Prosecutors, lawyers for Kirk’s accused assassin argue motion to disqualify prosecution

[00:01] E

[00:01] THE MAGIC HAPPENING.

[00:03] >> Will: THANKS FOR BEING HERE.

[00:05] >> THANKS FOR HAVING ME.

[00:06] >> Will: COURT IS RESUMING FOR

[00:09] THE CASE AND THE CHARGES AGAINST

[00:11] CHARLIE KIRK'S ACCUSED ASSASSIN,

[00:17] TYLER ROBINSON.

[00:18] THE JUDGE IS NOW BACK IN THE

[00:21] COURTROOM.

[00:21] LET'S LISTEN IN.

[00:24] >> -- WITH 3,000 OTHERS

[00:27] ATENNEDING TURNING POINT USA ON

[00:30] THE DAY THAT CHARLIE KIRK WAS

[00:31] SHOT AND KILLED, THE FAMILY

[00:34] MEMBER TEXTED THE PROSECUTOR

[00:36] ALMOST CONTEMPORANEOUSLY --

[00:44] WE'LL PRETEND I SAID IT RIGHT --

[00:48] AND SAID THEY HEARD THE GUNSHOT

[00:51] AND RUN WITH THE CROWD.

[00:55] AFTER THE PROSECUTOR WENT TO UVU

[00:58] AND INVESTIGATED HOW FAR LIST

[01:02] FAMILY MEMBER WAS NEAR THE

[01:05] SHOOTING.

[01:05] THE PROSECUTOR DETERMINED THE

[01:06] FAMILY MEMBER WAS FIVE FEET AWAY

[01:09] FROM CHARLIE KIRK WHEN HE WAS

[01:11] SHOT.

[01:11] IN MY VIEW, THOSE ARE THE

[01:14] ALLEGED FACTS THAT THE COURT

[01:15] MUST CONSIDER TO ANSWER THE

[01:17] FIRST QUESTION.

[01:17] THE PROSECUTOR BY VIRTUAL OF HIS

[01:20] RELATIONSHIP WITH THE FAMILY

[01:21] MEMBER WITNESSED THE SHOOTING

[01:24] HAVE A CONFLICT OF INTEREST.

[01:31] TURNING TO THAT -- LOOKING AT MY

[01:36] NOTES.

[01:38] I APPRECIATE YOUR PATIENCE.

[01:43] SO TURNING TO DEFENSE.

[01:45] I ACCEPT THE FACTS AS YOU HAVE

[01:46] ALLEGED IN YOU REMEMBER MOTION

[01:48] AS TRUE.

[01:49] IS THERE ANY REASON TO CALL

[01:50] WITNESSES TO ANSWER THE FIRST

[01:51] QUESTION BEFORE THE COURT?

[01:53] BEFORE YOU ANSWER THAT, I

[01:54] UNDERSTAND THERE ARE OTHER

[01:55] RELEVANT FACTS THAT PERTAIN TO

[01:56] THE EFFECT OF THE ALLEGED

[01:59] CONFLICT.

[01:59] THOSE FACTS WOULD INCLUDE

[02:01] WHETHER THE PROSECUTOR WAS

[02:02] SCREENED FROM THE CASE THROUGH

[02:03] CONVERSATIONS HE HAD WITH OTHER

[02:05] PROSECUTORS AND WHETHER THE

[02:08] FAMILY MEMBERS EXPERIENCE

[02:10] IMPACTED THE STATE'S DECISION TO

[02:11] SEEK THE DEATH MEMBERTY.

[02:13] IT IS THE DEFENSE POSITION AS I

[02:15] UNDERSTAND THE FACTS MAY BE

[02:18] EXPLORED THROUGH WITNESS

[02:18] TEMPORARY.

[02:19] IF WE'RE TALKING ABOUT THE FIRST

[02:22] QUESTION, THE PROSECUTOR HAS A

[02:24] CONFLICT OF INTEREST UNDER RULE

[02:26] 1.7.

[02:28] IS THERE ANY CALLED WITNESSES?

[02:33] >> YES, SIR, YOUR HONOR.

[02:35] I UNDERSTAND THE COURT IS TRYING

[02:37] TO GET TO THE THRESHOLD QUESTION

[02:39] THAT WE HAVE PUT BEFORE IT WITH

[02:41] RESPECT TO WHO SHOULD BE

[02:43] REPRESENTING THE UTAH COUNTY

[02:45] ATTORNEY'S WAS A IN THIS MOTION.

[02:46] THE ANSWER TO THIS COURT'S

[02:49] QUESTION IS YES BECAUSE IT'S NOT

[02:51] JUST THE MERE TRANSACTIONAL

[02:57] EVENT THAT THIS -- THAT THE OFF

[03:02] SPRING WITNESSED THE SHOOTING.

[03:06] IT IS THE -- WE WERE ONLY

[03:15] PROVIDED WITH AN AFFIDAVIT WHICH

[03:19] WAS NARROWLY DRAWN AT

[03:22] COMMUNICATIONS THAT HAPPENED

[03:23] AFTER THAT BETWEEN THAT OFF

[03:26] SPRING AND THEIR PARENT.

