Court Hearing Addresses Media Access, Publicity Orders, and Preliminary Hearing in State of Utah versus Tyler James Robinson

Court is now in session. Council, if you could enter your appearances, please. >> Your honor, Christopher Ballard, Ryan McBride, Chad Grunander, and Lauren Hunt on behalf of the state. >> Good afternoon. >> Good afternoon, your honor. Kathy Netor, excuse me, Richard Novak, Stacy Visser. On behalf of Mr. Horizon. >> Good afternoon. >> Good afternoon, your honor. Jeff Hunt and David Ryman appearing on behalf of the media interveners that are identified in our motion papers. >> Good afternoon, >> Michael Jud, your honor. Parsons Bailey and Latimer on behalf of another set of media interveners also identified in the in the brief. >> Good afternoon. And I recognize Mr. Robinson in the courtroom as well. Good afternoon. And to for the benefit the record, calling case 25143576, State of Utah versus Tyler James Robinson. Council, as we're moving forward today, I want to give an an overview of what we anticipate doing. And it comes down, we're addressing three issues. The first is the October 14th, 2025 audio recording of the closed hearing and the October 24th, 2025 transcript of that hearing. The second is a state's motion to amend or clarify the publicity order commonly known or referred to as the gag order. And finally, the motion for limited intervention, a request for notice of motions to close, seal or reclassify um and which has been filed by the media organizations and by council who are present today. So as we begin the first part is we'll begin by addressing the October 14th audio recording and the October 24th transcript. This portion of the hearing will be closed so that I may hear from the parties regarding which portions of the recording uh the record should remain sealed. All members of the public and the press will be excused and the hearing will not be broadcast. This is because I need to hear what should or should not be uh sealed or protected. And it would uh not benefit to have everyone listen to what should be sealed. And so after I've heard argument, we will invite all parties or the public and the media to come back in and the hearing will resume transmission. We will then take up the motion for limited intervention followed by the state's motion to amend or clarify the publicity order. These portions, the last two portions will be open to the public and to the press. After hearing argument on all three matters, I will take a brief recess and then return to issue my ruling today. We will then stand in recess. So, at this point, we'll go ahead and excuse the public and the media, and it is the court's order that transmission be terminated temporarily. >> Your honor, I we have one request with respect to the closed hearing. May I be heard on that? >> Uh, yes, councel. >> Thank you. Richard Novak for Mr. Robinson. Um, Mr. Robinson has some immediate family members who are present, his father, his mother, and his brother, and we would ask the court to permit them to remain in the courtroom during the closed portion of the hearing. to the state. >> My only concern with that, your honor, is that we're going to be talking about court security measures and um I don't know that we'll have to go into a lot of detail about that, but I do have concerns about uh those issues being discussed in public. >> All right. Mr. Novak, do you have authority that supports allowing them to remain in a closed hearing? >> Uh, no. I think it's subject to the court's discretion to decide who is and is not an appropriate member of the public. Um I think they have a unique relationship with Mr. Robinson and they're they um would certainly abide by any orders the court makes concerning um disclosure of what is discussed in closed session, but obviously it's up to the court. >> Thank you, Mr. Novak. I'm going to rule that uh they will be excluded as well. It is just given the nature and the sensitivity of it. I believe it is appropriate to treat all parties and all in the public equally though I do recognize uh their relationship with Mr. Robinson. Thank you for your request. All right, we will go into the close session. We're going back on the record in case 25143576, State of Utah versus Tyler James Robinson. I note the presence of council that previously entered their appearances. Uh we have come out of the closed session and uh concluded that business. However, uh the court became aware of an event that happened before. And my understanding was during the open uh portion of this hearing earlier that there was a violation of the standing decorum order as it relates to transmission of these proceedings. Uh I want to hear from council and and then I will make a ruling concerning that uh shortly thereafter. Miss Visser. >> Thank you your honor. Um, I'm referring specifically to Rule of Judicial Administration 4-41.01. Um, this gives the court discretion to terminate or suspend electronic media coverage at any time without prior notice. If the judge makes particular findings and that the specific circumstances warranted, um, it is our position, the defense position that there has been a violation of the decorum order. It is our understanding that those live streaming this uh signed and declared that they would follow the decorum order and they violated it. So we are requesting a sanction. We believe these court's orders are binding and they need to be respected. Um we also believe that it threatens my client's right to a fair trial. It's the whole reason we filed a motion in the first place to remove his shackles. It's our understanding that his shackles are visible. It is also our understanding that potentially some audio from council table was heard. Um we are definitely taking more measures on our own to ensure that that does not happen again. But there has also been some filming of computers and materials at council's desk. That's entirely inappropriate. And I think everybody in this room will agree that's entirely inappropriate. So we are asking for some remedial measures here. We're asking for it to terminate for today. Um and we can proceed after that. >> Thank you, Miss Visser. To the state. Your honor, uh the state as stated earlier, we uh believe that the court's order was very clear and uh if there has been a violation of that order, then we agree that there needs to be some measure taken. Um we'll leave it to the court to decide the appropriate response to that violation. But we agree that any violation of the court's order needs to be addressed. >> Thank you, Mr. Ballard. To the press. Attorneys for the press. Your honor, Jeff Hunt for the media interveners. This is the first time that we've heard about the violation. We've not had an opportunity to look at the video or investigate the audio or look at the the capture of the computers, but filming of the uh the inadvertent filming of the shackles. I did talk to the pool photographer. My understanding is that there was a zoom out shot that did inadvertently show the shackles. That was improper. Uh that was inadvertent. Um and we apologize for that. Um they've taken measures to make sure that the pool video that is disseminated to the rest of the pool does not contain any capture of the defendant in the shackles. Um, we can't do anything about the live stream of course, but we can control what the rest of the video is that we capture and disseminate. So, that is being done. The audio for council, my understanding is the only audio that they picked up was from council's microphones. I don't have any further information about that and whether that's a violation. Filming of the computers is not a violation of the decorum order. if you if the if the capture can show the document that council is looking