Um but I I do think that um you know if there is a violation that's the only way that those that those uh communications could be discoverable um would be after the fact after a finding and with regard to what sanctions should apply. Frankly, uh, Defense Council hasn't shown any any um basis to believe um that those are relevant and that they that they uh I mean they haven't even shown they exist.
And I think that they have that show that that burden under rule 16. But I would also say this, those are relevant to a separate issue, right? That they're not they're not relevant to this case under rule 16. There is no good cause for the discovery of that material under rule 16 because rule 16 deals with the defense's need in this case the state versus Tyler Robinson, not defense versus Utah County Attorney's Office. So under rule 16, they're not allowed. It's not there's no good cause here. There's good cause to discover the statements that are in the media, but they already have those, >> right? Because that's what's at issue here is defendants rights. Um I don't know if that answers your question, Judge. No, I I appreciate that. And final question, same one that I asked to defense. If the court were to allow an evidentiary hearing, how much time would you anticipate the state would need?
Obviously, there's variables as defense has the is is the moving party, but how much time would you need?
>> Well, probably, you know, a time to cross-examine any witnesses they have.
Um, I mean, this is the the unique situation defense is going to be in as they, you know, um, I mean, what what are they talking about? They're going to call every every attorney that represents the state in this case. Uh, they're going to call every news agency that did an interview with uh with any state's council.
They're going to I mean, they could make this thing go on for weeks if they wanted to.
>> Well, they can't. The court manages the calendar and so theoretically >> if allowed to, if allowed to, I should say.
>> All right. Thank you.
>> So, um, you know, I would think that it would be probably Mr. Ballard probably be the only witness and in that circumstance, you know, we'd be talking three hours. You know, probably would half a day would probably do. Um, again, I don't think the court would be, frankly, in much better position to render an opinion than it is now. Uh, the what's important here are the statements the media has has reported and defense has already mustered those.
So I don't think there's a whole lot of additional discovery that would be needed whether it's in the form of testimony or production of materials.
>> Thank you Mr. McBride.
>> All right. Uh Mr. Novak I did uh state went over by one minute um because of my question. So you have seven minutes instead of six.
>> Thank you. Um, I want to go back to the this court's order dated September 16th of 2025, which says lawyers who have participated, who are now participating or who will yet participate in the investigation or litigation of this case in any way, shall abide strictly by rule 3.6. 6 of the Utah Rules of Professional Conduct.
Rule 3.6 prohibits a lawyer from making quote an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. Close quote. This court did not give council leave to decide whether extrajudicial statements correcting what council has argued are media misinterpretations of pleadings are an appropriate exception. And so actually um what council's argument reminds me is that there was another option that the state had. The other option which the state had which is probably this court's preferable option would have been to say your honor we need to have a hearing.
We need to have a hearing to find out if this court believes that when the media misinterprets the content of a pleading, we can go do media interviews and send emails correcting it. Your honor, is that an exception to 3.6 that this court sanctions?
And if the answer had been yes, then there would have been a judicially supervised crafting of that, my suspicion is the court would have said no. 3.6 is intended to allow one party to make extra judicial statements implicitly where another party has already done so. And we need to balance the playing field.
Mr. Robinson's defense team, and I've said this before, has strictly adhered to the principle that we will have no contact with any media and we will not make any statements to any media entity of any type. And in the same way that Mr. Ballard um apparently was getting this influx of media inquiries, so are we every day. And we never ever respond at all because to do so would be a violation of 3.6 because there is no exception under the situation here.
We did not say in our pleading that the ATF report concluded that there was not a match. That is not what it says.
And of course, our pleadings speak for themselves.
The massive media interest in this case is not an escape hatch on rule 3.6. It doesn't matter how much media attention there is. It doesn't matter whether it's accurate or inaccurate as long as it's not something generated by one of the parties. That's just what we are all dealing with in this case. And there is nothing that we have done in connection with the media that justifies what the state did here or excuses it.
I'm going to talk briefly about views of exculpatory evidence.
The state, as your honor knows, has a burden to prove a defendant's guilt beyond a reasonable doubt. The absence of evidence that a factfinder might find probitative of guilt is itself exculpatory.
So, in a hypothetical case, there's no fingerprint evidence. The state doesn't offer any.
That's exculpatory.
In a hypothetical case, there's no confession.
The state can't offer it. That's exculpatory.
The absence of evidence is exculpatory.
So, the ATF's inability to match is exculpatory.
The state can say that there are parts of that analysis which are inculpatory.
That's fine. But it is for the finder of fact and it is well established that the absence of evidence pointing at guilt is by definition exculpatory. And so what this court obviously has is two different views on what evidence is of what value. And a devoted, wellskilled prosecutor sees one piece of evidence one way and a diligent defense attorney sees it the other way. And the question is, what do the people in the box think about inculpatory versus insul versus exculpatory?
And finally on this discovery question, your honor, council has made references to what Mr. Ballard may have done and may have thought about and may have thought considered. We don't have a declaration from Mr. Ballard. We don't have any testimony from anybody in this office about what led to this play, if I may, this media play. We have argument and that's why this court needs to investigate. And this court can't allow the state to hide behind this notion that there's no good cause for disclosure under um rule 16 A4. This is a classic situation where an a wellfounded, not frivolous, serious allegation of a violation of this court's order in a capital case requires looking behind the curtain as to what did and did not happen. This court cannot fulfill that obligation without knowing that. And this is the case.
council suggested that this is not the case. This is, you know, Mr. Robinson versus Mr. Ballard. That's not what's going on here. This is a case about Mr. Robinson's constitutional rights, his presumption of innocence, and whether the violation of 3.6 requires various types of sanctions. That is this case. It's not a different case.
>> Thank you.
>> Thank you, Mr. Novak.
All right.