[03:28] BETWEEN THAT OFF SPRING AND

[03:30] OTHER FAMILY MEMBERS THAT MAY

[03:32] HAVE BEEN COMMUNICATED TO THE

[03:36] PARENT.

[03:36] COMMUNICATIONS BETWEEN THE

[03:37] PARENT AND OTHER PEOPLE IN THE

[03:40] OFFICE, THE IMPACT.

[03:42] SO NOW I'M GOING TO JUST SAY, IF

[03:45] I HAD FOUND OUT THAT MY CHILD

[03:47] WAS AT AN INCIDENT WHERE

[03:50] SOMEBODY WAS SHOT AND KILLED, I

[03:54] WOULD HAVE AN INCREDIBLY STRONG

[03:56] EMOTIONAL REACTION EVEN IF THEY

[03:58] WERE SAFE.

[04:00] OKAY?

[04:00] SO GIVE ME A SECOND.

[04:02] OKAY?

[04:03] THERE WAS A HORRIBLE SHOOTING

[04:05] INCIDENT AT BROWN UNIVERSITY A

[04:08] FEW WEEKS AGO.

[04:11] AND I HAVE A CHILD WHO LIVES

[04:12] WITHIN 20 MILES OF THERE THAT

[04:15] WAS IN PROVIDENCE THAT DAY.

[04:18] EVERYBODY IN OUR FAMILY WAS

[04:20] FREAKED OUT UNTIL WE KNEW THAT

[04:22] THEY WERE SAFE.

[04:23] WHEN WE KNEW THEY WERE SAFE, THE

[04:25] QUESTION WAS WHAT DID YOU SEE.

[04:26] DID IT AFFECT YOU?

[04:28] TURNED OUT EVERYBODY IS FINE.

[04:29] IT'S NOT JUST OH, I WAS THERE.

[04:32] RIGHT?

[04:32] AND MY FAMILY MEMBER DIDN'T

[04:34] WITNESS A SHOOTING.

[04:35] WASN'T IN A CROWD WITH 3,000

[04:38] PEOPLE THAT ALL HAD TO RUN AND

[04:41] TAKE COVER IN CASE THERE WERE

[04:44] MORE SHOTS FIRED.

[04:46] IN CASE THERE WERE SOME OTHER

[04:48] HARM THAT OCCURRED.

[04:51] OKAY?

[04:52] SO IT'S NOT JUST THE FACT THAT

[04:54] THIS PERSON WAS 85 FEET AWAY

[04:57] FROM MR. KIRK.

[04:58] THAT BEGINS TO -- THAT SCRATCHES

[05:02] THE SURFACE, IF I MAY, OF THE

[05:07] TOTALITY OF THE CIRCUMSTANCES

[05:10] WHICH WE THINK CREATED A

[05:14] CONFLICT OF INTEREST.

[05:15] SO THE ANSWER IS YES.

[05:16] THAT'S WHY BOTH THE PARENT AND

[05:19] THE OFF SPRING ARE HERE AND ARE

[05:21] UNDER SUBPOENA AND AGREED TO BE

[05:23] HERE AND AGREED TO TESTIFY.

[05:25] OBVIOUSLY IT'S THE COURT'S

[05:27] PROCEEDING.

[05:27] BUT NOBODY HAS MOVED TO QUASH.

[05:29] I THINK IT'S OBVIOUS THAT THAT'S

[05:31] BECAUSE WE NEED FURTHER FACTUAL

[05:34] DEVELOPMENT.

[05:34] AND OUR REPLY BRIEF, IF IT DID

[05:36] ANYTHING, IT COMMUNICATED TO THE

[05:37] COURT THE CAUSE LAW WHICH SHOWS

[05:39] THAT THIS IS A FACT INTENSIVE

[05:42] INQUIRY.

[05:43] AFFIDAVITS ARE REQUIRED.

[05:44] HERE WE DON'T HAVE AFFIDAVITS

[05:46] FROM THE PARENT OR FROM

[05:47] MR. GRAY.

[05:48] WE HAVE ARGUMENT AND A BRIEF.

[05:51] WE ALSO BELIEVE THAT TESTIMONY

[05:53] FROM THE OFF SPRING IS NECESSARY

[05:54] AND THEY'RE HERE AND THEY AGREED

[05:57] TO BE HERE.

[05:59] AND THEY AGREED THAT THEY COULD

[06:04] SIGN AN ACKNOWLEDGE MEANT OF

[06:06] SERVICE OF A SUBPOENA.

[06:07] SO THE VERY LONG ANSWER, YES,

[06:09] DEFINITELY.

[06:10] WE NEED TO HAVE A HEARING.

[06:14] >> ISN'T DEFENSE REQUIRED TO

[06:17] MAKE THE THRESHOLD OF SHOWING IN

[06:21] THE FACTS THAT YOU'RE ASSERTING,

[06:23] ISN'T THAT WHERE WE BEGIN?

