Pre-Trial Hearing in Tyler Robinson Case Addresses Media Access and Evidence Sealing in Charlie Kirk Incident

Heat. Hey, Heat. Heat. Heat. N. let me know. Hey everyone, how's it going? Let me know if you hear an echo. You shouldn't, but let me know if you do. Let me know. So, this is going to be the next pre-trial. They're looking to see what is going on with if they're going to allow cameras or not. And I'll do like an official kind of like intro what's going on type of thing here in a second. Hey everyone, how's it going? Welcome Kimberly and mods saying audio is good. So we have no echoes. That's good. Let's see. Someone asked if this is actually going to be live. Yes, it will be actually live. So, if you see over here, court starts at 10:00 a.m. Provo time, which is like 11:00 a.m. here. So, in about 30 minutes, and we already have a countdown going for the court, so this is going to be live. Hey, someone actually got an alert. Maybe the platform messed up. I know Coach got hit supposedly this morning, right? Didn't someone say that Coach was uh his stream kept going down or something? I'm looking at it right now. Let me see. Uh, let's see. It looks like I mean it looks like he's up right now, but I heard he went down twice. And I know when I watched him earlier when he first started, it looked like his uh audio or something was messing up. And then a few people said they got booted a few times trigger. Did you even say shooter? It's not fair and probably not even true. How about alleged assassin? Yeah, that works. Yeah. I mean, I think I've done enough digging in all different directions to know that I'm not saying that no shot could have happened, but I'm definitely not saying it was 100% a shot. So, I agree. We should say the alleged assassin or the assassin or um you know, something similar. alleged accused. Um, he says it went he said it went down he was using Streamyard. Okay, that could I mean that could just be purely a Streamyard issue then. Maybe maybe not a uh an issue directly with YouTube. Did I see about the six soldiers? I did. I reported on it this morning. Um, we did a live stream pretty early and had Pete Hus little speech, little meeting, Q&A with uh news and all that. And then we did news updates and all that. So, we did talk about it. Initially, they said four, but this only because they didn't find the other two bodies yet. Um, let's see. Yeah. I mean, if you look at all the images, let me pull it up here really quick. Let me see if it actually shows what I'm looking for. So, like this here. So, you can see this is how these strat tankers usually look. And the one that actually made it back to Israel has this uh top piece sheared off and it doesn't look like a missile or something struck it. So uh it looks like they definitely collided. And if you look at flight radar and that kind of stuff, you'll see these strateers are very close to each other a lot. So, I mean, it could have happened during nonwart time, but it doesn't appear like it's Iran hitting them. Like, I think one of the proxies claimed that they'd hit them with a missile or something, but I don't I don't think that happened. So, very interesting. All right. So, what I'll do is I'll start covering some of the uh stuff that's happened between the last court date and this one and then we'll get into the live once it goes live. All right, key updates. So, we have the judge refused to remove the prosecutors. So, if you guys haven't been keeping up, they were trying to get the prosecution removed because the daughter was present at the event. That has been rejected. The defense argued that Utah County Attorney's Office had a conflict of interest because the daughter was present. She I didn't get to hear what she said, but it sounds like she didn't actually witness it. So, they're trying to like, you know, get the prosecution to be able to stay and all that stuff, but the judge said that uh there's no significant risk of bias. So, this means that the death penalty prosecution continues without interruption. So, in this case, Tyler could still be on for the death penalty. Prosecutors confirmed they're pursuing the death penalty. Again, aggravated murder and multiple related charges tied to the shooting. Uh again, they're saying shooting. That's the the way they were going with it. And um death penalty if he's convicted. Legal fight over media access. Over the past several weeks, a major legal dispute has emerged about how public trials should be. Defense wants to ban TV cameras and microphones in the courtroom, seal certain filings and evidence and close some hearings to the public. And we've seen them arguing that basically since the beginning and um they said that it could prejudice a jury, but you have to remember this has happened with every major like every major large case has been pretty televised and in the media. It's impossible for it not to be. and they want maximum transparency, which makes sense. And then today's hearing is about uh it's not the actual trials, it's a pre-trial and judges addressing pre-trial motions, mainly whether evidence and filings should be sealed. So, this one is not just about the cameras. Robinson's attorneys want certain evidence and legal arguments kept from the public because media coverage has been misleading and prejuditial and whether cameras and media access should be restricted. So, that's probably one of the bigger ones that the public's worried about, obviously, is uh we want to be able to see this. Want to make sure there's no funny business going on. And then whether some future hearings should be closed or not. So, there's a major major hearing on April 17th. They could be partially closed depending on the judge's decision. And it's ultimately about Robinson's accused of right this is not my words sniper style assassination of Charlie Kirk shooting with a 3006 rifle at you at UVU and they claimed that Kirk was targeted for political reasons. Robinson knew children were present during the shooting and those factors were um aggravating circumstances that supported the death penalty. So now if there wouldn't have been children there then technically he might not be getting uh might not be on for a death penalty. And then we have some other dates that are coming up. March 13th uh which is today is the hearing on the sealed evidence media access. April 17th is the additional hearing and this will decide officially. Um the one today will decide if the next one is going to be partially closed and then they have a preliminary hearing where evidence will actually be presented May 18th through the 20th. So I think that is going to be a big one. Obviously we want to see what they have. What proof do they have, if any? I'm sure they think they have a lot of proof, it seems like. But, um, you can see there's a lot of counts. He has two first-degree felonies, two second degree two second degree felonies, and two third degree felonies, and a class A misdemeanor. So, lot going on. We have about 20-ish minutes until this officially starts. And I'm just seeing if there's any other pertinent information. And it got pretty heated last time. And they they called a witness on that we were not expecting to be on. It almost felt like the trial had already started, but they called a guy in who was supposed to be like the the FBI ballistics expert. Uh someone if I'm live on Rumble as well. I should be. Am I not live on Rumble? Let me see. See? Okay. Now I should be live on Rumble apparently. I don't know why it didn't uh go automatically. All right. But they called in this guy and I think he was a I think it was like a FBI officer. I I don't know what he was exactly, but he's supposed to be like the one leading the investigation on the ballistics and all that stuff, and he didn't seem like he knew what the hell he was talking about. Um, they asked him about the gun. He was saying that they tell me and I've heard that and things like that, right? Same with the bullets. I heard that or I've been told that they were engraved and all this kind of stuff. So, it didn't seem like he had any firsthand experience at all. Looks like Rumble is live now. I