at then that is a potential violation. So I just don't know how much detail the shot is that that is the of concern to the court. But I'll just I'll just say that we reiterated as soon as I heard this from Mr. Ballard uh with the pool uh representatives that this is very important to follow to the letter the court's EMC order. They understand their obligations. They take that very seriously. They're not perfect. Mistakes happen. We're trying to correct as much as as we can on that. Uh but we think termination is not an appropriate remedy. an admonishment from this court, a reminder that they need to follow to the letter the court's EMC order is appropriate. That's the message that council has delivered uh to the media representatives and and the pool operatives and we think uh that is the appropriate remedy. >> Thank you. Thank you. I just want to make it clear, we're still receiving messages that shackles can be seen on the live stream um as we restarted. So, it's still a problem. >> Thank you. I appreciate all parties weighing in on this important matter. And I I find that uh there was a violation of the standing decorum order that was in effect as of October 30th, 2025 based off what's been profered as well as the EMC order uh signed by the court. As previously stated by Miss Viser, the court does have discretion in determining whether to terminate uh the broadcast of these proceedings. And again, if there's specific circumstances uh warrant such action that the court would need to make findings in order to do so. I find that excluding the court the cameras from the courtroom uh would be disproportionate for this hearing. I find that giving uh making it very clear first that the transmission cannot begin until court is in session and must end uh before as the court ends the session and cannot be filmed before or after. Uh the filming of as previously stated in the decorum order and EMC must be followed to the letter. The sanction uh for today uh is that this qu camera will be relocated away from defense table to uh to where the baiff is Mr. U where Jeff is standing over here. I want to immediately address any possible transmission of shackles as previously stated by council and uh remove the possibility of capture of screens of the computers at defense council's table as well. In addition, if there's further violations of the standing to quorum order, this court does have the right and will exercise termination of broadcast of these proceedings. And and I I simply want to put all parties on notice to the press, to all parties, that this court takes this very seriously. While the court believes in openness and transparency, it needs to be balanced with the constitutional rights of all parties in this case. As such, we will take a brief recess to allow the relocation of the camera and to the place indicated by the baiff and then we will resume uh these court proceedings. Uh I am anticipating this take perhaps five minutes, >> probably less. >> All right. and then we'll come back on the record and handle the remaining of this hearing. I appreciate the patience of parties as we move forward. We are are trying to do the best we please be seated. Court is now in session. All right, let's move to the next matter before us. And of course, I'm looking for my notes and they've disappeared. But that's okay. It happens. All right, let's go ahead and address the state's motion to amend or clarify the publicity order. And I'll hear from all parties. And I know that I know it has been briefed but and responses but I'll hear brief argument and then we can go from there. Mr. Ballard. Thank you your honor. Uh with respect to this motion, I think as we've expressed in the past, we all everyone in this room shares the same goal, and that is to ensure that there's a fair trial that happens in this case. And we recognize that the court's uh pre-trial publicity order was is intended to further that goal. And again, as I've stated before, the state plans to try this case once. Um the state is also committed to complying with its eth ethical duties with respect to pre-trial publicity. We have complied with those duties. We will continue to comply with those duties. Um the the issue we bring before the court here is that there's one portion of the pre-trial publicity order that can be interpreted to reach beyond those ethical requirements and um what and have the effect of being what would be an unlawful order, an unlawful prior restraint on speech. And our goal therefore is to get an order that's clear, that's lawful, and that the state has the ability to comply with. And the issue with the order that the state has is the use of the term witnesses in the order. Um, we believe that terms vague and ambiguous. Does it mean anyone with relevant information about this case? Does it just mean uh those people that are going to be subpoenaed to testify in this case or is it limited to just the prosecution team? And I think as we've expressed in our um filings, we believe that the court intended that that term just be limited to the prosecution team because that is the way that rule 3.8 reads. Rule 3.8 8 uh of the rules of professional conduct that deals specifically with requirements for prosecutors um talks about investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in so in other words, the prosecution team. And there's no rule or case law or statute that expands the prosecution's duties beyond um that group, the prosecution team. So um with respect to clarity, we're seeking clarity as to what exactly does the court mean by witnesses? And we think the court just means the prosecution team because if the that term stretches beyond just the prosecution team then the order is written uh we don't believe is a a valid and lawful order because it would result in a prior restraint on certain speech and at the very least would have a chilling effect on that speech. Um if the the prosecution agrees that we have an ethical duty to take reasonable measures to make sure that those who are identified with the prosecution team are alerted to the requirements of the court's order and to make sure that they do not make a statement that the prosecutors themselves would not be able to make a public statement. Um, but if the order extends beyond that, then we have concerns because a prior restraint is an order that forbids certain communications in advance of the time that they are to occur. And uh as the court of appeals has recognized, the Utah Court of Appeals has recognized in state versus LM and widespread publicity in a case does not itself justify a prior restraint. the as um the United States Supreme Court has recognized in Nebraska Press Association there there's no justification for a prior restraint unless it's clear that the the fer further publicity unchecked would so distort the views of potential jurors that you couldn't find 12 jurors who could be fair and impartial. That's the high standard that applies in this case. And so in order to apply a prior restraint to persons beyond the prosecution team, the court would need would need to engage in a very detailed and demanding analysis. The court would have to make a factual finding of necessity that the speech that would be restrained poses a risk of material prejudice to the ongoing judicial proceedings. The court would need to make findings that there are no less restrictive measures and that the prohibitions are likely to prevent the uh potential prejudice and that whatever prohibitions this court decides on are very narrowly tailored. And uh as the state has explained, the Spencer versus State case from the Arkansas Supreme Court that just issued earlier this year is very helpful, I think, on this issue in explaining um the analysis