[06:25] NOT NECESSARILY THE STATE'S

[06:27] RESPONSE, BUT DON'T YOU HAVE A

[06:29] RESPONSIBILITY TO SHOW THAT

[06:31] THERE'S -- THAT YOU'VE MADE A

[06:34] THRESHOLD SHOWING OF WHAT YOU'RE

[06:37] ASSERTING WOULD RISE TO WHAT

[06:38] YOU'RE ASSERTING IN YOUR MOTION?

[06:42] >> SO THE STATE -- SO THE YOU --

[06:52] UTAH COUNTY ATTORNEYS INFORMED

[06:54] US THAT THIS OFF SPRING WAS

[06:55] PRESENT IN A CROWD, WAS CAUGHT

[06:59] UP IN THE ENSUING CHAOS.

[07:05] HEARD A SHOT FIRED, HAD TO LEAVE

[07:08] THEIR BELONGINGS BEHIND.

[07:10] WITNESSED THE TRAUMA OF OTHER

[07:14] PEOPLE.

[07:16] WE CAN'T REALLY GET BEYOND THAT

[07:20] WITHOUT -- IF WHAT THE COURT IS

[07:22] SAYING HYPOTHETICALLY IS I WANT

[07:25] YOU TO GO SIT DOWN AND INTERVIEW

[07:26] PEOPLE, THAT'S ONE THING.

[07:27] IF THE COURT IS SAYING THAT WE

[07:30] SOMEHOW SHOULD HAVE MORE

[07:31] INFORMATION THAN THE COUNTY HAS

[07:33] GIVEN US, WE CAN'T DO THAT

[07:36] WITHOUT EVIDENCERY DEVELOPMENT.

[07:39] WE HAVE QUESTIONS ABOUT WHETHER

[07:41] THERE WERE MORE NONRECORDED

[07:44] COMMUNICATIONS THAT WE HAVEN'T

[07:45] BEEN TOLD ABOUT.

[07:47] I THINK WE HAVE A GOOD FAITH AND

[07:49] THE COURT CAN IMAGINE THAT A

[07:51] FAMILY WOULD TALK ABOUT SUCH AN

[07:54] INCIDENT AND IT WOULDN'T JUST BE

[07:56] THE TEXTS THAT THE COURT HAS AND

[07:59] THE EXHIBIT.

[07:59] I DON'T THINK ANYBODY SHOULD RUN

[08:00] THEIR FAMILY THE WAY MY FAMILY

[08:03] OPERATES.

[08:03] I'M TALKING ABOUT WHAT WOULD BE

[08:04] NATURAL, WHICH IS FAMILIES TALK

[08:06] ABOUT THESE THINGS BECAUSE WE

[08:07] WANT TO TAKE CARE OF OUR KIDS.

[08:08] WE WANT TOO MAKE SURE THEY'RE

[08:11] OKAY.

[08:12] THEN WE NEED TO MAKE SURE THAT

[08:15] OUR RESPONSIBILITIES TO THE

[08:17] PUBLIC AND TO JUSTICE AREN'T

[08:19] IMPACTED BY OUR PERSONAL

[08:20] EXPERIENCES.

[08:21] I THINK WE CAN ONLY GET AT THAT,

[08:24] YOUR HONOR, THROUGH EVIDENCERY

[08:28] DEVELOPMENT.

[08:28] THAT'S WHY -- I THINK THE STATE

[08:29] WOULD AGREE WITH THAT.

[08:31] THAT'S WHY THEY PROVIDED THE

[08:34] COURT WITH SOME AFFIDAVITS AND

[08:36] SOME FACT IN THE COURSE OF

[08:38] ARGUMENT.

[08:38] SO I THINK THAT IT NEEDS TO BE

[08:41] FULLY DEVELOPED THROUGH THE VERY

[08:43] LIMITED NUMBER OF WITNESSES THAT

[08:46] ARE PRESENT.

[08:47] >> I UNDERSTAND.

[08:48] LET ME TURN TO THE STATE.

[08:50] WHAT IS THE STATE'S POSITION?

[08:51] >> SO I WANT TO MAKE SURE I'M

[08:55] UNDERSTANDING YOUR QUESTION.

[08:57] YOUR QUESTION IS, THERE'S TWO

[09:00] LAYERS HERE, RIGHT?

[09:01] THE FIRST LAYER IS WHEN AN

[09:04] ALLEGED CONFLICT ARISES, DOES

[09:07] THE -- IN THIS CASE THE COUNTY

[09:09] ATTORNEY'S OFFICE HAVE TO

[09:11] CONFLICT THE HANDLING OF THAT

[09:15] ALLEGATION TO ANOTHER SPECIAL

[09:17] PROSECUTOR, ATTORNEY GENERAL'S

[09:19] OFFICE, RIGHT?

[09:20] YOUR QUESTION IS DOESN'T THE

[09:21] DEFENSE HAVE TO MAKE AN INITIAL

[09:24] SHOWING BEFORE THAT FIRST

[09:25] CONFLICT HAS -- OR OCCURS THAT

[09:31] REQUIRES THAT DELEGATION?

[09:32] >> YES.