can see someone saying yes. Lol. That's a good question. How did the father ID the rifle from a stock photo? Don't know. Don't know. You think YouTube's going to kick me off? A lot of people think that. A lot of people would agree. And I believe that they were also I believe there were also searched in the um Google Trends that Baron found initially. Same with the judge if I remember correctly. So, we have about 15 minutes until this starts. So, I will probably I'm trying to see if there's any like recaps that someone has done from these new stations. I do not see any recaps just the full trials. So, so what I'll do is I'll just leave this here and once it starts here shortly then I'll uh I'll be back on as well. And someone says, "Do you know if Brandy and Billy will be there today?" Yes, I believe that. I know for sure Brandy will. I'm not sure if Billy is. And I don't think they're doing interviews today. They said they actually want to sit in the court and um be present and hear everything. So, I don't think they're going to be doing anything after the fact, but they will be there. And I don't I don't think they're going live during either. I don't because obviously they can't. They're inside the court. So, yep, they'll be there. And uh I spoke to a few other people. I invited Kelly and uh Danks to come on if they wanted to. I don't know if they will or not. It was pretty short notice. I asked them uh like maybe an hour ago. So, I don't know how that plays into their schedule. Morning, Moon Goddess. You were up early with us earlier. Uh let's see. What's the deal with the autopsy? So, as far as I've heard, if there was one done, it's not public, and a lot of sources make it seem like there wasn't one done. The only thing that makes us think there might have been one done is that Brian Harpole brought it up. Make sure you guys hit that like. Help push this out. Yeah. TK Parks, judge, doctor, medical examiner, Tyler himself. Um, I think maybe even Lance Twigs, like just there's a lot of people. And same with yesterday, the shooter at in Virginia. I believe he was Googled on Google Trends from our friendliest ally or whatever they call it um at like 6:00 in the morning before it happened. So, very interesting. I don't know. Uh, you know, I don't know how reliable Google Trends is, but it seems like they're starting to see uh some patterns, right? We're seeing patterns of every time something like this happens, they get searched by certain areas. Sometimes out of the US even, there's these weird searches of the people that commit these crimes before they happen, which would almost tell you it's like a activation, right? It's almost like they're making the call saying, "All right, you're up." Uh, okay. Okay, so for this one, so I did a video on this yesterday and actually didn't release it because after digging into it deeper, it looks like the that small spot on his back of his shirt actually looks like it is just um if you look at it closer and look at more frames and then watch from another angle, it is Dan Flood's hand. It's his thumb and his finger that are like blurred out because it's so close to the camera for depth of field. So, I don't believe that it was showing anything on the back besides Dan's hand based on what I've seen so far because I immediately jumped on that, too. I was like, "Oh, look. You can see it in the back. There's no way there's some in the back, right? Unless it went through unless he got shot or something. But appears. It's just his hand." Yeah, Moon Goddess Nightbot will get you. He's pretty aggressive. I even toned him all the way down. I allowed caps and emojis and all that. Uh, Spanish Jose I think um I think he was as well to be honest. I'm not sure if people have looked at uh Butler, Pennsylvania yet, but it seems to be a pattern. got about 10 to 12 minutes left. So, if you want to grab a drink, if you want to grab a blanket, that stuff and get comfortable. I think on average these are 3 to 5 hours. At least that's what it's been so far. Moon goddess. I think you can. So before you were getting dinged on like sending out a bunch of emojis. I turned that off. So you should be able to do emoji bursts and all caps and all that stuff. Should be good. Debbie, this hearing is there's a couple things. The main thing is it's about whether or not they should seal evidence or not. And then the other part is going to be whether or not they can have cameras and all that stuff and audio recording in court. So there's a couple different layers of things. Um, let's see. So, as far as Baron goes, so so I've invited him on for these. He did come on the first one and did a little like 15 20 minute talk, but his I think his thinking on it is like the pre-trials aren't super important. So, I think he will probably weigh in more once the actual trial starts and he'll probably do I'm assuming he'll do whole shows on it based on the evidence and things they present and all that. So, I would expect that once the actual trial starts that he will be picking up on quite a bit of it. Let's see. Gradius says, "Baron can't leave. He's still sifting through 10,000 super chats. Super chats have overtaken his show." So, I know on some of the bigger, more popular creators and stuff, even like Valhalla and Jesse and um some of those people, they like if Candace did this, it would be similar, but you know, all of them for the most part get super chat similar, but I think it's a lot of them don't do they don't go through every single one or try to do every single one. They just pick like, you know, maybe 10 or 20 and then call it. But I know like Valon those guys, they'll go through every single one. I've seen episodes where, you know, he'll be three hours in and telling people to stop sending super chats and they keep sending them and he'll go for another two hours. So, you know, just kind of comes with the territory. But the main takeaway is for most people, the meat of their stream is the first hour. So, if you see they have a 5-hour long stream, usually the first hour or two max is the content. and then the rest is them going through super chats. So obviously you don't have to sit through all the super chat content if you don't want to. So you're saying it's not his fault but super chat to completely changed his show. Um, how so? Because he usually does them at the end, right? forever. Oh, you are Heat. Heat. Should be starting here pretty soon, like in 5 minutes. Heat. Hey. Hey. Hey. Someone said their dog hates it. It's funny. Uh Brandy, yes, Brandy. And I don't know if they're in the courthouse yet. I know they've always gone early. So, let me double check and see if they actually got in. But I think they are they're definitely going or headed that way earlier. I know it takes them a while to get there. Yes, they will most likely be there. And I think I don't think they're going to go live while they're there. It is a huge headache for them to go live because they have to bring a bunch of equipment and batteries and backup battery packs and laptop and mics and all that stuff. It's a lot of setup and if the last couple times they did it, I don't know if it really paid off for them as much as they would like. Uh, someone says Mr. DJ need better music. Yeah, this is just random music that's in uh Streamyard. Let's see. Yeah, few more minutes to showtime. F-35JSF says, "Hey, Matt, thanks for the coverage. No problem." I think this stuff is important, too. Obviously, it's not going to be as exciting and flashy as the actual trial itself, but I think it's still important. Moon Goddess, I didn't know you did music. All right, about two minutes and we should at least have a live stream. I don't know if we're going to, you know, I don't know if the judge is going to be talking right away and all that, but let's take bets on if the audio sounds like crap or not. Remember last time the audio just sounded horrid. What's going on, little nuggles? You know what I've been seeing a lot of obviously is our greatest ally ads on everyone's stuff everywhere. I think there's some people that are kind of trying to do that. I know um like Danks and Kelly Rayon and