Thank you to the parties. Uh the court is going to take this uh decision under advisement and as uh this court typically does, we'll schedule a future hearing to render its decision uh and we can discuss it at the conclusion of today's hearing. At this time, we'll go ahead and take a 10-minute recess and then we'll turn to the other matter.
Court is in recess. All right.
um the court um is not going to decide today. This court's going to schedule another hearing to announce the decision, which seems to me to be a little odd. Um, but maybe if he decides there's going to be an evidentiary hearing, he'll do both at the same time.
I thought both those legal arguments were really very good. I don't know how you felt, but I really was was very impressed with both of them. And the nub of the issue I think is whether the document that the defense filed which left out salient points and picked the part of the experts uh report that was helpful was a misrepresentation that that that allowed owed the prosecutor to then respond to publicly and therefore not violate the court's order or the rule about public u disclosure of information. I mean, the other thing the court may get to is whether the u his order was violated if indeed it was simply the media that misrepresented and whether that gave the prosecutor the opportunity to go to the media. uh but I think the first part of it is clearly whether if the document doesn't say doesn't give the full context can the prosecutor report um and I don't think it's an easy question actually uh but I do think both sides did a good argu made a good argument with it so this is Elm MRV 06 a question surely the jury will be tainted somewhat as this case is date and worldwide jury questioning in selection will be key. No, I don't think they're going to retain it. I don't know how many of them even heard it. This trial will be a year off. I don't know if they'll remember it. They'll hear the evidence at trial from the expert that says you can't I can't prove I can't show that the bullet came from this this firearm, but it is consistent with uh bullets that come from this firearm.
And that's what you hear a lot in trials. uh hearing it doesn't make a taint. If a potential jury got juror got on the stand and said, "I heard this and I decided he's definitely not guilty or I heard what the prosecutor said that it was consistent with and decided he's definitely guilty." That would exclude the the juror. You know, I can't make a fair decision. But I don't know how anybody could be persuaded one way or the other by information that says we can't show it definitely came from this firearm, but we also can't exclude that it came from this firearm. That doesn't seem to me to be a very prejuditial statement.
If you disagree, let me hear what you, you know, what you think about it. But to me it's not prejuditial particularly prejuditial which may be you know something that the judge might say that the fact that you know the media said aha you can't you can't connect it and therefore uh it's a big hole in the prosecution's case I don't see why that would uh that's going to that's going to be something that your potential jurors would remember or you can't handle it on voadier did you hear did it influence you if you there's something different at trial. Will you pay attention to what happened at trial and not this media coverage a year ago? I think it's easily correctable. Some things aren't, but this one strikes me as easily correctable. If you disagree, put it in the chat. Let's let's hear, you know, what you think about it. Little Miss Red Velvet wants to know about the Utah Rule 36. It essentially says that you that that parties to an action can't make public comments about, you know, um about their their opinion as to well, let's say criminal, about their opinion as to guilt or innocence or their opinion about um how important a piece of evidence is. uh because you're trying to avoid any kind of, you know, uh information to the jury that might tend to lead a potential juror to be disqualified because the juror heard it.
Uh it's an attempt to say we try the case in the courtroom and not in the public.
But I just don't think this one rises to that level. Although I do think both sides, as I said, did a really good job.
I wondered, do you agree that they did a good job? I thought they were very they were focused on the issue. They made very good arguments on each side about the issue. Uh so I I was impressed. Now whether the judge needs an an evidentary hearing, now I'm on the prosecutor's side. I don't see why. It doesn't matter how many people in the office talked about it or who the people in the office might have made contact with. Whether it's Fox News or CNBC or I don't remember who they talked about. It seems to me that doesn't who cares. The issue is that the statement was made and the prosecutor says here how here's why I did it and here's how I defend it. And the defense says it was made and you can't defend it. I don't know why they need to know who else in the office talked about it to get to it. I don't know that it's even important if somebody else in the office said, "Gee, I think you're going over the line."
However you do it, it just seems to me to be not not particularly needed to have an EV evidentiary hearing on it.
So, I think I will be surprised if the judge decides he needs an evidentiary hearing to decide. Uh, I won't be surprised if the judge uh if the judge uh decides that it did violate his order, but then the question is whether it was an intentional violation. The defense says yes because they knew you made the order and they did it. The prosecution says no, we knew what the order said, but we didn't fall under it.
So I think that issue is more, you know, more important, but we'll see what the judge decides to do. Any other questions?
So Dball 584 said, "I had a statement prepared by Cor Corey Cano. I was there to give a full statement." Oh, and this is the u the is this the friend the former the the former employee for u what did he say? What did you say? 20 24 years who was injured. Uh trying to think um or were you simply the the statement by Corey Cano wasn't read read into the record. That was a letter. And Gerald Alman, if that's who you are, uh was the employee who had worked for Keith uh Cano for I think you said 24 years and um and felt like you were all members of the same family and they helped you out when there was the injury.
Oh, I see. That's what you're saying.
You gave your statement and you were prepared to read Corey's, but the prosecution said no, they would read it and they didn't. Okay. All right. If you have the full text, you put the full text in the chat. Okay. Thank you. I will look at it and I will u um talk about it maybe in the in the in the the summary tonight that I'm going to do. uh the you know the prosecution most of the most of the statements went through by letter to the judge and were not read out. Uh I thought maybe the people who did it by letter did not want to appear.
The prosecution's in charge of what kind of presentation is made at a sentencing hearing.
Typically any victim who wants to speak gets to speak. Uh I I don't know and I don't know if you know whether Corey Cano did not want to be there and appear himself and that would be a reason why the uh prosecutors might not want anyone else to read the statement and then they may just have made a judgment call that it wasn't needed at the hearing. And you know in terms of what happened that was that was certainly true. I mean, the judge really came down hammer and and what is it? Hammer and tongue on um on on Paul. But that's interesting. Thank you very much for sharing that.