[09:33] >> MY ANSWER IS YES.

[09:34] OTHERWISE, WE HAVE TO HAVE A

[09:36] HEARING TO DETERMINE WHETHER

[09:37] ANOTHER ENTITY HAS TO HANDLE THE

[09:39] SUBSTANTIVE ISSUE AND THEN YOU

[09:40] HAVE TO HAVE ANOTHER HEARING TO

[09:43] DETERMINE IF THERE'S A CONFLICT.

[09:46] THERE HAS TO BE FIRST A SHOWING

[09:49] THAT THERE IS A BASIS FOR A

[09:51] CONFLICT.

[09:53] OTHERWISE, SOMEONE CAN SAY I

[09:55] THINK THERE'S A CONFLICT WITHOUT

[09:57] ANY EVIDENCE WHATSOEVER.

[09:59] OR NOT EVIDENCE THAT IS

[10:02] CREDIBLE.

[10:02] I THINK -- FOR THAT REASON, I

[10:04] THINK THE COURT SHOULD BE ABLE

[10:05] TO MAKE THIS THRESHOLD SHOWING

[10:09] BASED ON THE AFFIDAVIT.

[10:13] THE AFFIDAVIT AND THE FACTS THAT

[10:15] HAVE BEEN PROFFERED.

[10:16] THERE'S ENOUGH TO SAY YES, THEY

[10:18] CAN HANDLE THIS MOTION ON A

[10:19] THEIR OWN OR NO, THIS MOTION

[10:20] NEEDS TO GO TO THE ATTORNEY

[10:24] GENERAL'S OFFICE, WHOEVER ELSE

[10:25] TO HANDLE THE SUBSTANTIVE ISSUE

[10:28] OF WHETHER OR NOT THERE'S A

[10:30] CONFLICT.

[10:30] I MEAN, I WANT TO BE CLEAR.

[10:34] I DON'T BELIEVE UNDER ANY OF

[10:37] THOSE CIRCUMSTANCES THAT TISSUE

[10:38] NEEDS TO BE CONFLICTED OUT.

[10:40] I BELIEVE UNTIL A CONFLICT HAS

[10:42] BEEN FOUND, THE COUNTY

[10:44] ATTORNEY'S OFFICE OR WHATEVER

[10:45] ENTITY HAS BEEN ACCUSED OF THE

[10:47] CONFLICT CAN LITIGATE THAT ISSUE

[10:50] WITHOUT CONFLICTING LITIGATING

[10:52] THAT ISSUE.

[10:55] >> ALL RIGHT.

[10:56] >> DO I MAKE MYSELF CLEAR?

[10:58] >> YES.

[10:58] THEY'RE PROPOSING CALLING

[11:01] WITNESSES TO MAKE THAT THRESHOLD

[11:04] SHOWING.

[11:04] WHAT IS THE STATE'S POSITION?

[11:06] >> NO.

[11:07] MY POSITION IS NO.

[11:08] I THINK WITNESSES SHOULD BE

[11:09] CALLED ONE TIME IN THIS CASE.

[11:11] THAT SHOULD BE TO DETERMINE

[11:12] WHETHER OR NOT THERE'S A

[11:13] CONFLICT.

[11:14] NOT TO DETERMINE -- THE ISSUE OF

[11:15] WHETHER OR NOT THERE'S A

[11:16] CONFLICT SHOULD BE CONFLICTED.

[11:20] >> OKAY.

[11:21] I THINK THERE MAY HAVE BEEN SOME

[11:23] CONFUSION THERE.

[11:23] I'LL TAKE RESPONSIBILITY FOR THE

[11:25] QUESTION.

[11:26] IN REGARDS TO THE THRESHOLD

[11:29] SHOWING ABOUT THE CONFLICT -- SO

[11:38] THE THRESHOLD SHOWING OF A

[11:40] CONFLICT OF INTEREST UNDER RULE

[11:43] 1.7.

[11:43] THE AG'S -- IT SEEMS TO FOLLOW

[11:46] AFTER A TIME TO SEE IF THERE'S A

[11:49] CONFLICT INITIALLY.

[11:51] SO IN REGARDS TO ESTABLISHING

[11:53] THAT, DEFENSE AND -- I DON'T

[11:56] WISH TO SPEAK FOR YOU.

[11:56] DO YOU WISH TO CALL WITNESSES TO

[11:59] PUT THAT EVIDENCE ON?

[12:00] >> THEN I MISUNDERSTOOD THE

[12:03] COURT'S QUESTION.

[12:04] I DON'T THINK WE NEED TO TAKE

[12:11] TESTIMONY IN ORDER FOR THIS

[12:15] COURT TO MAKE A FINDING ON 1.7

[12:20] THAT CONFLICT-FREE COUNSEL

[12:24] SHOULD REPRESENT THE STATE IN

[12:27] THIS MOTION.

[12:27] I'M NOT SUGGESTING -- I DIDN'T

[12:30] MEAN TO -- THAT THERE SHOULD BE

[12:34] TWO HEARINGS.