uh Blake and all them are doing these little panels. I know they've been doing some of that stuff every week. But as far as like the I don't I think honestly I think the the bigger channels have moved on except for like Candace and uh Baron. I think most people are not even covering this stuff anymore. Seem like they could really care less about it at this point or there's not much to add at this point. You know, until we get the everything coming from trial, until we know what evidence they actually have and what they present, it's going to be really hard to move anything else forward. So obviously people had their their time where they did Charlie Kirk videos every day and now they've moved on to war and other stuff. So and a lot of the channels that are still covering it are kind of just uh running a circular pattern. They're kind of just doing the same same information over and over again. Yeah. Someone said or they've been bought out. I don't I'm sure there's some that have been possibly Little Miss Sunny says she got a text pulling. Oh, look like they're getting ready to possibly go in on this. Such fancy graphics. Those remind me of like the early, you know, like the DVD players they had like the how would it just like play the same thing over and over again on the screen. You have little DVD thing like bouncing around the screen. Uh yes, John Bray has been ramping up a lot of his stuff. He has um he used some of the super chat money that he got from one of the streams with me to get a little computer and then he's running some cloud AI and other stuff on it doing some in-depth testing on audio and um the dynamics of the movement and everything in different frames. Let's see. Did I do any more breakdowns of Bride of Charlie after one through three? I did not. Um, I noticed that after 1 through three, they started slowing down quite a bit in popularity, which could be partially because of the war. Um, I think that everyone's down on views significantly. Part of it's because they redid the homepage to make it mostly shorts, shorts and ads. So people like me, Baron, Candace, Valhalla, you know, a lot of our views are way down because we would usually, previously we'd be on the homepage and you be actually see our live and click it and go into it and that kind of stuff and now it's an ad. >> I hear I'm starting. >> Please be seated. Court is now in session. Video recording may begin. >> He sounds pretty quiet. >> Can you guys hear that? Please enter your system and Michael present in court with Mr. Robinson and Miss Netor is appearing by >> Good morning to defense. Good morning, Mr. Robinson. >> Do we have any other parties present? >> Yes, your honor. on behalf of Michael as well. >> Good morning to you as well. All right. Before we begin, I want to address first issue, which is the issue of the December 11th transcripts. I'd appreciate an update as to the status of any proposed redactions. We've talked about this before, but I want to address it and see when I expect those. >> Thank you, your honor. Okay. So, council, sorry, let me begin. Uh, in an abundance of caution, we've turned off the microphones at the desk so nothing can be captured. You have to come to the lectum. Uh, so uh what you have to say is important. I certainly want to hear it, but uh we're doing that to to ensure uh to be cautious. Mr. >> uh your honor, I actually think the court reporter filed the transcript with the court last night. uh the redacted version fully redacted. So I believe that's taken care of. >> All right. Well, that's good to know. Uh Mr. Bard, >> yes, >> you have to come forward. Sorry. We're going to get our steps in today. >> Just going going to uh agree that that's my understanding is that's been filed. We've agreed on the redactions and so that should be taken care of. Thank you. >> Thank you, Mr. B. All right. Uh, I wish to address media coverage and related considerations as it relates to this hearing. The court wishes to remind all parties that the February 25th, 2026 standing decorum order is in effect and will be enforced to protect the constitutional rights of all parties while preserving the integrity, fairness, and orderly conduct of these proceedings. I would also ask council to be mindful of that the microphones and we've turned off the microphones at your council table. But uh just to be mindful that uh microphones even from the lectum can pick up conversations. Uh, council may wish to consider using screen protectors on laptops and taking respon reasonable steps such as covering one's mouth when speaking to avoid the inadvertent capture of private communications whether by camera microphone or by those present in the courtroom. Third, the court wishes to address the camera operator in still photographer. And so I respectfully ask Miss Sites and Mr. Dolan if you would step forward to the lectum. Thank you. And uh this is not to intended to cause you any embarrassment or discomfort. I simply want to ensure that the expectations for today's proceedings are clear. Um so turning to Miss Sites first. Uh during today's hearing, what is your primary role? >> Still photography. Pool photographer. >> All right. Mr. Dolan, >> uh video and pool video. >> Have you read the court's February 25th, 2026 standing decorum order, Miss Sites? >> I have. >> Mr. Dolan, >> I have also. >> Thank you. And so, do you understand the guidelines as they relate to your responsibilities today, including the uh as outlined in the the corn? >> I do. Thank you. >> I also do. >> Thank you. Do you need any additional time to review the order or to reposition yourself or the camera to ensure full compliance? >> I do not. >> I do not. >> Thank you. Do you anticipate any difficulty complying with the order? >> I don't. >> I do not either. >> All right. Thank you to you both. >> Thanks. >> And I appreciate your cooperation today and uh that we can make this proceeding move forward smoothly. Uh, fourth, I want to turn to the state as it relates to discovery and just want to see if we can have a just a brief update. Mr. Gander, >> thank you, Judge. Um, yes. Um, for the record, uh, we sent another batch of discovery to the defense as recently as last night. As far as the files that we in our possession, we have provided 93.9% of those files to defense at this point. We also for the course information met with the defense yesterday and uh part of a discussion uh centered on discovery and we handd delivered to them a hard drive containing information with respect to digital devices that had been seized as part of the investigation and analyses done uh by the RCFL which is the regional computer forensics lab. That was a 24 terbte hard drive. I don't imagine it was entirely full, but there was a a large amount of information that was provided there. Um, as I said, we met and talked about discovery. We talked about some of our expectations. We are candidly still waiting for some information. Um, we had a a meeting yesterday morning with some of our uh federal law enforcement partners, the FBI, uh, the ATF, and talked about this issue of discovery and impressed upon them the need to have everything in their possession. Uh, we were assured that it's coming quickly. Um, the ATF, for example, we expect to have their entire case file within the next week or so that we will disseminate to the defense. Um and we believe that that will have um all of the underlying data um from in its original form that the defense can use for their purposes with their experts. Um we are in the process also of of reaching out to all the local law enforcement agencies to ensure that we are in possession of all of the the body camera footage from that day as well as other information. We continue to work on that. you're not getting there. >> Um as part of our um discussions yesterday as well, uh probably the primary purpose of the meeting with defense yesterday was to forecast what we anticipated presenting at the preliminary hearing that's currently scheduled for May. Um as far as the individuals that will testify as well as exhibits, >> we will be preparing while it's not required under the rule. They're trying to