that applies to various different people that might be associated with a criminal case. You have attorneys uh that category of part trial participants. Certainly the court has uh the highest degree of um ability to be able to restrain that the speech of attorneys and in fact as I've expressed the um ethical rules require that. But when it comes to trial participants like witnesses uh the standards are more demanding as far as restricting the speech of trial participants. And as um SP the Spencer case pointed out, non- attorney trial participants, the court can impose a restraint on their speech only to the extent that the the court first finds that any speech by those non- attorney trial participants poses a serious and imminent threat of material prejudice to the ongoing proceeding. And I think the court also needs to note that uh there are there are several people associated with this case who have um very significant interests in exercising their first amendment rights in talking about how this case has affected them. And of course um can't say that someone's one person's first amendment right is more important than another person's but there are certainly some people here who have a larger uh some people involved who have a larger um or a greater interest in in speaking than others. And so I think the court needs to take that into consideration if this order is meant to apply beyond just the prosecution team. And then finally, um, as far as making the order, so we need a a clear order. We need a lawful order, and then we need an order that the state can actually comply with. And the state recognizes that there are serious sanctions that this court can impose for violations of a court order, as we've just seen. And so we want to avoid these. We want to avoid litigation over whether there's been a a violation of the order. And as it stands right now, we don't believe that there will be any issues if the court limits the term witnesses to just the prosecution team. We can comply with that order. um it gets more difficult for the state if that if the term witnesses then applies even broader um at this stage of the litigation for the state to be able to comply with that order depending on how the court clarifies what witnesses mean. Um score have any questions for the state? >> No. Thank you. >> Mr. Novak. >> Thank you. >> I'm going to try to be brief because our views on the propriety of the court's order um were set forth in a publicly filed document um which um of course the court has reviewed. And the first thing that I want to say is that the order that the court issued is not a prior restraint on any member of the public. Uh and it's certainly not I think as the state's motion suggested some sort of a prior restraint on the the press. This has nothing to do with the press. Um the order as we noted in our papers is directed at the conduct of and the court's expectations for counsel. So even if under that order that the court issued, somebody who we could all agree is a witness within the court's definition of that um made public statements which implicated Mr. Robinson's fair trial rights. the potential sanction is on the party who had a duty to make a reasonable effort to notify witnesses that they should not be doing so. Um, if I represented a witness um who was accused of saying too much publicly, the first thing that I would tell this court is the order isn't directed at the witness. The order is directed at the council for the parties. There may in the future be some theoretical situation where the court issues orders that um control the statements or conduct of specific people but this or other than council but this order is directed at council and we have no meaning Mr. Robinson's defense council have no problem complying with the order and we also think that we understand um what a witnesses when when the court uses that term. So it is our view that the court's order um is not over broad. It's not vague. doesn't put um the states um the state or the state's attorneys in some untenable position. Um, and I think it's a little bit it's a little too simple to say witnesses are either everybody under the sun or people who are under subpoena at the last second because council have not only the training but a duty to figure out along the way who the potential witnesses are and to notify those people. And yes, down the road maybe there's going to be an issue and maybe um an attorney on either side of litigation is going to have to explain to the court when a particular person did or did not become a potential witness in the eye of in the eyes of that party. Um that doesn't make it impossible for the state to comply with the order. It just means that the state needs to be thinking along the way about who its witnesses may be. And that's why in our papers we refer to it as a um potential lay witness because we believe that the court intended it to go beyond members of the prosecution team which are law enforcement officers, retained experts, retained consultants. Um and um and we don't believe that that creates an enforcement problem. We don't think it creates a compliance problem. Um we noted in our papers and I'll emphasize here again that the court's order actually places responsibilities on defense council that the rules don't. the rules have special um um guidelines for the prosecution and the court has expanded that to include the defense and and we don't have a problem with that. I also think that the standard that the state is suggesting for when a potential lay witness as as we've defined that in our papers um may make public statements that violate the court's order. Um the best standard is actually the one that we believe um the court should look to which is the standard set by the 10th circuit because as the state points out it may be that there isn't any Utah law on this issue. So, it seems to me that the closest um source of authority on on this um constitutional question um is going to be the 10th Circuit. And that's the case United States versus Tarina. And I'll spell it. It's T I J E R I N A 412 Fed 2 Second 661 10th Circuit 1969 where the court says that um the constitutional balance between the First Amendment rights of a non- attorney participant and the defendant's right to a fair trial are properly balanced where extrajudicial statements present a reasonable likelihood of prejudicing a fair trial. That is a more protective standard than that which appears in rule 3.6 and we think it's the appropriate standard which should be applied here. Um and um that's part of as we've told the court before um a motion that we will bring because we actually think that while the court's order is wholly appropriate, it's not vague, it's not over broad, it's not a prior restraint, and it doesn't create um a lack of clarity for the state. um we would like it to be a little bit broader in in other areas um especially concerning the standard to be applied and the definition of what is um the prosecution team but that's that's not gerine to hear so we think that um while we understand the state's concern we think that their motion should be denied I think at the last hearing the court actually clarified verbally from the bench what it meant by a witness and I think that's pretty close to what we described in our papers as a potential lay witness. Um, so I don't I I feel like if I say anything more, I'm going to be reiterating again what's already in our papers. If I've muddled it, I'm sure the court will tell me and I'll clarify it. I I hope I haven't. >> Thank you, Mr. Novak. >> Okay. Thank you. >> All right. Uh, and we'll turn to the last matter. Uh, anything further, council? Yes. Thank you, your honor. I just I do want to point out that the the court's