Okay, so let me see if I can find the comments.
Uh, and I can't answer why. I'm going to I'm looking now. I can't answer why the prosecutor might have Oh. Uh, okay.
That's Amber giving you an answer. I can't answer why the prosecutor said she would read it and then didn't and whether she told you in advance that she wasn't going to.
Uh Amber, we have to be sure that the statement came from Corey before we do anything. Um I'm not suggesting, you know, that u Daryl would misrepresent, but we can't be sure it's Daryl. I mean, this is the cautious lawyer speaking here, and I don't want to, you know, I don't want to challenge anybody's, you know, veracity, but we still have to be, we still have to be careful. You made Italian meatballs in my honor.
Darren, sorry, Darren, I am very sorry.
I am want to get names wrong, even names I pronounce all the time. I get my family names incorrect once in a while.
I just it is a failing that I have not been able to correct.
I wish I had been able to correct it. I have not been able to correct it. Uh so it's a sad sad thing, but it's my cross to bear.
Uh okay. Are there any other questions about Tyler Robinson? We're going to be going on to I believe the other two issues that are going to be covered at this motion hearing are one um another defense motion uh that I think has well I'm going to listen to what they say but I think uh thank you Darren please email it and we'll get back to you. Appreciate it. Uh we'll get back to the um defense is going to make another motion which as I say I'm going to listen to what's said but I don't think it has much merit and that is that there's a constitutional right not to have hearsay introduced at a preliminary hearing. Um, the other one that's going to be is that's going to be handled is whether the preliminary hearing itself should be closed to streaming and closed I think they're even talking about cameras not to stream but to take pictures in the courtroom.
Those were the two other things that on the last hearing the judge said they would cover today. So, we'll see if they get to both of them. Um, and the media is going to be there. You heard that because the media has an independent right to intervene and speak on behalf of the media's uh opportunity right under the first amendment to cover court proceedings and uh derivatively of the public's right to be able to see court proceedings. the public. We the public don't we don't have somebody who goes in and and talks for us except to the extent that the a party opposing a motion to close would speak for the public also. And at the earlier hearing, the prosecutor did make a um uh a presentation that included the right of the public. And there is a I don't know whether it's a statute or court opinion in Utah that talks about when you can close hearings and for the defense to prevail. So you'll have to listen to this. For the defense to prevail, the uh defense will have to show one specific facts about the preliminary hearing that make it different from any other hearing.
uh you can't simply go in and say it needs to be closed because that's the you can't do it in general. You got to make a specific fact dependent showing.
The other thing is you also have to show that there's no other way to handle it that would be least intrusive on the public's right to see and hear and the media's right to be there and report. So even if you could show gee there's going to be something that comes in at this hearing that could prejudice the defendant here's what it is or they may go on camera to say here's what it is so it doesn't get reported today even if you can do that there's still a second step which is is there another way to handle it for example if it's particular testimony I'm making this up so don't anybody report this as accurate if there's particular testimony that Tyler Robinson confessed information uh You could have the hearing open but close that portion of the hearing that's dealing with the information that is so >> give me just one second here.
All right, let's next turn to the issue of the motion in lemonade to close those portions of the preliminary hearing testimony which would be inadmissible at trial or which if publicly disclosed prior to trial may prejudice Mr. Robinson's constitutional rights to a fair trial and sealing preliminary hearing exhibits which would not be admissible at trial or which if publicly disclosed prior to trial may prejudice Mr. Robinson's constitutional rights to a fair trial. To each side, you'll have 60 minutes to present evidence and argument. If defense would like time for rebuttal, please plan accordingly.
And uh as this is defense's motion to sent defense, we'll proceed first. And turning to defense, Miss Visser.
>> Thank you, your honor. Um, I can tell you I am definitely not taking an hour here.
>> All right.
Those are words that every judge wants to hear.
>> It's not the attorney five minutes, but it definitely won't be an hour.
>> All right. Thank you.
>> Um, so yes, your honor, the two issues before the court in this motion are the handling of the exhibits at the preliminary hearing and the motion to close the hearing itself or portions of the hearing. I'm going to work backwards because I actually think the state and the defense are mostly on the same page about the exhibits. Um, it seems that the state does not intend to offer the exhibits in such a way that they will be viewable by the gallery. That was our primary concern with uh the exhibits during the hearing and making those publish publishable online through the live stream or recording. um that issue is not before the court at this point. I don't believe there has been a request for electronic media coverage. We do anticipate that that will happen, but um that was our primary concern about the exhibits and how they are kept in the record if they are kept in the record. I know that standard protocol is that they are withdrawn after the preliminary hearing. That's what I anticipate to happen here. However, if for some reason they need to remain in the record, we have provided a detailed table to the court of what is already categorized under the rules of judicial administration as private, protected, and safeguarded. And we're asking the court to ensure that the records are held that way if the state desires to keep them in the record for any reason.
We don't believe there is any reason for that. If there is post-p preliminary hearing litigation where we need to reference exhibits, we'll handle that at that time in the appropriate way, make sure they're classified according to the rules.
>> Okay.
>> So, I think that actually addresses that concern. Um, the other concern of course is closing the preliminary hearing which is a little bit more nuanced and is tied in some ways to the other motion that is not fully briefed yet about the use of reliable hearsay in a preliminary hearing in a capital case. I'm going to try very hard not to delve into any of that. I know that the state still needs an opportunity to respond.
Um going to the two factors from Karns, I'll address those. The first is the evidence relevant to the nature and extent of the adverse publicity that may be generated from providing evidence in an open setting in a preliminary hearing. Now, we've overwhelmed the court, I will say, um with the adverse publicity in this case.