[12:36] THAT'S NOT -- SO IF I

[12:38] MISUNDERSTOOD THE COURT'S

[12:41] QUESTION.

[12:41] I THOUGHT THE COURT SAID DO WE

[12:42] NEED A HEARING ON THE MOTION TO

[12:45] DISQUALIFY.

[12:46] THAT WAS NOT -- WAS THAT YOUR

[12:49] QUESTION?

[12:49] >> I'LL TAKE FULL RESPONSIBILITY

[12:51] ON MY QUESTION.

[12:52] I WAS -- THAT WAS REALLY THE

[12:53] PUSH ON IT.

[12:56] BECAUSE MY UNDERSTANDING IS THAT

[12:58] DETERMINATION NEEDS TO BE MADE

[12:59] BASED OFF OF WHAT YOU TOLD US IN

[13:02] THE BEGINNING THAT A SHOWING OF

[13:05] A CONFLICT OF INTEREST -- THERE

[13:10] HAS TOO BE A VERY GOOD

[13:12] POSSIBILITY OF A CONFLICT BEFORE

[13:13] WE GO DOWN THE STEP OF A FURTHER

[13:15] ROAD ADDRESSING THE AG'S OFFICE.

[13:17] I WAS ALLUDING TO BASED OFF

[13:19] THAT, DOES THAT REQUIRE A

[13:21] HEARING FROM YOUR PERSPECTIVE?

[13:23] >> I DON'T THINK IT REQUIRES AN

[13:24] EVIDENCERY HEARING.

[13:27] I DON'T WANT TO PREDICT OR MAKE

[13:30] ASSUMPTIONS ACT THE COURT'S

[13:33] VIEW.

[13:33] I BELIEVE THAT THE UTAH COUNTY

[13:42] ATTORNEY'S DISCLOSURE TO US ON

[13:45] OCTOBER 20th OF THIS SITUATION

[13:52] AND OUR ASSESSMENT THAT IT

[13:54] CREATES A CONFLICT OF INTEREST

[13:57] IS NOT FRIVOLOUS.

[13:58] IT'S NOT TAKEN FOR THE PURPOSES

[14:00] OF DELAY OR TACTICS.

[14:03] IT'S A REAL POTENTIAL CONFLICT.

[14:11] I DON'T KNOW WHAT THE THRESHOLD

[14:14] SHOWING IS THAT PERMITS OR

[14:18] REQUIRES THE COURT TO EXERCISE

[14:25] ITS AUTHORITY UNDER WHAT IS NOW

[14:29] IN JUXTAPOSITION TO -- THE UTAH

[14:32] LEGISLATURE CHANGES ITS CODE SO

[14:33] AFTERNOON.

[14:33] WE HAVE TO FIGURE OUT THE NEW

[14:36] CODE NUMBERS.

[14:38] IT'S NOW 17.68-04 WHICH GIVES

[14:44] THE COURT THE AUTHORITY TO

[14:46] APPOINT THE ATTORNEY GENERAL IN

[14:47] THIS CASE AS OPPOSED TO THE CODE

[14:50] SECTION CITED IN -- THE LAW IS

[14:51] THE SAME.

[14:52] THE CODE SECTIONS HAVE CHANGED.

[14:55] WHAT I'M SAYING IS, I DON'T WANT

[14:59] TO PREDICT OR GAMBLE WITH WHAT

[15:05] SHOWING THIS COURT THINKS IS

[15:08] NECESSARY IN ORDER TO

[15:10] APPROPRIATELY EXERCISE ITS

[15:11] DISCRETION TO MAKE THAT

[15:14] REFERRAL.

[15:14] SO IF THE COURT SAYS I NEED

[15:17] MORE, THEN SHOULD HAVE AN

[15:20] EVIDENTIARY HEARING.

[15:21] THE IMPORTANT THING IS TO GET IT

[15:22] RIGHT.

[15:22] NOW FOR ME TO BARGAIN ON WHETHER

[15:25] OUR PAY PAPERS SHOW ENOUGH.

[15:28] THE ONLY THING THAT WE KNOW THAT

[15:29] WE CAN SHOW IN OUR PAPERS IS

[15:31] WHAT WE WERE TOLD AND WHAT WE

[15:34] WERE GIVEN.

[15:35] WE WERE GIVEN SOME TEXT

[15:38] MESSAGING BETWEEN FAMILY MEMBERS

[15:40] AND MAYBE SOME OTHER PEOPLE.

[15:42] THE COURT HAS THAT AS AN

[15:44] EXHIBIT.

[15:45] THAT'S ALL WE REALLY HAVE.

[15:47] SO I DON'T WANT TO JUST SAY OH,

[15:49] YEAH, THERE'S ENOUGH THERE AND

[15:50] HAVE THE COURT SAY NO, THERE

[15:51] ISN'T.

[15:52] IT MAY BE THAT THE COURT WANTS

[15:54] TO TAKE SOME PRELIMINARY --

[15:56] PERMIT US TO TAKE SOME

[15:59] PRELIMINARY TESTIMONY IN ORDER

[16:01] TO MAKE THAT DECISION.