order as it's written does impose limitations on speech. And the issue here is whose speech? Is it just the prosecution team members or does it extend beyond that? Um and limitations on speech are a prior restraint. The court's order says um that if you look at page two of the order, it specifically talks about lawyers that lawyers cannot make a statement that would um violate rule 3.6 and need to inform witnesses uh that they cannot make similar statements and then requires uh the parties to inform um lawyers, excuse me, I'll just read it. Lawyers participating in the investigation or litigation of this case shall inform all witnesses and then the list that I read about the prohibitions contained in this order. So the order is prohibiting speech [snorts] and because if it extends beyond the prosecution team, it needs to have the findings that are required for that kind of prohibition on speech. That's what we're asking the court to do. >> Thank you, Mr. B. >> Thank you. All right, let's turn to the final matter before this court, the motion for limited intervention and request for notice of motions to close seal or reclassify. And I'll hear from the parties on that. >> Thank you, your honor. Uh David Ryman representing the news media. Mr. and I represent different groups of clients. So, I'm going to invite him if I miss anything to to weigh in after I'm done. But, I'm my intent the issues are basically the same. So, my intent is to address them for all of the the uh um interveners at once. And I'll be very brief. Um we have only ever sought in this case uh limited party status. That is what we um do in every high-profile case that involves these type of closure issues. Uh we are not seeking to be parties for all purposes. We are just seeking to be parties for the purpose of showing up um and being heard, which we unquestionably have a right to do. We unquestionably have standing. That is settled law in Utah. And um the filing, the last filing at least that we got from Mr. Robinson's team that just came in, I don't know if it was a couple days ago, basically gets there at the end where it says, look, if you're going to if you're going to grant them intervenor status, um it should just be limited. That's all we've ever sought. And so the the question that was raised in the in the only case that they cite, this FL case from the Utah Supreme Court that addressed whether we wanted to allow full party status under rule 24 of the civil procedure rules in a criminal case. They said we don't need to do that. Um the the woman in that case just needed limited party status. And so in a way we're not really the state really hasn't disagreed with this either, but we're not really disagreeing with um with Mr. Robinson's team. Um we have explained in our papers um that uh we've cited the court to extensive authority saying that this is the procedure uh to use. It's the most efficient procedure to use. Otherwise, I don't know what exactly the suggestion is for Mr. Robinson's team that we were that we're supposed to do from here on out. But it kind of sounds like just this sort of ad hoc show up anytime you happen to see something on the public docket that might affect the public's rights. And that's just not the orderly way that this this typically happens. Um, the other thing, as I've mentioned in our papers, that it does, um, is it allows for the media to be able to take an appeal of a closure issue, um, without having to rely on the court's extraordinary red jurisdiction. And um, that was what they had to do in um, in either Kern Tribune or Bullock where the media was not granted um, uh, party status. And it is the situation that happened in FL um where they had to review her claim regarding records under extraordinary writ um invoking their appellet jurisdiction because she was improperly denied limited party status. So all of that authority supports the process that we are requesting um in this case. Uh we think it's the most orderly way to do it. And and I'll end just by saying you know there's been some discussion and especially from Mr. Robinson's attorneys about what rule it is that you need to do this under, whether rule 24 applies. They seem to suggest that it doesn't. I will just point the court to two different rules um that uh give you the authority to um to to do what we're requesting aside from rule 24. Rule 24 is in the civil procedure rules, but rule 81 and particularly subsection F of that rule says that the rules of civil procedure govern in criminal proceedings where they don't conflict with a rule of criminal procedure. That's the case with rule 24. That's why um courts in criminal cases um have relied on that rule. The other one is rule 31 and that's in the criminal procedure rules and that gives this court um the discretion if it's not inconsistent with the rules to fashion uh remedies um and to deal with civil procedure not civil procedure but rather just procedural matters and so that is essentially what um happened in the FL case um which is that you know whether you do it under rule 24 whether you do it as a judicially created you know remedy it doesn't matter it's the same it gets to the same place which is just that we our um interveners for the very limited purposes that we've uh set forth in our order. Um we're not going to be here at every hearing arguing. You know, we didn't take a position on the the gag order motion that you just heard. we are only um planning to appear and argue um so that the court has the benefit of someone who's representing the interests um against closure because as you know and this is sort of why we're here today a lot of time this just happens by stipulation because these you know the state and and Mr. Robinson's lawyers, they may may not want to fight over a particular issue. And so it really is a situation where no one really represents that interest. And um the purpose of this whole process is to give the court the benefit of the briefing that we've submitted and the benefit of arguments um to represent the public's right uh to attend these proceedings. So um unless the court has any questions, that's all I have. >> Thank you. >> Thank you. >> Uh to the state, Mr. Beller. Your honor, as as the state briefed in uh briefing on a prior motion, I think it's clear that um parties have the or excuse me, outside entities have the ability to intervene in a case as a limited purpose party when there's a statute, a rule, or case law that authorizes them to take specific action in a proceeding. And there's wellestablished case law that allows the media to intervene to be able to be to appear and be heard on uh matters of public access to court proceedings and to court documents. And rule 4-202.04 of the rules of judicial administration also make it clear that the media can appear and do just exactly what they've done in the closed session that we held earlier. Uh so it doesn't make them a capital P party to the case. It makes them a limited purpose party and they certainly have the right to be able to do that. >> Thank you. >> Thank you, Mr. Mal. >> Miss Viser, >> thank you your honor. Um, so I just want to clarify the issue really, um, if we boil it down is if these 23 media entities have met their burden to be a limited purpose party in this case. And I think another part of that is what that means. Um, and really that is what we are primarily concerned with. What does that mean? What does that enable them to do? what um jurisdiction is this court exercising over them as a result of them being a limited purpose party because I do believe that is another aspect of asking to intervene in a case. Um I do think that rule 24 does not apply here. I think that's what we learn from the Supreme Court. They don't want individuals using