We had a whole hearing about it. We submitted lengthy briefing, lengthy presentations, copies of all of the videos. So, this court, I think, has a very good idea of some of the media that is being generated around this case. I also think that the argument that we just had demonstrates how sometimes the media can misconstrue the evidence in one way or another and that can get into the jury pool. So our goal here is to prevent that from happening by avoiding publication of evidence before there has been admissibility determinations.
Um there will be litigation about the admissibility of a lot of this evidence.
There are chain of custody issues that will have to be addressed that are not appropriate for the prelim. There is 702 and Dobert issues that will be addressed as far as expert reports and testimony.
Um, and most of the preliminary hearing, as far as we can tell, is going to be based off of reliable hearsay. They're calling five officers to discuss a very extensive investigation basically throughout the state of Utah. The reports are lengthy and contain lots of statements from other officers and people that collected evidence and people that talked to witnesses. And unfortunately, we're not in a very good position right now to know what of that testimony is going to be based on personal knowledge versus reliable hearsay from other officers as defined by the rule. So our solution, what we see is closing the preliminary hearing and this court thereafter providing a transcript of what occurred during the preliminary hearing that can account for all of the evidence that wouldn't be admissible at trial. That's the solution that we're proposing here. That's the only way we see that we can protect our client's right to a fair trial and avoid evidence getting out that potentially is going to be challenged in the future and may not ultimately be used or admissible at trial. Um so that also addresses the second karns factor. I also wanted to note um just for the court's understanding when we talk about Karns and we talk about Archeletta both of these cases um happened at a different time before the use of reliable hearsay was allowed by the Utah Constitution in the way that it is now. So when we're talking about those cases and their discussions of prejudice and what open and closed looks like under those circumstances, they were very different. There were more um witnesses testifying as to their facts as opposed to hearsay from other individuals. Um and there was more opportunity for cross-examination and the exercise of our client's right to confrontation.
So now we're dealing with basically just a presentation of evidence from the state and again without any determination about admissibility at trial. So we are asking for that solution. We think the landscape of the evidence at this point versus those prior cases while they are still you know the guiding uh procedure for this court to follow. Um we believe the instances in this case, the circumstances of this case, the media presence in this case and how the media has already in some instances taken information out of this court and misinterpreted it and facilitated misinformation about the case. Um we believe the only way to really prevent that is to control what's coming out of this courtroom. So that is why we're asking to close portions of the preliminary hearing if we can narrow it down. Honestly, I think that's a question only the state can answer or the entirety of it and we can pick through it after.
>> Well, so let me stop you right there. So looking at Karna's uh we have to align with the narrowly tailored like simply saying closing the whole hearing. I don't think that would conform with narrowly tailored and saying let's just close the whole thing and then pick pick it apart afterward.
Wouldn't you agree that that's a bit broad and that that kind of that's not the intent of of the case law or the rules that we get to just shut it all down and then figure out afterward?
Or do you have a different interpretation? Well, your honor, we've kind of talked about different solutions here, but the alternative is we essentially make objections as we go through the hearing. Um, which will probably take quite a bit of time and extend the proceedings significantly.
So, if that's the preference, we can absolutely do that. Um I do think that it would interrupt the flow of the evidence and the presentation before the court to do it in that way. Um but if that's the preference, we are also open to that solution. But our concern again is that a bunch of inadmissible evidence is going to be presented without any sort of testing before it is presented and put out into the world to the jurors and bias clients right to a fair trial.
>> Does the court have any additional questions?
>> No. Okay.
>> Thank you.
>> It was also a good job. I'm very impressed with how the lawyers are doing today.
Mr. Gander.
>> Thank you, your honor. Um, the state has tried to make it abundantly clear in throughout this process that we favor open hearings uh so that the public can trust what happens in this courtroom.
Um, and public confidence increases when people can see justice at work. So, that's our general argument. Um, this in many respects is largely the media's fight. judge. Uh but the state is interested in weighing in on on these issues here. Um we've talked a little about the Kern's Tribune Court. Um and it's clear um from that decision that the public including the media possesses a constitutional right to access to preliminary hearing to access preliminary hearings. Um, and the question, the overall question there as far as closure is, is there a realistic likelihood of prejudice to a defendant's right to a fair trial? That's the overall question.
And then we get into the the factors that the court should consider, which are, will the evidence shown during the preliminary hearing create such negative publicity that it's impossible to hold a fair trial because an impartial jury cannot be seated at some point in the future. And the second question is important. The second factor speaks to are there feasible and effective tools available to this court to ensure a fair trial. And we've had extensive arguments about pre-trial publicity in this case.
We've talked about voadier. We've talked about extensive jury questionnaires that can be used as well. Um, and as it applies to here, um, we've we've talked about the idea of shielding the public from some of the exhibits, um, that are going to be offered into evidence. So, let me just kind of pivot to that. Um, we do favor, your honor, um, the judge, we we favor, your honor, denying access to the public and the media from physically handling the exhibits and copying the exhibits that are admitted during the preliminary hearing. And the reason for that is expressed in the Archeletta case. And the language there is that um we believe that allowing the media or the public to physically inspect or copy these exhibits may disrupt the efficient performance of justice, hamper judicial interest or jeopardize defendants's right to a fair trial. And that is because we have not yet tried the case.