[16:03] WHAT I REALLY THINK -- INSTEAD

[16:08] OF STARTING AN EVIDENTIARY

[16:12] HEARING ON A MOTION FOR

[16:14] REFERRAL, THERE'S SHOWING THERE

[16:15] SHOULD BE A REFERRAL BY THIS

[16:19] COURT BECAUSE OF 1.7 UNDER UTAH

[16:26] CODE SECTION 16.68-3094 BEFORE

[16:33] WE BEGIN TO TAKE TESTIMONY.

[16:34] BECAUSE MR. GRAY IS GOING TO BE

[16:35] THE FIRST WITNESS ALREADY -- THE

[16:37] STATE HADN'T MOVED TO QUASH

[16:40] BECAUSE IT'S A FRIVOLOUS

[16:42] SUBPOENA OR THERE'S NO BASIS IN

[16:46] THE FACTUAL PREDICATE TO EXAMINE

[16:49] MR. GRAY ABOUT THESE THINGS

[16:50] SUGGEST THERE'S A PROBLEM HERE.

[16:51] MR. GRAY'S OFFICE IS

[16:54] REPRESENTING MR. GRAY AND ALSO

[16:55] WHILE TRYING TO REPRESENT THE

[16:57] STATE.

[16:58] THAT'S AN INHERENT PROBLEM.

[16:59] AND I UNDERSTAND IT'S A THORNY

[17:01] QUESTION.

[17:01] IT'S WHAT IS THE SHOWING THAT IS

[17:03] NECESSARY AND DOES THE COURT

[17:04] HAVE DISCRETION OR IS THE COURT

[17:06] COMPELLED TO, IS THE COURT GOING

[17:07] TO COMMIT ERROR IF IT DOESN'T.

[17:11] THAT'S WHY I THINK THAT MAYBE

[17:12] SOME THOUGHTFUL BRIEFING IS AN

[17:15] APPROPRIATE THING TO DO BEFORE

[17:18] WE START AND EVIDENTIARY HEARING

[17:20] AND THEN REALIZE THAT WE GOT OFF

[17:23] ON THE WRONG FOOT.

[17:24] THERE SHOULD BE SOMEBODY ELSE

[17:26] SEATED AT THE COUNSEL TABLE WHEN

[17:27] TWO MEMBERS OF THE STATE'S

[17:29] ATTORNEY'S OFFICE WHO ARE

[17:31] MEMBERS OF THE PROSECUTION TEAM

[17:33] ARE TWO OF THE FOUR OR FIVE

[17:35] WITNESSES IN THIS HEARING.

[17:36] I'M NOT TRYING TO DANCE AROUND

[17:37] THE COURT'S QUESTION.

[17:40] WHAT I'M REALLY SAYING IS I

[17:43] DON'T KNOW THAT WE CAN BE STUCK

[17:46] WITH ONLY BEING ABLE TO GIVE THE

[17:47] COURT A SHOWING BASED ON THE

[17:49] EVIDENCE WE'VE BEEN GIVEN WHEN

[17:50] ALL WE'VE BEEN GIVEN IS A MEMO

[17:52] THAT SAYS THIS PERSON WAS THERE,

[17:53] WE DON'T THINK IT'S A PROBLEM.

[17:57] THEY WERE 85 FEET AWAY WHEN

[18:00] MR. KIRK WAS KILLED.

[18:01] >> I APPRECIATE WHAT YOU'RE

[18:02] SAYING.

[18:02] WHAT I'M TRYING TO DETERMINE IS

[18:07] IN YOUR -- WHAT I WANT TO

[18:09] ADDRESS HAVE THE SUFFICIENCY OF

[18:11] THE SHOWING.

[18:12] YOU REQUEST FOR AN EVIDENTIARY

[18:15] HEARING FOR YOU TO PRESENT

[18:17] ENOUGH EVIDENCE TO MAKE THE

[18:20] DETERMINATION OR SOMETHING ELSE?

[18:25] >> IF THE COURT DOESN'T BELIEVE

[18:28] THAT THE PAPERS THEMSELVES

[18:32] SUFFICIENTLY DEMONSTRATE THAT

[18:33] FOR PURPOSES OF THE MOTION TO

[18:37] DISQUALIFY, THE STATE SHOULD BE

[18:39] REPRESENTED BY SOMEBODY ELSE,

[18:40] THEN THE ANSWER IS YES.

[18:43] WE WANT TO HAVE A EVIDENTIARY

[18:44] HEARING UP UNTIL THE POINT WHERE

[18:46] THE COURT REACHES THAT

[18:49] CONCLUSION.

[18:52] BECAUSE THAT WOULD BE THE ONLY

[18:56] WAY FOR US TO SATISFY WHATEVER

[18:59] SUFFICIENT -- WHATEVER SHOWING

[19:02] THE COURT DEEMS NECESSARY.

[19:03] SO I'M NOT GOING TO WAIVE A

[19:06] EVIDENTIARY HEARING IF THE COURT

[19:07] IS SAYING I DON'T THINK YOU HAVE

[19:08] ENOUGH EVIDENCE HERE.