rule 24 of the rules of civil procedure because it's too expansive. It's about broad entry into a case for many purposes. In the instances where our courts have allowed intervention into civil cases, and I want to be very clear here, the case law is a is in the civil arena. There are very few instances where we're dealing with this in a criminal case on appeal. Um, so we're a little bit in the dark and we're asking this court to kind of wade through and make a decision that potentially hasn't been made before. But I would ask the court to be very clear, no matter what it does, on what the media can and can't do in this case. And it sounds to me like the media has somewhat conceded that their role in this case is under rule 4-202.04 and their role is to have a voice regarding closure which has already happened today and will surely happen again. We have no objection to that. And to be clear, we're not objecting to the court's order about notice. We will provide notice. We will follow the court's order. We have no problem with it. But we do want this court to make the procedure very crystal clear. We want time frames. We want orders saying this is when you need to respond so that we don't end up with filings like we did this week very shortly before the hearing that we have to rush to respond to. We're all attorneys. We all know that these things happen from time to time. Um and we're not unreasonable folks. if they reach out to us, we will grant reasonable requests for extension just so everyone is aware. But there was no communication. So I want it very very clear what they they can and can't do. It's less about semantics. This isn't about semantics. It's about substance. What are they allowed to do? If this court wants to call them a limited purpose party, that has to be well, it's so you can exercise your rights under 4-202.04. And in doing so, this is what you need to do. That's what we're asking the court to do. Um, and I also have some practical concerns that maybe need to be addressed with the court's clerk. Uh, for example, are we adding all 23 media entities to the court docket? Um, will they have access to all of the filings? I have had instances in the past where unfortunately parties have been added to a case and still receive um documents that are intended to be private or non-public. I'm very concerned about that. Um, so I think it would be appropriate if they are going to be added to the docket that it be um, reasonable perhaps just the two entities that are requesting, the two conglomerate entities that are requesting and that there be a an order from the court saying if they receive something that they shouldn't have, they notify us in the court immediately and they delete it. They don't review it. um at a minimum I think that's necessary but I also think it would be reasonable for this court not to put them on the docket for that very same reason. So we don't think that they should have permanent status in this case. We don't dispute that they are going to be here. They're already here as we well know. But we do think how that happens is important and that this court should exercise its authority to make very clear what everyone's roles are here. And as I believe they put in their briefing that they are neutral observers. Neutral observers. We don't want the chaos that is out in the media in this courtroom. So, whatever this court can do to prevent that is what we're asking. >> Does the court have any questions for me? >> No. Thank you. >> Thank you. >> All right, councel. >> Thank you, your honor. Just very briefly, I'm not sure what neutral observer is supposed to mean. We have interests in the case. We are here to advocate for openness um and against closure. So, I'm not uh I'm not I don't think that's what council um meant to imply, but that's the whole reason we're here is that no one else represents our interests. That is straight down the middle of what the intervention rule requires. Just a couple clarifications. Council said we haven't cited any criminal cases where this has been allowed. That's not true. We cited the court to eight different cases, all criminal cases in the state of Utah, where this is the procedure that judges routinely follow, including judges in this building. um uh council said that our role is strictly limited to advocating for what is under rule 4202.04. I don't think she meant this, but um as the court probably knows that just deals with court records. Um we are also entitled under uh governing constitutional case law to advocate against the closure of proceedings and uh that rule does not uh technically apply to proceedings. It just applies to records. So, just to be clear, um, but I think we have been clear and this is all I mean there wasn't a whole lot of daylight between what council was just suggesting our role should be and what we've asked for, you know, which is just if if they file a motion that seeks to prevent that wants to classify something as non-public like they did um last night with uh the motion to disqualify. Um, they were able to to at least provide that to us. Um, it's not very hard to send an email. That's all that we've asked for in terms of the notice. And then we have the right to be heard on those issues. And so I didn't really hear from council any reason why we should not be granted limited party status in this case other than just some sort of, you know, um uh confusion on on their part as to what that would actually look like. I don't know how the clerk deals with parties on the docket. I assume you guys can sort that out. Typically when we intervene on behalf of the news media in cases they are listed because they are limited purpose parties but the court can you know um if it doesn't want to hear from us on a particular issue it can certainly say that. I mean we don't have any interest in weighing in on on aspects of the case that don't have anything to do with the public's right to know. And so I didn't really hear an argument against what it is that we um that we are um asking to do. Just one last point on well two things. One is that uh council's chastising us for filing something late. I mean, this was a stipulated motion that got us here today. We weren't asked to weigh in on it. It was submitted to your honor with an order, you know, which they just assumed you would sign because it was stipulated. It was only because this court said, "No, I'm not going to do that. I want to actually hear from the parties." That we weighed in. So, um this was not your typical like uh uh deadline where we were invited to weigh in and just didn't. Last thing is um in terms of docket access, you know, Mr. Hunt and Mr. Jed and I are all officers of the court. Um if the court says you can have access to things that are that are uh the parties are seeking to classify as uh non-public, but you can't share them with your clients until further notice from the court. That's fine. Some judges do handle it that way. Sometimes we just, you know, if if they don't concern closure, um, sometimes we don't, um, weigh in at all. But, you know, when they file things that they say, "We need to file this under under seal," and we're not allowed to see it, then the briefing for you is not super helpful, you know, and so typically the way this happens is we are allowed attorneys eyes only access to, you know, documents just like the state and and the defendants would be. their council can see things that are non-public and we don't share them with our clients unless the court orders otherwise and typically if the court decides no this really doesn't need to be filed under seal then we can provide it to our clients at that time but this idea that our clients are somehow going to get access to things that are