Those are likely exhibits. Many of the exhibits will be used at the trial at some point in the future and having the media access those and try the case in the public if you will I don't think serves the administration of justice. So I think we we we concur with the defense with respect to that. Now when it comes to the closure of the of the proceeding that's where we differ um I think significantly judge um because the public has a right to be present including the media as articulated in Archeletta they have a right to report on all that occurs there. So, there's a difference between the public being present for the hearing, observing the hearing, the media being present, and reporting on the hearing, and having access to the actual exhibits. But there's real merit in the public being invited into this proceeding to watch how it plays out, to see the exhibits introduced into the evidence. um they're allowed to listen to the arguments between the parties on the admissibility of it, the arguments at the close of the hearing on whether uh the states met its burden to bind the defendant over for trial. And that's part of opening these proceedings, making them transparent so that the public can trust the process, what happens in this courtroom. Um if the court were to close the preliminary hearing, the court would necessarily be making the decision to um limit electronic media coverage. So I think that um Utah Code of Judicial Administration rule 4-41.01 01 is in play and the court's going to have to undertake that that analysis um if the court is to to close this hearing or even close portions of it. And there's a number of factors that the rule asks the the court to consider some or all of these factors and some of them clearly um stand for this idea that it should be opened that the media should be allowed to cover these proceedings. For example, the adequacy of the court's facilities for electronic media coverage. Check that. That one is satisfied. the public interest in and newsworthiness of the proceeding. We all know the newsworthiness of these proceedings. Uh the potential benefits benefits of allowing public observation of the proceeding through electronic media coverage. Again, we think that um opening these proceedings um creates confidence in the system.
questions of whether there is a reasonable likelihood that electronic media will media will jeopardize the safety or well-being of any individual.
I don't think that's in play here.
Whether there is a reasonable likelihood that electronic media coverage will jeopardize the interests or well-being of a minor. I don't think that's in play. Whether there is a reasonable likelihood that electronic media coverage will constitute an unwarranted invasion of personal privacy of any person. Again, I don't really think that's in play here, judge. So I don't think that the presumption that the media can be present and report on these proceedings has been overcome um under that rule.
Um reliable hearsay judge reliable hearsay is a staple of preliminary hearings. It's important that we all recognize that this is a probable cause hearing um akin to a grand jury grand jury in many respects. Does the state have enough evidence to move this case forward to trial, forward to 702 hearings and different challenges on the evidence? Um, and so that's why reliable hearsay is allowed.
>> Well, Mr. Gander, and I know that this is a subject of the other motion, and so I want >> to both sides will have ample time to to argue that, and I don't mean to interrupt you, but just that that's being reserved for a different hearing.
And again, don't mean to interrupt your flow, but um we're not that's that's a decision for a different day.
>> Fair enough. I'll pivot to my main point in bringing up rule 1102, judge, >> and that is that um if this court were to close um the preliminary hearing or even portions of the preliminary hearing because of using reliable hearsay, that would essentially swallow the rule, swallow the constitutional rights that the public has to be here and to witness these proceedings. So, I I just think that that's an absurd result, judge, that a procedural rule that allows for evidence to come in would negate the constitutional rights of others. So, that's my my primary point with respect to this motion, judge. Um, it's also, and I make this point in our in our written pleading, but the practical effects of introducing evidence at a preliminary hearing is is different than that of trial. We often times don't publish the exhibits uh like we would at trial to a jury where it's broadcast up on a screen uh for the jury and the public to see.
Many of the uh exhibits that will be introduced at this preliminary through 11:02 are like an autopsy report that would not be published. Um lab reports would not be published. Um written 1102 statements uh that the court will receive uh will not be published. And so this idea of prejudice is mitigated uh for that reason alone.
Um, and then on top of that, of course, we would ask the court to essentially seal those exhibits and not allow the the public and the media in the future to inspect them and make copies of them.
But again, I believe the public well, the the law is that the public has a right to be present to observe the proceedings, hear what's going on, watch the arguments, etc. Um, and while some of the specifics of those lab reports, for example, will likely come up in argument, um, perhaps on, um, maybe the admissibility of it if if if objections are raised or certainly at the end of the hearing when arguing bindover. Um, there's a difference between being present in the courtroom and hearing those arguments and hearing references and even partial quotes of that evidence versus examining physically and copying those exhibits and having those. Um, so again, um, I'm going to defer. The media is present. It's my understanding that they want to be heard on this motion. Um this is largely their fight, but again the state wants to uh give the public the opportunity to critique these proceedings um and to have confidence in what's happening in this court and I'll submit it on that judge.
>> Well, I do have a question for you, Mr. Gander. Being that it it is your uh the state's burden to present the evidence at the preliminary hearing, uh do you anticipate any of the evidence being presented that would require a closed portion of the hearing? And and if so, what what mechanism do you anticipate or or you would advocate for to ensure that it's handled appropriately? Judge, I I don't anticipate um testimony that would require closure for it to be admitted uh at the preliminary hearing. Um again, there are going to be exhibits presented. For example, we have two videos. We have five officers that are subpoenaed to testify. Um with respect to 1102, we will we expect to rely heavily on 11:02 in presenting our evidence. Um but these are officers who will testify to personal observations, observations from other officers.
Um they will also provide some foundation um for exhibits that will come in. We do have one video recorded um 1102 statement from Lance Twigs.
Um but I don't believe there's any reason to close um that portion of the preliminary hearing. And your honor, we have provided uh your your honor with the uh physical copies of those exhibits and the electronic copies are on a thumb drive which has provide been provided.
Are we frozen? What happened?
Come on. Come on.
posed as potential evidence the court has explicitly not viewed even if it's in the public sphere just so the court can go in with a clear mind. So, I appreciate that, but I just want to put on the record I I did note that folder and and I appreciate um that preparation, but the court has not and it will not review it until the prelim uh to ensure that, you know, as as a magistrate, I want to make sure that I go in only considering what's been properly admitted. And not to say you wouldn't properly admit it, but I I I just want to go in with that clear mind and only considering what has been admitted uh into evidence.
>> Okay. should the court change its mind and wants to view it beforehand to make a determination that that information and evidence is available.
>> I appreciate that. Thank you.
>> Um there are two videos um as well to answer the your honor's question. There are two videos which depict the killing of Mr. Charlie Kirk that were taken by um people that were present at the event. Um those are sensitive in nature.
Mhm.
>> You're watching the death of another individual, the violent killing of him.
I wouldn't describe them as horrific.