figure out their mic on the fly. >> A witness list and an exhibit list with numbers so that it could be easily found in the case file. >> Do you have your phone with you? >> We are also helping the defense to facilitate a meeting for them to examine Facebook SBI. We anticipate now we're back here >> um I think 17 >> and then lastly we did also coordinate a meeting to meet with the defense today this afternoon some time to walk campus so they can take a look at the scene. >> Thank you Mr. Gander. I appreciate the details. Does any party wish the benefit of the record as it relates to >> close captioning is not available for live >> on YouTube >> Mr. Robinson um we can either address this now or obviously later this morning as the court wishes but there's a um connection >> No, it wasn't me whispering. It was the uh camera people that were filming this. they were talking to each other >> that the Utah County Attorney's Office has not yet received and going back one layer further, the State Bureau of Investigation has not received which is directly related to our ability to meaningfully prepare for the preliminary hearing and that is what I will generally describe as the federal forensic files. We're talking both about case files, as the ATF calls it, and data files from both agencies, which relate directly to forensic analyses, which led to forensic opinions, which it appears the state intends to move into evidence at the prelim through 11:02, but we don't have much, I should say most of the underlying data. um we don't have data that we've been able to give our experts on stuff that relates to those opinions. So um we did meet and confer after yesterday's meeting about the fact that we need to ask this court to postpone the preliminary hearing for that reason. We can put it in writing if we need to do this by written motion. We can discuss it in more detail today. Um, but it's not little tiny bits of witness statements here and there and reports and some photographs that were missing. From our perspective, this is core fundamental data that underlies expert opinions that the state wants the court to consider. We have no ability to either get our own expert opinions or meaningfully cross-examine um the state's witnesses or frankly even call the forensic experts themselves because we have a right to put on our own witnesses because we don't have their data. Um and our experts can't advise us on the data if if we don't have the data. So, we can't we can't meaningfully cross-examine we can't meaningfully examine the state's forensic experts if the state decided to call them as live witnesses as opposed to through an 1102 process and we can't be prepared to put on our own witnesses because they don't have the data. So, I don't want to pre-argue it unless the court wants to get to the merits of that. I did go back and I looked at the court's comments back when the court set the preliminary date in December. Is there a mic on this? >> Um, and I don't think I need to read back to the court what the court said. >> Um, just >> the mic on the camera is picking up audio. >> That's our concern. So we can either >> from our perspective discuss what is a realistic >> preliminary hearing date based on the representations that we will get certain data in the next couple weeks which I and I there's total good faith from the state council when they said they met with the federal partners to impress upon them. I know what that means. That means they've done everything they can do, but there are federal agencies which haven't produced fundamental forensic data and files underlying very um important expert reports. So we have the reports but not the data. >> Sure. >> Um so we can either address that later today after the court hears the argument on the 10 motions. Um we can move in writing and the court could set a briefing schedule for that. We are cognizant of the fact that at the last hearing the court said, if I may, we've got a really busy calendar. We don't have any openings. Um, so I wanted to we wanted to bring this to the court's attention today because if we just let this go and we file a motion and then there's a response and then there's a reply and then I don't know when that hearing is going to be because of the court's calendar, that preliminary hearing date may be further out than these preparation issues require because of the court's calendar. >> No, I appreciate that. I appreciate that heads up. Uh, and we'll revisit it at the end of this hearing. I you know it's hope springs eternal in regards to discovery when it's passed over and and obviously the defense needs the necessary time to prepare as as provided uh in the constitutional rights allow and so I'm I'm cognizant of that. So I appreciate the heads up and I appreciate the work between the parties to to move this forward. Let's revisit that at the end of the today's hearing. >> Absolutely. >> Thank you. >> Thank you. >> All right. Well, let's turn to the matter that's before us. As uh this is the defense's mo motion, I will turn to you uh for your uh argument and in your request. And just as a heads up, I battling a cold, so if I drink take a drink of my water, it's to it's to uh spare you from coughing or overly rough voice. >> No problem. >> Yes. Thank you. Um, I will be addressing the motion to classify the January 9th motion, kind of taking these in chronological order here. Um, I know this court is kind of drowning in First Amendment briefing, so I don't want to delve too much into that aspect. Um, certainly I'm open to answering any questions the court has, but I kind of want to start with um just the very base level. We are asking the court to classify this motion and the attachments as private under rule of judicial administration 4-202.04. Um the reason that we are asking the court to do this fundamentally is because we believe that the release of this motion and the evidence has uh a reasonable probability of impacting our ability eventually to impanel an impartial jury and for our client to have a reliable penalty phase should that occur. I want to start kind of with a little bit of a procedural history here. Um, back in October, November, early in the case, the defense and the prosecution met and conferred about how uh the government would preserve evidence in this case and when the government uh the prosecution and any law enforcement agencies sought to conduct testing that might impact the evidence in particular ways, they were to provide us notice. And if we could not come to an agreement about that, we are required to file something with the court to ensure that the testing doesn't move forward. That's what occurred here in December. On December 22nd, we received notice from the state. They filed a certificate of service for that notice. And they also informed us in the correspondence essentially that they were not filing the notice because they were concerned about their ethical considerations under Utah Rule of Professional Conduct 3.6, which basically says we should avoid making public comments that influence a case. and the comments specifically talk about particular evidence that might impact a case more likely to impact a case. We agreed with this. Uh we did try to come to a resolution but ultimately at the end of the day we needed to preserve the issue. So in order to preserve the issue, we had to file something with the court. And honestly, there was a lot of back and forth about whether or not we could file it publicly, how we wanted to do that, because we have the same concern that the state voiced in that initial email. Are we putting something into the public sphere that will inappropriately enter into the minds of potential jurors and impact the case? Ultimately, we decided that we have two obligations. One is to preserve the issue to ensure our client's right to due process and his right to effective assistance of counsel needed to be preserved. We needed to file this and put the court on notice in a way that this court can make a ruling on it should that become necessary. And I will say, your honor, that we continue to work on this issue with the state. Um, we're still