non-public that's just not the way this typically works if they're if they're not public on the docket if they're public on the docket anyone can get them and if they're not public on the docket then our clients can't get them and if there's a procedure where we can see them so that we can give the court the benefit of briefing substantively as to what it is. Um then we keep them attorney's eyes only until the court orders otherwise. That's just typically the way this works. So >> thank you. >> Anything further? >> Your honor, I'm not going to belabor what's already in the briefing. Um, I do think it's concerning to just cite to a bunch of trial court cases without providing any pleadings or context for what occurred in those cases. I can't argue against what happened in other cases. This is our case. Our case is different. This court has already acknowledged it. There are many interests. We have concerns about leaks, information getting out that shouldn't be out. I think those are valid. And our concern is access. I'm not impuging the integrity of these gentlemen. I'm sure they would act as officers of the court. But the more this court controls the information that ultimately it determines to be private, the more able we are to identify if there are leaks, if there's information that's getting out that shouldn't be, and who did it. Um, so we are objecting to providing the media our pleadings in advance, even just to their counsel. We don't think that's appropriate. I don't see any authority for that. We're asking the court not to consider that. Um, and we we're concerned about opening the door to multiple other entities, just filing in on this case, getting involved in the proceedings. Um we don't know exactly what media means either. So our position is and remains. They can file what this court has authorized to file in the manner they this court authorizes to file it and be heard in the manner this court indicates. We understand they're entitled to closure hearings. And I did make a mistake. We're we agree that they have standing to object to closure as well. So they should be able to file those things, but we do not agree that that requires status in our case. So does the court have any questions? >> No. Thank you. >> Thank you. >> All right. I appreciate the argument from all parties throughout this day. Uh I wish to commend the preparation and the quality of the arguments as well as the civility uh that is sometimes overlooked but I wish to recognize that and appreciate uh council's uh demeanor and their arguments today. I previously uh stated when we began that I would be issuing rulings on the first issue. Uh and and when I began, I initially said October 14th. It's actually the October 24th audio recording of the closed hearing as well as the October 24th transcript of that hearing. And so I wanted to create uh just make that small correction. But given the the in-depth and necessary uh arguments made in the closed hearing, I I wish to take the time to issue a ruling that that will say what will be disclosed and what will be kept private because this court has a duty to do so. And I would rather do it right and take more time than to be rash and and miss the mark. I I need to be narrow in my approach and it is an important issue and so I I plan to do that. Uh in regards to the motion for limited intervention and request for notice of motions to close or reclassify, I also wish to craft my order uh in such a way that is concise and addresses all the issues the important issues brought up by all parties and and so I will be uh issuing that ruling at the same time. And so I will be issuing the ruling uh in regards to the state's motion to clarify court's pre-trial and trial publicity order and and I am prepared to do so. Before I do that, what I want to do is and and council is is being caught off guard because uh they were anticipating a ruling today. But what the court is intending to do is and proposing to the parties is uh issuing an or an an oral ruling on WebEx that all parties can attend to. Uh the reason why is I I want I don't want to take a lot of time. These are important issues. I don't want to wait until January 16th and and I want to uh talk about potential dates. I don't imagine it will take longer than 20 20 minutes uh for this court to issue ruling and and I want to get the party's input in regards to their thoughts of the court issuing an oral ruling on WebEx. And so I'll open it up to the parties. >> We don't have any objection to that, your honor. >> Thank you. >> We have no objection to that, your honor. >> Yeah, same. >> All right. Well, next comes the trickier part when you have a room full of attorneys trying to find a date that we're all available um to uh our staff. Uh what dates do we have available for a 30 minute block before the end of the year? >> Um judge, we do have December 29th at 10:00. >> How does that appear? How does that date work for council? >> That was 10:00 a.m. on the 29th. >> Yes. Your honor, that works for Mr. Robinson. Thank you. Same for us. >> All right. And to defense, uh, in regards to Mr. Robinson, uh, what is your position on if it is on WebEx, it would he would be appearing by WebEx or is there different thoughts? Your honor, if we could just have audio only for Mr. uh Robinson to appear. Um since we will not be present, I would rather not have him in the courtroom without council present. >> All right. Thank you. I appreciate that. So, we will set uh the court's ruling on those two issues for December 29th at 10:00 a.m. And note that it will be a audio only for Mr. Robinson per defense's request. And uh to the last issue is well before I issue my ruling uh I I anticipate and council are we still on the same page in regards to our January 16th hearing? Are we planning for that? >> Your honor, we we are. Um, we believe that most likely what we would anticipate doing is on January 16th arguing our um motion to disqualify the county attorney's office, which was just filed. That should give them enough time to respond to that. Um, and also possibly we anticipate filing our own motion about the pre-trial publicity order that has a little bit different take on it. That should be filed in plenty of time for us to argue that on the 16th as well. Um, I think we have set aside the 30th. Um, and that might be the one we want to save to argue our uh anticipated motion that's coming about uh keeping cameras out of the courtroom. Um, and we will um I imagine the media will depending on the court's ruling today will want to weigh in on that one as well. And that would give them enough time as well. So that would be January 30th. >> All right. And before I go to the other parties, uh the January 30th date there was some complications and so we have to find another date. >> Okay. >> And so I just wanted to let all parties know before we we we lock in our schedules. Uh when what dates do we have available uh for a 4hour setting? >> It's okay. My problem's on the microphone. >> And council, I appreciate you giving me that road map that helps plan so allows the other parties to take in consideration dates and filings as well. So, as staff is doing that, they are looking for uh hearing dates. And one of the complications is as a judge, I have 1,49 cases as of last Friday. And so, trying to find a spot is tricky. And I'm grateful for my staff who work so hard to manage that calendar. So, that is part of the reason for the delay. and we're trying to to find a date because this is an important case as is all those cases. They matter to me. >> Your honor, while while we're waiting, can I if I might just make uh one point that might make things smoother as we go forward with the seal filings, >> Mr. Just to to Miss Netor's