It's not a torture killing as was described in the Archeletta case, but that material is sensitive. And so if that is received by the court, um it would need to be published at least to your honor.
>> And if it's in an open court proceeding, >> the monitors could be turned away from the public's view so that that's not viewed. for example. Um uh but I don't believe that the hearing uh needs to be closed or there's even portions of the hearing that really needs to be closed.
Again, I think there's a middle ground here where the public and the media can be shielded from some of the sensitive stuff. Um but it doesn't need closure.
>> Thank you. Thank you, Mr. Gernander.
All right. uh to Miss Visser.
Oh, I will >> and we'll return to you, >> Miss Fer.
>> Here comes the media, >> council.
>> Thank you, your honor.
>> The court has a challenging task when it comes to requests to close portions of a hearing. The court knows the distinction that's been drawn. When the court ruled on the motion to exclude cameras, it made note of the fact that we were at that time in a bit of a different world.
At that point, we were not talking about a constitutional right to access. In this case, we're back in that world where we are, right, where the public has a constitutional right uh to access court proceedings and court documents.
Um when we were talking about the question as to whether or not the public would be present for the cameras motion before um the state said something in in its briefing and said different hearings operate different ways and with respect to those to certain hearings we're not sure where it falls on the spectrum how strong the the recognized constitutional right of access is for that hearing.
Preliminary hearings are one of the small categories of hearings in Utah nationwide that are expressly recognized as um set apart. You know, it's criminal trials and then what comes next is preliminary hearings. And there's a reason for that. The lead case uh that the court has seen and will see more of is Press Enterprise. That's a US Supreme Court case 478 US1.
Um in that case, the court was remarking on a 41day preliminary hearing that had taken place in California. uh and wanted to make sure that the public had access to that in that case to the transcript of it. And so the reason is that preliminary hearings are often the sole occasion for public observation of the criminal justice system. In a lot of cases, that's as far as it goes. That's all the public may have the right to see. And stripped of the opportunity to participate and watch that, the public may get no insight at all. I recognize in that case something that this court has recognized that access in to a preliminary hearing um and to other court proceedings enhances both the basic fairness of the criminal trial and the appearance of fair fairness so essential to public confidence in the system. Um, we aren't relying on a US Supreme Court case alone as the court knows in Karn's Tribune. This has been brought into Utah and we were told something similar. In addition to kindling public misperception and eroding public confidence, closure of significant pre-trial proceedings like a preliminary hearing perpetuates general ignorance and cuts off public knowledge necessary to a full understanding of the criminal justice system. It's really important that the public be allowed to access proceedings like this one. We've heard the parties reference, the defense reference at least a little bit um part two of a current tribune test. The idea here is that when you are seeking a departure from a recognized constitutional right of access, the party who's seeking closure, in this case, the defense, needs to come forward with specific evidence about the thing that they're asking to seal and what they or close and what the interest is that would justify that departure from the constitutional norm. As the court certainly recognizes, if there is going to be some sort of closure, the court has to go say in a written finding, here's why I am closing this piece off.
It's why this wait and see approach, let's just get to the morning of the preliminary hearing and make this decision won't work. How at that time would the court be able to say, I'm going to go make a written closure finding balancing these interests if you're asking me to do it on the fly?
Means we need to do it now. And that's why this idea of listing every line of testimony, every bit of um witness time on the stand, every potential exhibit, and saying, "Let's seal and close all of it for five, six, seven, eight different reasons," makes for a real mess, right? It makes a real challenge to say, "So, to be clear, you want me across 34 exhibits and eight potential objections to make written findings that justify each one of those?" Um, I can imagine a world, and I know the court can too, when there is an exhibit, a portion of a bit of testimony where it may be truly unique and special enough that the court would then need to hear a specific argument. But the burden to do that is on the party seeking closure because of the constitutional rights at issue here. In order to do that, the party seeking closure needs to have evidence of two types. One, evidence relevant to the nature and extent of adverse publicity that may be generated by the open pre-trial proceeding. So, I need to come show you what it is that's so problematic about her. And then, as the court recognized, specific evidence relating to the availability, feasibility, and efficacy of alternative means of selecting jurors and conducting the trial to assure the integrity and impartiality of the jury.
That's from page 523 of Kern Tribune.
Need to show up with both those types of evidence. The court knows what the normal alternatives are because the court has thought through those and mentioned those in its ruling before. If there is evidence as as it should and as it can under our system that becomes public during these pre-trial proceedings, you hear a witness testify about something, you hear about a piece of evidence that's introduced, the expectation is that to the extent that that has some potential prejuditial power, you deal with that through these normal tools of jury selection, it's an expanded vadier, detailed jury questionnaires, things of that sort. We mentioned in our briefing what you often see in Utah cases is they say by the time you get to trial parties may uh potential jurors may say I remember hearing something about this case but I no longer recall any details right and I certainly feel comfortable being able to set aside um any prior knowledge that I had and focus solely what is in front of me at this case that's the preferred narrowed means so in order to justify a ceiling a party seeking that ceiling or that closure needs to come and say why that isn't enough why for this specific piece of evidence why for this specific stretch that won't work again. I can imagine a world in which a showing like that is made but we are nowhere close to that as far as granularity as far as satisfying that burden as far as with specificity. Here I do want to mention briefly Archeletta.
Both sides have talked about this different type of request, right? Um I want to stress that in most cases and in this instance, what the what the media is asking for is essentially occupy the role that a member of the public would occupy if they were sitting in this courtroom. So if things are said out loud or presented to the court in order to justify or try to meet the burden of preliminary hearing, the press acting as a proxy for the public would have the opportunity to watch, listen, consider and report on them. Court knows that if a member of the public, as much as we appreciate them being here, said a preliminary hearing, that piece of evidence up there on the stand, what's interesting to me, can I come up and hold it? The court would say, no. Um, this we're trying to preserve the integrity of this proceeding. And so you can listen to what you're seeing in the courtroom, but you can't come touch it or copy it or take it home with you, right? Um that's what was at issue in Archeletta. Um there were some pieces of physical evidence um that there had been a request by the media to actually handle inspect uh copy and in that court the court said in that case the court said well we'll treat that differently.