negotiating it. We are not asking for a hearing on the underlying motion um because we think we can likely resolve it. Um, it was almost to the point where we contemplated potentially asking to withdraw the motion, but of course that doesn't really cure the record issue. So, we are here. Um, in addition to that, the other obligation of course is to ensure our client receives a fair trial. So, we filed a motion to classify. Um, when we filed the motion to classify, we did notify the state and they took a slightly different position. They basically said, "Well, now that you filed it, we don't have the same concerns under rule 3.6." I think those concerns remain. Um, I don't want to talk about the evidence specifically in a public setting, so I'm going to choose my words carefully and maybe read a little bit more than I normally would. >> Sure. >> Um, but the evidence is important enough. It is important. It is evidence that will be at issue in the case, but it is also in process, which is the whole point of the underlying motion, right? It's in process. There is more to be done. There is more the state wants to do with that evidence. So it is not in a place in a position where we are going to be arguing about admissibility because it's not done right. So what we're talking about is releasing preliminary evidence into the public sphere that has the potential to impact jurors. And it is important enough that we are concerned that it will sway people's opinions one way or the other. And I want to make clear that our concern here with selecting an impartial jury really it goes both ways. whether the evidence is good for my client or bad for our client, whatever it is, it makes it harder to find impartial jurors if they are entrenched in an opinion about our client's guilt or innocence. Either way, so we don't want to be putting out evidence as the defense that will sway the public opinion. We've already told the court, we're not fighting this case in the public. We're not trying to sway the public in favor of our client's innocence. That's not what we're doing. So, um I also want to address one issue that I've seen generally um arising in this case and I think it deserves some comment. There seems to be an idea that flooding the public sphere with information or evidence from this courtroom will somehow dispel conspiracy theories or shift public narrative. That in and of itself is concerning to the defense. No one should be worried about that. All we should be worried about is protecting what happens in this courtroom. We believe that preemptively releasing evidence that we needed to provide to this court in order for this court to make an informed decision is just one of those actions. is one of those things that will negatively impact our ability to have a fair proceeding for our client. So, we are asking that the motion and the evidence be classified as private that this court consider our client's unqualified right to a fair trial and a reliable penalty phase should overcome the qualified right of access. At this point, we understand things may change. This evidence may come in in other ways at other points in the proceedings like a preliminary hearing or when we actually challenge the admissibility of evidence. But at this preliminary stage, we believe this is the appropriate course to take to protect the proceedings and our client's rights. Does the court have any questions for me? >> Well, I do, but I'm going to wait till all of um defense has presented. Am I is there another attorney that's going to be presented? >> Yes. Yes. Mr. Bert is going to present on the other motions to classify and the motion to close the hearing in part on April 17th if the court is prepared to hear that. >> All right. Yeah. I I want to hear all of it and then I'll have questions for you all. Thank you, Professor. >> Mr. Burton. >> Morning your honor. >> Good morning. >> Michael Bird for Mr. Robinson. I'm going to be addressing the motion to classify the what I'll call the camera motion, the motion to restrict electronic media. Um, so there's a motion to classify that motion as private. And then there's a motion that was recently filed to close the uh portions, select portions of the hearing that is scheduled for April 17th. >> Mr. Bert, uh just for clarity, would you mind referencing the docket number of these motions? And >> certainly >> and for Miss Viser as well, I just want to make sure we're tying it well in the record. So, because sometimes we use different terms about talking about the motions and if we use the docket number >> uh in conjunction with that, it just clarifies it for everyone's benefit. I didn't mean to catch you off guard or >> No, not at all, your honor. So, let me take it chronologically. Uh the motion to classify motion to exclude still photographers, TV cameras, and microphones from the courtroom as private. That's docket number 310. >> Thank you. >> Um then the motion to close portions of the April 7th hearing is document 425. >> Thank you. >> And there are of course uh oppositions to those motions if the court would like. I can outline what those are. >> No, I'll I'll have the other sign. I'm don't don't want to deprive them the opportunity of doing the same thing as you just did. >> Sure. So in in all there's a lot of uh paperwork in front of the court and obviously I'm not going to repeat everything in there but one of the cases that's cited by all parties I think is the Utah um Supreme Court opinion in in Kern's Tribute uh corporation which is 685 Pacific 2 515 and there are a number of key points in that opinion that I'd like to focus a court's attention on. And as a court may recall, the issue there was whether there was a a public right of access to a preliminary hearing. And one principle the court sets forth in the opinion is at page 519 where the court says we believe the issue quote we believe the issue should turn on the precise nature of the proceedings in question. We limit our review to cases involving preliminary hearings. And then the court proceeds to uh explore the nature of a preliminary hearing and decides that because of the nature of that preliminary hearing. Uh it like the trial itself should be classified as one that the press and the public have a right of access to. And the key portion of that discussion is that uh the following page where the court says Utah's preliminary hearing is different from the preliminary hearing in some other jurisdiction in that it does not include hearings on motions to suppress evidence. Rule 7D1 provides, and then it quotes the rule. And the court goes on and says, "As a result, the added risk of prejudice through pre-trial disclosure of evidence targeted in a motion to suppress are not present in Utah's preliminary hearing. If the prosecution elected to try to use such evidence in the preliminary hearing in advance of a ruling on whether it should be suppressed, the defendant could seek special measures to avoid its public disclosure. So there I think the court is signaling that in a in a preliminary hearing context if an issue of inadmissible evidence comes in uh the appropriate procedure is for the defense to seek closure of at least that portion of the hearing where the evidence is going to be discussed. Um so the first point I wanted to make is court looking at the procedure we're asking to close a portion of and that is the motion to uh preclude further electronic media coverage of the case. It is unlike a preliminary hearing in the sense that that hearing on the 17th is not going to include a motion to suppress evidence. Obviously, it's going to include a discussion of the nature and extent of prejuditial pre-trial publicity. And I emphasize prejuditial pre-trial publicity because the cases define that term um as a term of art. It does not include all pre-trial publicity. We are not complaining about all pre-trial publicity. We're complaining in that motion to close the hearing, which is uh the motion to prevent further electronic coverage. That's document 305. Uh our only focus there is on what the courts have characterized as prejuditial pre-trial publicity. And that uh