point, Mr. Novc earlier mentioned something about a redacted motion to disqualify. And I don't know if that is something that they're planning to file, but I was just going to say sometimes, you know, what we heard earlier about that particular incident is probably not something that we care that much about in terms of what they would redact. And so instead of opposing the motion to classify, if if your honor, um I don't know if this is the plan already in this in this case or whether that's what they were planning to do, but if they file a redacted version that, you know, just takes out the stuff they care about rather than closing the whole thing, then we don't have to say anything and probably avoids, you know, fighting over unsealing that document. So, I just wanted to I just wanted to say that I'm happy to confer with council if you'd rather us do that. if you don't want to do it by way of a court order. But >> no, I appreciate that input. >> I'll hear from both parties and then we'll get to the date, >> your honor. Um I do anticipate going through and seeing what we can redact and working with the state on that as well and with media council. So, >> all right. And we agree that filing a redacted version uh is a good way to go. We can work together on that. As far as the January 16th hearing, the state will do everything it can to respond to these motions as timely as we can, as expeditiously as we can. Um, I just want to note that that January 16th hearing um was set with the expectation uh the previous expectation was that defense council was going to get us these motions before Thanksgiving and we just got the motion to disqualify last night. So, we'll do everything we can to respond to those as expeditiously as we can and hopefully keep that date, but I'm not guaranteeing that we'll make that date. >> All right. I appreciate the heads up. Going to staff. What uh dates do we have available for in lie of the 30th? >> February 3rd. So, morning or afternoon? >> February 3rd. Morning or afternoon setting? >> I actually can't. >> Mhm. [clears throat] >> That works for Mr. Robinson, your honor. >> All right. Thank you. And uh morning or afternoon setting? >> Either works for us, your honor. >> All right. >> As well as for the state, we're available on the third. Anytime. the afternoon would be better because it may be that it reduces um travel time. >> All right. Well, it is always nice when all parties agree. So, we have February 3rd at 1 p.m. Uh it is anticipated to be in person and Ms. Nester, is Mr. Robinson planning on appearing? >> Yes, sure. >> All right. Thank you. All right. Uh that concludes that particular issue about future dates and I appreciate council u working with me on that. We have December 29th at 10:00 a.m. for the uh court ruling on these two issues and that will be via WebEx and then February 3rd, January 16th, I believe that is at 1:00. Is that correct? All right. That's in person as well with I believe uh defense has indicated Mr. Robinson will be present as well. And finally, February 3rd at 1 p.m. and also indicating that Mr. Robinson will be present. And in regards to the final issue, uh the ruling on um the state's motion to clarify court's pre-trial and trial publicity order. This is the order of the court. The court issued a protection order regarding pre-trial and trial publicity in this case. The order prohibits attorneys who are associated with the prosecution and defense of this case from intentionally, knowingly, or recklessly permitting a witness, investigator, consultant, staff member, or other member of the prosecution or defense team to make extrajudicial statements which if made by the lawyer would v violate rule 3.6. To that end, lawyers participating in an investigation or litigation of this case shall inform all witnesses, investigators, consultants, staff members, or other members of the prosecution or defense teams about the prohibitions contained in this order. The state moves to amend or clarify the court's use of the word witness as used in the publicity order because it is vague, ambiguous, or over broad. The state asserts that are there are over 3,000 lay witnesses of the alleged homicide. The state does not know if it must inform each potential witness or each potential and possible witness of the prohibitions in order or whether the order applies only to witnesses who are members of the attorney's teams such as investigators or experts. Due to the potential confusion, this court grants the state's motion and offers the following clarification. The word witness as used in this order applies to all witnesses who are part of the prosecution and defense teams. This includes any witness including lay witnesses whom the prosecution or defense has a good faith belief will be called to testify at a hearing or trial. The court also clarifies that the publicity order as written regulates the behavior of attorneys who are associated with the defense team or the Utah County Attorney's Office. It requires the attorneys to abide by rule 3.6 and in order to deter non- attorneys from making prejuditial statements requires the attorneys to inform witnesses about the prohibitions in the publicity order. Informing witnesses about the prohibitions in the publicity order is a necessary step. It is uh [clears throat] one moment as I regain my place as I read. Informing witnesses about the prohibitions in the publicity order is a necessary step toward not intentionally, knowingly, or recklessly permitting witnesses from making prejuditial statements. The publicity order does not regulate the behavior of any person who is not an attorney associated with this case. And this order will be signed today by myself and made public. Council, is there anything further that we need to address today? >> Thanks, your honor. Yes, just the matter of uh having Mrs. Erica Kirk designated as the victim representative in this case. Uh she has filed through her council a request to be designated as the the victim representative and uh we would like the court to formally formally acknowledge that request and formally designate her as the victim representative. And I guess along those lines, I wanted to make clear as well, I think this court um stated earlier that there was an alleged victim in this case. And I know that there is case law talking about being careful [snorts] about how we refer to victims and alleged victims. But in this case, uh, that case law makes clear that those those cautions don't apply with the same degree where it's clear that we have a victim who was killed in this case. We don't have an alleged victim. We have an alleged perpetrator, but we do know that we have a victim in this case. >> Thank you, Mr. Ballard. I'll hear from the parties. >> Your honor, on behalf of Mr. Robinson. We certainly think it's appropriate for um Mrs. Kirk to be designated as the victim representative if that is the desire of the state. Um just so there can be no doubt that she's afforded all of the rights um assured to her under our our state statutes. And we have no objection to that. >> Thank you. Thank you to all parties. This court will uh recognize Miss Erica Kirk as the designated victim representative in this case. Thank you. Council, I believe that concludes our matters for the day. >> One [snorts] more. >> Or maybe not. >> I can take the podium, judge. >> Yes, Mr. Gander. >> Um the purpose I want to just give the court an update with respect to discovery. We've done that at previous hearings. >> Appreciate that. Um the state has received approximately 13,900 files um from law enforcement in this case. Um approximately 300 of those we believe are duplicates. We have since provided to council um as of I believe this morning 7,951 of those files. Um