Uh we think there's some different considerations at issue when you are asking to physically handle exhibits.
Nothing like that is at issue here. The press press has not in its briefing and does not here today seek to be able to do that type of hands-on examination of evidence or copying that was that issue in Archeletta. What the press is asking for here is what the press so often asks for which is we are a proxy. We are here to help assist to be the eyes of the public to help them observe those sorts of things. So for that reason, the language in Archeletta that says there's no constitutional right to access the exhibits in that way is simply not in play. It's simply not before the court and the court does not need to reach that question of what if somebody asked to hold or copy one of the exhibits that's being introduced at this preliminary hearing because no such request has been made here.
I note that there's been a lot of hypothesizing about what will happen with these exhibits. A lot of exhibit specific arguments about rule 420 and various subcategories of private or protected justifications.
Um I don't want to get in the weeds here. Could you could go through exhibit by exhibit, argument by argument. What I want to stress though is that I think that the cleanest path and the one the only path that the court is really equipped to be able to take at this point is to be able to say listen what is presented in that hearing absent any sort of narrow showing of closing or sealing a specific moment um should be open. The press should be able to see what a member of the public would be invited to come in and see on that day.
and that would be discussion of um these exhibits um of the and being able to hear the testimony.
The fact that some of this information may eventually be inadmissible does not constitute a link to showing reasonable likelihood of prejudice at trial that would deprive a defendant of a fair trial right party cannot simply say it's possible that at a preliminary hearing some evidence that is eventually deemed inadmissible may be presented. As the state pointed out, that would be true in every case. Um, that can't be used as a basis for uh closing or sealing a hearing in this case. Um, the stakes here are high. Um, Karns Tribune says it bluntly, "Democracy blooms where the public is informed and stagnates where secrecy prevails. Closing these proceedings to the public will not improve efficacy of these proceedings."
In the press enterprise case, they went 41 days in order to make sure the presentation was done appropriately. You know, the court has no intention of using 41 days in this case, but saying it might slow things down if we had to be careful every time we close the proceedings is not a justification to close the entire proceedings. It might slow things down. It may force parties to on occasion say, "Let's talk about this specific piece of evidence." But because that's hard doesn't justify saying, "Let's close the entire thing."
The court has correctly not taken that path in the past. Should not take that path now. Thank you for hearing us as always, your honor.
>> Thank you, Miss Visser.
>> Thank you, your honor. Um, I just want to address a few things.
First, um I would propose that there could be um a solution whereby we have portions that are closed like preemptively closed and portions that are preemptively open if necessary. Um, I just also want to caution the concern about admitting some of these exhibits that are protected, private, safeguarded, um, and the testimony that may accompany those being admitted. It sounds to me like the state doesn't intend to essentially do an end run around those classifications and have people describe those or read those out out loud. And that would be our preference as well. um because those are classified as private protected and safeguarded.
So we would ask for that solution to be implemented as well.
>> And and to that um just as you're talking about that I'm I'm just uh and just kind of thinking out loud if and I always encourage parties to see if there's any stipulations to exhibits. You know, for jury trials, I always encourage the parties to get together and to see uh and I'm not saying you need to, but perhaps that could be something that would help resolve some of these issues if there is that that removes the need to go into detail or even to go into what could be problematic foundation laying again. Uh but I'll leave that to the parties. The court is not intending to insert itself in in those those uh conversations. No, that's a good suggestion, your honor, and we're definitely open to having those conversations in anticipation of the prelim to make things simple and and move quickly. For sure.
>> Okay.
>> Um, as far as uh the rule 4-41.01, the electronic media coverage, I just want to reiterate that issue is not before the court right now. Um, there may come a time when we need to address that when the media files their request as they inevitably will. This court made a detailed order about how we are to address that and so we'll address that at that time. I don't think it's a basis for this court to deny our motion for closure. It is a very different issue, right? whether or not the media are allowed in the courtroom versus filming and live streaming is very different. So I did we did not go through those factors. Potentially we will in the future.
So, your honor, we are asking for some reasonable uh solutions to prevent information being out in the public from the preliminary hearing that likely will not be admissible at trial. Hearsay from other officers is obviously not going to be admissible at trial. Those individuals will have to testify. 1102 statements clearly not admissible at trial. Those individuals will have to appear. we will have the right to confront them, cross-examine them. Um, so we're asking the court to take measures to ensure that that information is not published from the preliminary hearing. That is our primary concern with the motion to close. So, we are asking for that.
>> Thank you, your honor.
>> Thank you.
>> All right.
All right. Thank you to the parties. I appreciate uh the argument and briefing that was done and acknowledge your hard work and diligence. The court will take both matters under adisement and issue a ruling on WebEx. And uh council, I I want to check with you. I have um I anticipate approximately 30 minutes as as I've done in the past in either a morning or afternoon setting on June 1st. Is there a preference of the parties?
>> Mr. Novak, >> only that I presently have a hearing scheduled for the afternoon late in the afternoon of June 1st, California time.
>> All right.
And first is there to I mean we've had a traditional way of doing this but do the parties have any objection for my ruling to be on WebEx to accommodate all the parties >> but for Mr. Robinson.
>> All right morning June 1st.
>> All right. How how about 10:00 a.m. on June 1st for WebEx hearing and and again I I wish to be thorough to defense. Uh, what is your election as it relates to Mr. Robinson for that hearing?
>> Your honor, if he could just be present with no video.
>> Okay.
>> All right.