categorization includes the same type of information that rule 3.6 6 prohibits lawyers from commenting upon things like confessions, things like evidence before it's been admitted, personal opinions as to guilt or personal opinions as to the appropriate penalty, evidence which is clearly inadmissible. Those are the categories of prejuditial pre-trial information that the courts and the rule focuses on. So, our motion to preclude further electronic coverage details uh and what the media says um in too much detail uh the kinds of prejuditial pre-trial publicity that that have characterized this case so far. So the hearing and and the standards that the court um is governed by under the under the rulings that we cite particularly the James case the Utah Supreme Court case says in deciding whether there's a reasonable likelihood of prejuditial pre-trial publicity the court has to consider a number of factors and one of those factors uh the size of the community uh the nature and extent of the pre-trial publicity. So as part of our burden, we have to show the court uh through evidence what is the nature and extent of the prejuditial pre-trial publicity. And by definition, that prejuditial pre-trial publicity is inadmissible at trial. So we're not dealing with a situation where the court has not yet ruled on a motion to suppress. That issue comes up in relation to the other motion that Miss Spisser just talked to you about. We're dealing with a motion that by definition is putting forth in front of the court evidence which is clearly inadmissible at the trial of this case. Confessions, alleged confessions, uh opinions and statements by uh Miss Kirk, statements by the president of the United States, statements, opinions by the vice president, by the governor, by the prosecution, by law enforcement officials. All of that prejuditial pre-trial publicity is by definition inadmissible evidence. So in that kind of a hearing, is that the type of hearing that we're going to hold on the 17th that should be subject to a right of access? the first issue which uh Karna says the court should consider and and my argument to the court is that it's not it's not a traditional uh procedure such as a trial or preliminary hearing where courts have recognized a right of access. But even if there is any sort of right of access to a hearing on whether the media electronic media should be excluded, the nature of that hearing has to be considered. and as Kerna dictates and I think the best description of the type of hearing we're talking about on the 17th is discussed in by the US Supreme Court in Estes versus State of Texas which we cite in our 305 pleading and in that case like this one there was extensive pre-trial publicity prejuditial pre-trial publicity. And in that case, like this one, there was a motion to exclude further coverage by way of electronic media. And the court addressed the issue of whether that type of a hearing is something that in itself can give rise to prejuditial pre-trial publicity because of the fact that the evidence that's being brought forth during that hearing is going to be by definition prejuditial. And the court in Estes, this is Judge Clark's opinion, says it page 535 of the Yesty's opinion, it is contended that this two-day pre-trial hearing, that is the hearing to exclude the press, cannot be considered in determining the question before us. And the question before them is whether Mr. Estes was deprived of his right, federal constitutional right to a fair trial. And the court goes on, we cannot agree. Pre-trial can create a major problem for the defendant in a criminal case. Indeed, it may be more harmful than publicity during the trial, for it may well set the community opinion as to guilt or innocence. Though the September hearing dealt with motions to prohibit television coverage and to postpone the trial, they are unquestionably relevant to the issue before us. All of this two-day affair was highly publicized and could only have impressed those present and also the community at large with the notorious character of the petitioner as well as of the proceedings. The trial witnesses present at the hearing as well as the original jury panel were undoubtedly made aware of the peculiar public importance of this case by the press and television coverage being provided and by the fact that they themselves were televised live and their pictures rebroadcast on the evening show. So that kind of captures why we had to bring this motion because we don't want to be in a position of inflicting another wound on Mr. Robinson's right to a fair and impartial jury uh by republicizing either right now in arguing this motion or on the 17th when the court hears uh from us what the nature and extent of that pre-trial publicity is. >> Well, let me stop you right there, Bur and yes, Mr. Bert. Um so you you cite the Estes case, but Estes was overruled by Chandler v. Florida because in Estes there was uh an assumption of prejudice but in Chandler it required uh the defense prove actual prejudice and and so it it it changed it a little bit. Can you talk a little bit about that? Yeah, certainly the the Chandler court court first of all was asked to but did not overrule uh SDS. But what it did clarify as the court just indicated is that if the defendant wants to prove up a fair tri federal fair trial violation, it's his burden to prove prejudice. And the SDS court uh outlines that that can be done through an evidentiary hearing >> at which uh the defense would have the burden of showing again the factors under the James case nature and instant publicity how it prejudiced the defense whether there are reasonable alternatives that's going to be the very purpose of the hearing to comply with Chandler's mandate that we have the burden to prove that prejudice and so we're going to be taking on that burden. And we think u well establishing that we're entitled to the relief that we seek which is some restriction on the type of prejuditial information that is flowing uh not only from the electronic media but that electronic media being amplified by the uh widespread use of social media which we discuss at length in the motion. I'm not going to get into the merits of the motion itself, but to address a concern >> uh the court had about well really esties is no longer good law. Estes is cited favorably in Chandler. It's cited favorably in Hollingsworth versus Perry, which is a Supreme Court's most recent discussion of cameras in the courtroom. And the court is correct that Chandler put a gloss on it that we have to show there is no presumption of prejudice but there is a presumption of prejudice in regard to certain types of prejuditial pre-trial publicity and that the clearest holding to that in that regard is the Schilling case. Schilling says there is no pres presumption of prejudice unless certain categories that the courts have recognized as prejuditial uh are proven and then it's inherently prejuditial and the example that Schilling cites is um publicity about a confession and it cites back to the uh Wilbert Redau case Redau versus Louisiana where the court reversed the conviction because the defendant's confession was broadcast prior to the trial. So, we have that type of prejuditial pre-trial publicity in this case and it's outlined in the motion. And so, yes, if you don't have those categories of prejuditial pre-trial publicity, you have to prove prejudice. But there are certain well-known categories that do give rise to a presumption of prejudice. And that's reflected also in rule 3.6, six, which says there are certain things Lord should not be commenting about. And so we'll we'll show both that we have categories of prejudice that are recognized as presumptively prejuditial and we'll show that beyond that the overall picture of this case is one of extreme prejuditial pre-trial publicity that justifies the kind of relief we're asking for. But how do we show that without reinflicting the very harm that we're seeking to avoid here? And that's the purpose of our motion. Um and and the main concern um is the tendency in this case for the press to first of all highlight all of