[19:09] OBVIOUSLY THE ANSWER IS YES.

[19:10] WHAT I'M SAYING IS, I THINK

[19:13] BASED ON THE PAPERS THE COURT

[19:14] CAN SAY YEAH, THIS A SIGNIFICANT

[19:16] PROBLEM IN A SERIOUS CASE THAT

[19:18] HAS REALLY SERIOUS CONSEQUENCES

[19:21] FOR MR. ROBINSON, FOR THE PEOPLE

[19:23] OF THE STATE OF UTAH, FOR THE

[19:25] VICTIM'S FAMILY.

[19:27] WE SHOULD DO THIS CAREFULLY AND

[19:30] CORRECTLY.

[19:30] I THINK THE WAY TO DO THAT IS TO

[19:32] HAVE THE ATTORNEY GENERAL OF

[19:33] UTAH DESIGNATE SOMEBODY IN THEIR

[19:35] OFFICE TO REPRESENT THE COUNTY

[19:37] FOR THIS LIMITED PURPOSE UNTIL

[19:38] THE COURT DETERMINES THE SCOPE

[19:39] OF THE CONFLICT.

[19:41] WE THINK THE CONFLICT REQUIRES

[19:43] DISQUALIFICATION FROM THE CASE.

[19:45] BUT ULTIMATELY THAT'S GOING TO

[19:47] BE THE JUDICIAL DETERMINATION.

[19:49] >> ALL RIGHT.

[19:49] ANYTHING FURTHER FROM THE STATE

[19:51] BEFORE THE COURT MAKES ITS

[19:52] RULING ON A THIS ISSUE?

[19:53] >> I JUST WANT TOO CLARIFY.

[19:55] YOU'RE TALKING ABOUT THE NEED

[19:58] FOR AN EVIDENTIARY HEARING IN

[19:59] ORDER TO DETERMINE WHETHER OR

[20:00] NOT THE STATE'S -- THE COUNTY

[20:02] ATTORNEY'S OFFICE CAN HANDLE THE

[20:03] MOTION TO DISQUALIFY?

[20:05] >> NO.

[20:06] DETERMINING -- JUST AN INITIAL

[20:07] SHOWING OF A CONFLICT THAT

[20:10] EXISTS HERE.

[20:13] >> FOR WHAT PURPOSE?

[20:15] TO DISQUALIFY THE OFFICE OR TO

[20:17] HAVE THE ATTORNEY GENERAL'S

[20:18] OFFICE TO STEP IN --

[20:21] >> TO DISQUALIFY THE OFFICE.

[20:24] >> CAN I TAKE A CRACK AT IT?

[20:27] >> IF YOU WOULDN'T MIND, THERE

[20:29] GRAY.

[20:29] JUST STEP IN SO THE RECORD PICKS

[20:31] YOU UP.

[20:31] SOMETIMES THESE MICROPHONES --

[20:32] >> IF I COULD TAKE A CRACK AT

[20:34] IT.

[20:34] BASICALLY I THINK WHAT YOU'RE

[20:36] SAYING IS KIND OF LIKE A FRANK'S

[20:38] HEARING WHERE YOU HAVE TO ALLEGE

[20:40] SUFFICIENT FACTS.

[20:42] SO THAT BASED ON THOSE FACTS IF

[20:45] YOU -- IF THE COURT TAKES THAT

[20:49] AS TRUE, THEN YOU WOULD NEED --

[20:53] WHETHER OR NOT THERE WOULD BE A

[20:54] LEGAL BASIS TO CONFLICT IT OUT.

[20:59] ORB FIND A CONFLICT, RIGHT?

[21:01] SO IF THEY DON'T MAKE THAT

[21:02] SHOWING, THE COURT CAN RULE

[21:03] STRAIGHT WAY.

[21:04] IF THEY DON'T MAKE THAT SHOWING,

[21:07] IF WHAT IS ALLEGED IS TRUE, WE

[21:09] GO TO A EVIDENTIARY HEARING.

[21:10] IS THAT --

[21:11] >> MOSTLY.

[21:12] IT'S THE INITIAL SHOWING OF A

[21:15] CONFLICT.

[21:15] WHAT HAPPENS AFTER THAT WILL BE

[21:17] DETERMINED BECAUSE THEY'RE

[21:18] BRINGING THIS UP FOR THE FIRST

[21:20] TIME TODAY.

[21:20] >> BASICALLY LIKE A PRIMA FASCIA

[21:22] SHOWING OFFICIALLY.

[21:23] IS THAT --

[21:32]

[21:35] >> ESSENTIALLY.

[21:37] I APPRECIATE YOUR CLARIFICATION.

[21:43] MR. McBRIDE?

[21:44] >> NOTHING FURTHER.

[21:45] >> I'VE LISTENED TO THE

[21:47] ARGUMENTS TODAY.

[21:48] I DON'T BELIEVE A SUFFICIENT

[21:50] SHOWNING HAS BEEN FOR THE COURT

[21:52] RELYING ON THE BRIEFING ITSELF.