All right. Let me look to All right. So, I would like to set an in-person hearing for defense's motion to challenge the constitutionality of the Utah Rule of Evidence 1102, Utah Constitution, Article 1, Section 12.
And if granted by the court, if I rule on June 1st uh for an evidentiary hearing, I would also like to hold that at the same time. Again, the court is not making its mind up. It's just indicating that if the court elects to hold that hearing, it would be on that same date.
And we're looking at June 12th and um the availability of the parties.
All right.
All right. Um and and what I'm trying to do is address these issues prior to the preliminary hearing and allotting time to uh take the argument on consideration. It it's the court intends to give serious thought and consideration to the motions and to the oral argument. So, I'm trying to space it out so the court can do that uh and and issue its ruling prior to the preliminary hearing. So, for the June 12th, we'll start at 9:00 a.m. and uh we'll set aside the majority of the day.
on the day of the hearing. I'll uh state the the time constraints that we have, but uh as as done today by council, I appreciate your succinct arguments. Uh it is appreciated and and that reflects your experience and and professionalism as well. With those two dates set, June 12th at 9:00 am for the evidentiary hearing on the motion and potentially evidentiary hearing for the order to show cause and ruling on June 1st, 2026 at 9:00 a.m. on WebEx or a ruling on today's proceedings. Uh do do either party wish the benefit of the record at this point?
I did. I wrote down nine and I said 10.
So, it is 10:00 a.m. on June 1st. Thank you for that clarification. And on June 12th at 9:00 a.m.
All right. And as it relates to June 12th, uh as it relates to Mr. Robinson, what is uh the request of defense?
>> Governor, we would ask for order trans.
All right.
>> All right. I'll go ahead and grant that.
All right. Unless there's anything further, uh, again, thank you to the parties being present today. And the court will be in recess until June 1st at 10:00 a.m.
>> Okay, that's it.
So, the judge didn't resolve the issue as to what parts, if any, of the preliminary hearing would be closed. The defense and the prosecutor are going to get together and discuss some of it and see if some of it can be stipulated to. Uh, I thought both arguments were really very good. Uh, and I thought in particular the argument that was made by the state and media that you there's hearsay at a preliminary hearing. So, if you're going to say no hearsay, effectively, you've taken out the public first amendment right uh by a court rule. So, I really thought that was a good argument, but I thought they both sides did well on it. of questions.
Thank you very much, Peachy Clean. I appreciate it.
Questions from anybody or um Well, here we go. If the issue is that the possible jurors might be tainted due to what they initially said in to the media at the hearing, if they haven't read anything about this, it doesn't matter what they said.
Uh I'm not sure I quite understand that.
Let me read it to myself.
Well, yeah. U okay. Lasser Sophia. And they did talk about that. Uh some of the jurors won't have heard it. some of them won't remember and that and the that of the of the lawyers the media lawyer made the made the most uh pointed argument about this uh well I guess the state did also that the way you handle it is at voadier of the potential jurors you do an expanded questionner questionnaire you ask them more questions during voadier about what they heard what they remembered and so the potential prejudice to jurors um or the the prejudice to potential jurors can be handled effectively on voadier. You don't have to close it in advance. The correlary argument was really the same thing, which is if you say we're going to keep hearsay out, essentially you're saying uh that the hearing is going to be closed because hearsay is routinely introduced at a preliminary hearing.
So uh the the constitutional rule is the defense has to make a very specific pointed factual argument why this hearing why this portion of this hearing is different from the typical hearing where the court has said it has to be open. point it factual basis and then two has to show that there isn't any other way to do it that will protect the sixth amendment right of the defendant but intrude less on the first amendment right of the public. So that's the showing that the defense has to make.
And so the hearing u on um uh June 1st um where they're going to look at I believe the constitutionality of the rule the court rule uh which allows hearsay um we'll get into some of that.
If the court were to rule, it's unconstitutional, which I very much doubt, then the other the other issues aren't going to matter because the police officer won't be able to come in and say, "Here's what witness one said.
Here's what witness two said because it would be hearsay."
And then uh they still need an evidentiary hearing on the motion and that's what they're going to do on June 12th and maybe they'll get to the contempt motion at the same time. Well, Susan Glover, he I think he's going to keep it open to the extent there isn't a very strong showing as to why it needs to be closed and why something else won't work. Now, right now, all they're talking about is opening the courtroom at all. That is, if you're a member of the public or you're a member of the media and you go down to the courtroom, the door is going to be locked. You can't get in. They haven't talked about the next step which is to the extent it is open to the public in the courtroom.
Is there a const what is the level of the constitutional right to stream it?
Now, it seems to me it should be the same answer, but the defense, I'm sure, will argue that the potential prejudice to the defendant's sixth amendment right of the media in the courtroom is different in terms of the impact than if you stream it. Because if it's the reporters in the courtroom, they will write it. It will be printed. And that's different in kind from this is the defense argument from streaming it to the media generally or not to the media streaming it so you and I can watch there will be more of us doing that. Uh that's the I think that's the that's the the the gist of of that other part of the argument.
Uh what did you think of the media lawyer? Thought he was good too. No cameras cam cameras allowed here at GBGB. Great Britain, Great Britain. Is that what you're saying? Um, no. I did say I thought all the lawyers were good.
Then that included the media lawyer. I all thought they did a really good job.
I was really impressed by all three or all four because we had u the other lawyer on the defense side earlier. So, little Miss Redville, but thank you for thanking us. Uh, so if there are no more questions, it's 1:10 here on the east coast. It's 11:10 in Utah. It would be 5:10, 610 in Great Britain, uh, 710 in Italy and in France, and I'm sorry, I don't know what the time what the time zones are other places. So, I'm going to I'm going to stop where I while I think I'm still ahead. So, if there are no more questions, I'm going to say cowat and I'll be coming back and covering this at 5. So long
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