the prejuditial information in virtual virtually every story they feature on the case which has its genesis in the prosecution's initial press conference before the court imposed its uh publicity order There was an extensive press conference which got got before the public a great deal of the kinds of evidence which rule 3 3.6 six says should not be disclosed before the court had the occasion to enter that order. And then that evidence has been reamplified, commented upon, uh ex so-called experts have been brought in, lipreers, body language experts, all of that is outlined in the motion. the kinds of reiteration of this prejudice that we're most concerned about. The best example of that uh in document 344 which is the um reply brief on this closure issue. Uh, at page six, there is a link to an article, and that article concerns a story by one of the media's clients in which they were supposedly reporting on a defense anticipated motion to modify the court's publicity order. And the story does not concern, it's a television story and the court has to see it to understand what the what the issue is. But the story does not concern what the merits of the motion is. The story focuses on let's repeat for our audience in a very dramatic fashion all of the prejuditial statements made by uh politicians from the president on down uh characterizing Mr. Robinson as an animal, characterizing him as evil, characterizing him as deserving of the death penalty. and they string together all these quotes uh and rebroadcast them and and that's the kind of coverage that's I cite that as one example one example but if the court sat down and touched on all the links we have in the 305 motion the court will see it's repeated over and over again so we don't want to be in that position of putting in front of the court uh all of this prejuditial information then having the pass regurgitate it uh yet one more time uh and reinflicting the wound that we're seeking to uh void. That same link to that same article is in document 305 at page uh 175. Um, it's interesting that the uh the media's answer to this which I'll discuss but I think I first need to return for a minute to the Karn's case. Um, to continue with the other points that I I wish to emphasize from that case. The third point from that case is the standard that governs what what we have to show. And the court uh in the opinion says we we don't have to show a clear and present danger to Mr. Robinson's right to a fair trial, but a realistic likelihood of prejudice. That's that's the standard the court will apply. And if the court looks at the standard for excluding uh electronic media, it's similar reasonable probability, reasonable likelihood of prejudice. That's that's the applicable standard the court will apply. And the court also outlines the procedure to be followed on the motion that we're conducting right now. That is the motion on the hearing of whether the proceeding should be closed. And the court says first the hearing on the motion for closure should be open to the greatest extent possible referring to this hearing that we're conducting right now. Um and then the court says second, if disclosure of the alleged prejuditial material is essential to the conduct of the hearing on the motion for closure, the court should first seek a voluntary agreement from the parties who wish to be present that they will not disclose the alleged prejuditial information until it until it is disclosed at the trial or the trial has concluded. Absent such an agreement, the court may close the courtroom in order to conduct in camera whatever proceedings cannot be conducted without disclosure of the allegedly prejuditial information. So as I read that the court's referring to the people presently in the audience who wish to be present during this hearing today and that if they can't promise that they will not use uh information that I want to disclose in support of the motion today then the court should conduct procedures in camera. Now, is it necessary for me to disclose to the court what my prejuditial information is? The media says in their motion um that they filed yesterday, which is I don't think I have a docket number for this, but it's entitled News Media's memorandum in opposing motion to close portions of the hearing which is filed on the 12th yesterday. I don't have the docket number. I'm sure the media does if there is one. But what they say is it's really not necessary for me to disclose to the court all the prejuditial information that we're relying on to justify moving to close because at page two they say if the defense does not want to highlight certain information at the evidentiary hearing, it can choose not to. the information is already cited in the motion to exclude so the court can find it there. That would be a good solution except for the fact that the media is also opposing our request to keep the motion uh private. So, it doesn't do us any good to refer the court to all the prejuditial information in the motion if the court accepts the media's position that that motion in itself has to be disclosed to to the press. Because if it is disclosed, they're going to take that motion and they're going to reiterate all the highlighted prejuditial information in that motion um and again defeat the very purpose of of filing the motion. Um, a couple of other points that I wish to emphasize to the court. One is in both the present motions that I'm talking about and the motions that Miss Visser just uh responded to. The media and the state and and the state are in and the media are many me of each other on this issue. Their pleadings are virtually identical which calls into question why the media is even a part of this hearing. The court has not yet decided whether they have standing on this particular issue. And in your December ruling, you said that we were not obligated to file with the media the motions concerning restricting electronic media. In in their latest opposition to the closure motion, they discussed their standing. But one of the issues in standing is whether we need the voice not only of one media lawyer but of two media lawyers um asserting the same position that the state one of the parties in this case is asserting. So you're being presented with three different lawyers arguing essentially the same uh position. And when the court denied intervention to the media in this case, uh it cited the uh Utah Supreme Court decision in society of professional journalists of Utah versus Bulock. And there the court Utah Supreme Court addresses the issue of standing in detail. And one of and there were multiple media agencies in that uh case. And one of the points the court makes is that although there are multiple media agencies, they're all representing the exact same interest. That is the interest of the public in open access to the proceedings, which is coincidentally the same interest the state is asserting in reference to this motion. So, we do question whether the state even has standing, but >> I mean the press, I'm sorry, I misspoke. Uh but putting that aside, both the state and the um media stressed to the court that the court should uh deny the motion to close, should deny obviously the motion to restrict media access and allow the kind of prejuditial publicity that has characterized a case to continue because we can all sort it out at trial through uh venue motions. for change of venue through uh voyer or motions to expand the uh jury pool. And I wanted that issue is addressed in detail in our uh underlying motion, the lengthy motion, but just to highlight a couple of the points that we raised there. One of them is the Utah Supreme Court in a case that Miss Netor is currently involved in the Richens case. This is cited in our motion said that the court does not have the authority to expand the jury pool. So that remedy is is not one the court can adopt. And in terms of the other remedies that are being suggested, neither the state nor the media cites what I think is a controlling case on this issue, which is uh Gentiel versus State Bar of Nevada, which is 501 US 10:30 discussed in our motion. But there, Chief