[21:54] SO I CAN'T MAKE THAT FINDING

[21:55] BASED OFF OF -- WELL, I WOULD

[22:00] FIND THAT THRESHOLD SHOWING

[22:01] HASN'T BEEN MET BASED OFF THE

[22:05] BRIEFING.

[22:06] TURNING TO MR. NOVAK, BASED OFF

[22:10] THAT FINDING OF THE COURT, WHAT

[22:13] IS YOUR POSITION?

[22:32] >> OUR VIEW IS THAT IF THE COURT

[22:36] HAS CONCLUDED THE BRIEFING DOES

[22:39] NOT YET RISE TO THE LEVEL OF

[22:45] PROOF THAT THE COURT SHOULD MAKE

[22:48] A REFERRAL, WE SHOULD BEGIN

[22:50] THE -- THE COURT SHOULD BEGIN TO

[22:53] TAKE EVIDENCE AND THERE MAY BE A

[22:55] MOMENT WHERE THE COURT SAYS

[22:57] OKAY, I'VE HEARD ENOUGH.

[22:58] I'M READY TO MAKE A REFERRAL AND

[23:01] WE'LL STOP AND PAUSE AND WAIT

[23:06] FOR THE ATTORNEY GENERAL TO

[23:09] ENGAGE.

[23:10] AND THEN WE'LL HAVE TO SEE WHERE

[23:12] THAT GOES.

[23:13] MAY BE THAT WE HAVE TO FINISH

[23:17] THE EVIDENTIARY HEARING.

[23:17] BUT YOU KNOW, TO -- I THINK ALL

[23:23] OF US CAN ATTEMPT TO PRIORITIZE

[23:30] THE PORTIONS OF OUR EXAMINATIONS

[23:32] SO THE COURT CAN MAKE THE

[23:33] FINDING AS EARLY AS POSSIBLE.

[23:35] I'M TRYING TO AVOID DOING THE

[23:38] HEARING TWICE.

[23:40] BECAUSE RIGHT NOW IT'S OUR VIEW

[23:41] THE STATE IS NOT BEING

[23:43] REPRESENTED BY THE ATTORNEYS

[23:44] THAT SHOULD BE REPRESENTING IT.

[23:46] SO IF THE STATE IS GOING TO SAY

[23:48] LATER, WE WANT TO REDO THE

[23:51] EVIDENTIARY HEARING BECAUSE THE

[23:52] STATE WASN'T REPRESENTED BY THE

[23:55] RIGHT LAWYERS, IT'S -- THAT'S

[23:56] SOMETHING THAT WE WOULD WANT TO

[23:58] AVOID.

[23:58] WE WANT TO DO THIS ONCE OUT OF

[24:02] THE COURTESY TO THE COURT AND TO

[24:06] THE WITNESSES.

[24:08] >> I APPRECIATE THAT.

[24:09] CAN THIS BE ACCOMPLISHED BY

[24:11] PROFFER?

[24:12] >> I DON'T KNOW WHAT THE

[24:13] WITNESSES WILL SAY.

[24:14] THEY HAVE ONLY GIVEN US VERY

[24:17] LIMITED INFORMATION.

[24:18] THE STATE ELECTED TO GIVE US

[24:21] INFORMATION IN THEIR BRIEFING.

[24:23] SOME OF WHICH IS LIKE I SAID A

[24:25] FEW TIMES NOW IS NOT SWORN BY

[24:27] AFFIDAVIT OR DECLARATION.

[24:33] THE BRIEF IS SIGNED WHERE HE

[24:35] MAKES MANY ASSERTIONS OF FACT IN

[24:38] THE COURSE OF ARGUING THE LEGAL

[24:41] ISSUES.

[24:42] NONE OF THAT IS SWORN.

[24:46] AND I MEAN, I'M SURE THAT -- I

[24:49] THINK -- SO I DON'T THINK THERE

[24:51] CAN BE A PROFFER.

[24:54] I DON'T KNOW WHAT THE PROFFER

[24:56] IS.

[24:56] I KNOW THAT I HAVE A LOT OF

[24:58] QUESTIONS ABOUT -- THAT THE

[25:00] COURT WAS NOT TOLD ABOUT IN THE

[25:02] BRIEFING AND THE AFFIDAVITS.

[25:05] SO THE ANSWER RESPECTFULLY IS

[25:08] NO, IT CAN'T BE DONE BY PROFFER.

[25:09] >> ALL RIGHT.

[25:10] WHICH WITNESSES ARE YOU

[25:11] INTENDING TO CALL TODAY?

[25:12] I UNDERSTAND YOU'RE SAYING YOU

[25:14] WISH TO JUST PUT ON ENOUGH AND

[25:15] FOCUS ON THE KEY ISSUES.

[25:17] JUST -- IF I WERE TO GRANT --

[25:20] I'M TRYING TO UNDERSTAND THE

[25:21] SCOPE --

[25:22] >> MR. GRAY IS THE FIRST

[25:24] WITNESS.

[25:25] >> MAY WE APPROACH?

[25:26] >> Y