for the course information we had reached close to 100% had been disseminated um as of last week but we received uh quite a large batch within the last few days. So we were working on that. We still have a full-time parallegal that's dedicated to uh reviewing that organizing it bait stamping it and sending it out to council. Of course there are necessary redactions that are being made along the way. Um, our next real hearing in this case, second matter, our next real hearing in this case is not till scheduled till January 16th. Uh, we understand the court's case load. We understand the difficulty of finding dates for a preliminary hearing and we would like to make a request that the court calendar a preliminary hearing in this case. >> All right. in regards to a and I appreciate the heads up and and acknowledging the the busy calendar of not only the court but all of you. What um first of all, how many days does the state anticipate which helps us in our calendaring efforts? >> Judge, given that it's a probable cause standard um uh and all the inferences go in favor of the state, um the state is asking for 3 days. We believe that we can present the evidence required to meet that standard and that that would also allow the defense to cross-examine witnesses um and um and argue that standard. >> Thank you, Mr. Gernander. Turning to defense, what are your thoughts? >> Um your honor, we we were not aware that he was going to make that request today. We do have one more member of our team that's not present that we would need to consult with. Um I um I don't know when he's talking about but I don't see how we can set it until all the discovery has been received. Um and also we do need to deal with the disqualification motion just in case. So it doesn't seem like a good idea to set it before we have the disqualification hearing. I mean we're only talking about a month from now. Um I think that should probably be resolved before we set any any dates. Um, but I am concerned about setting a date when we still don't have all the discovery materials. We have significant discovery materials that have not been received yet that we know are out there and coming and important and we have to, you know, have time to review it all and absorb it all. Um, and I am going to be involved in another trial that is not over until the end of March. So that's going to take away my ability to work and process through discovery and communicate with our team. Um so it seems to me that with the understanding of what Mr. Grander is trying to accomplish that maybe we come to the hearing on the 16th with an idea about uh we can have some conversations with their um with their with Mr. McBride and also with the parallegal that's dealing with all the discovery and see realistically when we think we're actually going to have the vast majority of the discovery materials to us and how long it's going to take us to to review it all. Um so maybe we could just come prepared in about a month to try to accomplish that. >> Mr. Grunander, >> uh just two points, judge. Um sometimes I feel like we as practitioners sometimes lose sight of the purpose of a preliminary hearing. It is a probable cause determination. Uh the primary purpose according to case law is to fair it out in provident um prosecutions. So again it's a probable cause standard. Um we are working as hard as we can um being very diligent with respect to collecting and disseminating discovery. Um rule 16 um subsection two speaks to the timing of mandatory disclosures. Um and it is our dut it's a continuing duty. So as far as complete discovery being provided in a case like this complete discovery is going to be ongoing until probably trial. There are times when things become available during trial that are discovered uh to opposing council. But it says here, it says, "The prosecutor's disclosures must be made as soon as practicable following the filing of an following the filing of an information, except that a prosecutor must disclose all evidence that the prosecutor relied upon to file the information within 5 days after the day on which the prosecutor receives a request for discovery from the defendant." That's been accomplished. It then says in every case all material or information listed under paragraph A1 that is presently and reasonably available to the prosecutor must be disclosed before the preliminary hearing. So we are in the process of that collecting it as quickly as possible making any necessary redactions and moving it to the defense as quickly as possible. But complete discovery is not required before a preliminary hearing. Uh we have to provide it as quickly as possible. we have that duty and we continue to do that. So, we think we can schedule a preliminary hearing and work towards that. I'm aware of Miss Netor's schedule. I know she's going to be in trial, I think, in February and March. Um, our our and I'm probably overestimating the availability of the court's calendar, but the hope would be sometime in April to schedule a preliminary hearing. >> All right, >> I'll submit it. Judge, >> thank you. >> Your honor, can I just clarify one thing? I mean, the county attorney has made a decision, very public decision, to announce their intent to seek death the day that there was an arrest, which means that that obligation to provide us with the probable cause for everything they relied upon to charge applies now to their intent to seek death. And we're nowhere near getting that material. So, that was their decision to release that. Normally that decision is not made until 30 days after a preliminary hearing. They made it in advance and now they've got an obligation to tell me their aggravation and what they've relied on to make this a death penalty case. And we have not received that. So I'm waiting. Um but I'm just laying that out there for now. >> Thank you. I appreciate the arguments from all sides sides. I do not find there is any prejudice in setting a date for a preliminary hearing. It is not set in stone and it certainly can be moved. I recognize that the parties have a lot of obligations but I also recognize the importance of this case moving forward and if nothing more than this is a goal for the preliminary hearing if it needs to be changed. The court understands that that is what happens a lot in the criminal calendars and criminal dockets. What is uh a date that we may have available for a three-day setting for a preliminary hearing? We do not have any July. >> All right, let's take a look. So, council, well, what dates in June? >> Um, June starting on the 15th. All right, council, I'll turn to you again. This is a goal. This is not a date that uh if if we can't meet there's there's any prejudice that will be attached to a party. Uh in regards to May 18th, how does that tenatively look for council? >> May or June? >> Uh May 18th is the first date I believe. >> Oh, 19th. >> So 18th, 19th, and 21st just to give you the full range. >> The state can make those days work, your honor. Okay, perfect. Your honor, we have we have availability the May 18th with the understanding and the appreciation that if it's not feasible for us to get done when we need to get done prior to that, we would ask to push it back, but we I mean we we don't have conflicts at this time. >> All right. Thank you. So May 18th, May 19th, and May 21st and uh this will be in person and are do we anticipate if that date moves forward uh Mr. Robinson being in attendance? >> Absolutely. >> All right. Thank you. I just want to put that on the record as well. All right. I don't want to be presumptive, but is there anything else? All right, council. Thank you again for your hard work today. Uh, and I wish you all, Mr. Robinson, a good afternoon. Court is in recess.