Justice Renquist, writing for the court, who is no fan of the criminal defendants, uh, said, quote, "Even if a fair trial can ultimately ins be insured through voyer, change of venue, or some other device. These measures entail serious cost to the system. Extensive Voyer may not be able to filter out all of the effects of pre-trial publicity. And with increasingly widespread media coverage of criminal trials, a change of venue may not suffice to undo the effects of statements such as those made by petitioner. So, I don't know how many capital cases the media lawyers have been involved in, but for the last 40 plus years, I've done nothing but those trials. And I've been involved with with using jury questionnaires, extensive individual sequestered voyer, and and the fact of the matter is that voidier is not an effective means in these cases. And to the extent it is effective in excluding people who hold prejuditial opinions, it calls into question other rights that are implicated. For instance, in a death penalty case, the jury has to be death qualified. Both those who would automatically impose death and those who would automatically impose life. And there's a lot of research, this is an issue which will be explored down the line, but there's a lot of research which shows that that process skews the panel uh as unrepresentative. It excludes people who uh are knowledgeable because they read this media coverage. It excludes the evidence shows uh minority groups, women, and people that uh normally would be included in a in a representative jury. So, yeah, you can void your jury on whether they've heard the president of the United States say that Mr. uh Mr. Robinson should be executed, and you can exclude that juror from serving on this case. But given the demographics of this county, you're going to be excluding a large portion of the population. And then when when you add to that the death qualification process, you no longer end up with a representative jury. You you re you end up with what the US Supreme Court in Witherspoon versus Illinois uh called a group organized to return a death verdict. but it's not a representative jury. So, as Chief Justice Renquist said in his opinion, um even if you employ these other means, they come with a great cost and and in this case, a great constitutional cost. So, those are the uh main points I wanted to make to the court and I hope Evan repeated things that the court is already familiar with, but I'm certainly happy to answer any questions the court may have. >> Well, I what I think I'm going to do is wait till uh the state makes their argument and then I'll have questions that that's going to put the picture together for >> and then have questions for all parties. I just want to make sure I hear it all and I appreciate your arguments. >> Makes sense. Thank you, honor. >> All right, turning to the state. Your honor Christopher Ballard on behalf of the state. Um, first of all, let me just set the table for the court because I think there's a motion pending um the defendant didn't mention and that's the motion to classify the reply brief in support of the mo their motion to exclude cameras. Would your honor like that docket number? >> Yes. >> That that motion is docket number 400. So, as I understand it, today we've got four motions in front of the court. three of them dealing with classifying documents that have been filed. First is the January 9th motion. Then we've got um a motion to classify the motion to exclude cameras, which Mr. Bert has just addressed. Uh a motion to classify the reply in support of that motion to exclude cameras, which I just mentioned is docket number 400. and then also a motion to close portions of the hearing in April uh that Mr. Bert has also addressed. Uh so it's my understanding that we're here on those four motions. Would would it be helpful for the court for me to give you the states opposition to those motions? The docket numbers for those? >> That would be helpful. Men, thank you. >> Sure. So on the January 9th motion, uh, states opposition is docket 340. On defendants's motion to classify the motion to exclude cameras, the state's opposition is docket number 346. On the defendant's motion to classify the reply supporting its motion to exclude cameras, the state's opposition is docket number 431. And then on the motion to close portions of the April hearing, the state's opposition is docket number 448. >> Thank you. I think part of the problem with this is on three of these motions, we don't have any requests to submit. Um there is a request to submit that that uh the media helpfully filed uh on the January 9th motion and that lists all of the docket numbers of the relevant documents. There's been quite a few on that one. So hopefully that's helpful for the court. >> Yes. Um, okay. The next thing I want to clarify is uh the standards that apply to these two different categories of motions. The defense here has not been very careful about articulating and applying the correct legal standards that govern these motions because there are different standards that apply to classifying documents as opposed to closing a hearing. the the standard that applies to classifying documents is found in the Utah Rules of Judicial Administration. That's rule 4-202 uh 00 let's see 0.04 04 and but the standard that applies to closing a hearing as the state apply uh explained in its uh opposition is governed by case law and that's the current tribune case and subsequent cases uh following that case. Um and then I also want to just clarify that rule 3.6 six of the rules of professional conduct that's also been mentioned. That rule, while it might be relevant because it talks about pre-trial publicity, it does not govern any of these uh motions because rule 3.6 talks about lawyers making extrajudicial statements. We don't we're not concerned about any extrajudicial statements in any of these motions uh or in closing the hearing. Obviously, everything that's going to occur in the hearing is going to occur in court. Um, and I also just want to emphasize that rule 3.6 makes it clear that there's nothing improper about a lawyer commenting on information that's contained in a public record. A public record like the information that's filed in a criminal case. Um, now with respect to the first motion to classify defendants's January 9th motion that has to do with the evidence, the state did mention rule 3.6 when it uh submitted its notice of intent to test evidence. Um the state did that because the state w recognizes that under rule 3.6 there can be concerns about statements that deal with evidence and testing and results of tests. Our hope we and I guess it's proved to be overly optimistic was that if we could do this without having to file something in court, we could get this issue resolved of whether we could go forward with the testing. We'd get that resolved. We wouldn't need to be here in a hearing like this today arguing about whether something needs to be public or private. we could uh hopefully move forward, get the testing done, and get us that much closer to trial. Uh the state was not suggesting that there would be anything improper about filing a motion and having this type of evidence uh listed in a public document. So, that was not the state's intent in originally mentioning mentioning rule 3.6. We were just recognizing that there could be concerns and hopefully uh in hopes of avoiding any kind of hearing like this and getting this this issue resolved as far as the testing goes um that we could move forward but we find ourselves here. Now the other another thing I want to clarify is we are not media lawyers. We are not representing the interests of the media. our our client is the people of the state of Utah who do have uh an interest in the uh public nature of these proceedings. But whether a docu whether any particular document in this case is public or private is really of secondary concern to the state here. We're not trying to represent any kind of media interest and I think it's improper for the defense to suggest that. Um although maybe the media might want to hire us because we