Tyler Robinson Preliminary Hearing Day 3: Judge Rules on Lance Twiggs 11:02 Statement Admissibility and Publication Limits

[04:28] session

[04:30] calling case 251 403576

[04:34] state of Utah versus Tyler James

[04:36] Robinson. Council, please enter your

[04:38] appearances.

[04:40] >> Chad Grimmander, Ryan McBride, Lauren

[04:43] Hunt, David from State, County Attorney

[04:46] Jeff Gray, and Chris Ballard are also

[04:48] present. Good afternoon,

[04:51] >> Kathy Nester, Richard Novak, Michael

[04:53] Bert, and Stacy Visser for Mr. Robinson

[04:56] who's present in the courtroom, your

[04:57] honor.

[04:57] >> Good afternoon, Mr. Robinson. Good

[05:00] afternoon. Uh, and also for the record,

[05:02] uh, the court recognizes

[05:05] uh

[05:07] the presence of victim representative,

[05:09] Miss Erica Kirk. Good afternoon.

[05:12] Uh first with respect to courtroom

[05:14] protocol to maintain security and

[05:16] decorum any individual who exits the

[05:18] courtroom during proceedings will not be

[05:20] permitted to reenter until the recess.

[05:24] All council are expected to take reason

[05:26] reasonable measures to safeguard

[05:29] confidential communication. Such

[05:31] measures may include the use of screen

[05:32] protections

[05:36] on electronic devices and care to avoid

[05:38] inadvertent capture of privileged or

[05:40] private discussions by recording

[05:42] equipment or by those present in the

[05:44] courtroom. And as you note, the

[05:46] microphones on your uh tables are turned

[05:48] off. So please come to the lectum uh for

[05:51] making when you're addressing the court

[05:54] or a second the court will address the

[05:57] camera and still op photo photographer

[05:59] uh camera operator and still

[06:01] photographer and if you both could come

[06:04] forward please to the lectum.

[06:16] All right. Could you both state your

[06:18] names?

[06:19] >> Uh, John Wilson, KSL Television.

[06:21] >> Tess Crowley, Desireette News.

[06:23] >> Good afternoon. Uh, could you state your

[06:26] roles for today's hearing?

[06:28] >> Uh, video recording and streaming of the

[06:31] proceedings.

[06:32] >> I'm the pool still photographer.

[06:34] >> All right. You order?

[06:35] >> No.

[06:35] >> Thank you both for your cooperation.

[06:40] As we begin this afternoon, the court

[06:42] wishes to acknowledge the importance of

[06:44] safety, dignity, and well-being of all

[06:46] those who are present or who may be

[06:48] present during these proceedings,

[06:50] including the parties, council,

[06:52] witnesses, court staff, and members of

[06:54] the public. The court is also mindful of

[06:56] its solemn obligation to protect and

[06:58] uphold the constitutional rights of both

[07:00] Mr. Robinson and Miss Kirk.

[07:03] In furtherance of those important

[07:05] entrance interests, all persons

[07:08] attending these proceedings are reminded

[07:10] that portable electronic devices are not

[07:13] permitted in the courtroom or on the

[07:15] fourth floor. Cell phones are not

[07:17] permitted in the courtroom unless

[07:19] expressly authorized. Any unauthorized

[07:21] possession or use of a cell phone in the

[07:23] courtroom may be addressed by the court.

[07:26] For those individuals who are authorized

[07:28] to have a cell phone, please place your

[07:30] device on silent at this time so that

[07:33] these proceedings may continue without

[07:35] interruption.

[07:37] The court also expects that every person

[07:39] in attendance will be treated with the

[07:40] dignity and respect to which they are

[07:42] entitled to. Consistent with the court

[07:45] standing decorum order, all spectators

[07:47] shall remain quiet, civil, and orderly

[07:50] at all times. Spectators shall not

[07:53] engage in conduct that is distracting,

[07:56] disruptive, provocative, disrespectful,

[07:58] univil, or threatening in any manner.

[08:02] Spectators shall not make audible

[08:03] comments of any kind, shall not shake or

[08:05] nod their heads, and shall not make

[08:07] gestures or other visible

[08:10] reactions during their hearing.

[08:13] Spectators shall also not wear or

[08:15] display pins, buttons, signs, clothing,

[08:19] photo, photographs, or other items

[08:21] expressing support for or in opposition

[08:24] to any person connected with this case

[08:26] or expressing any position concerning

[08:28] the status of this case as a capital

[08:31] offense.

[08:32] The court appreciates the cooperation of

[08:34] all present in maintaining courtroom a

[08:37] courtroom environment that is safe,

[08:39] respectful, orderly, and faithful to the

[08:41] rights of and dignity of every person

[08:44] involved.

[08:46] Finally, I wish to note that this

[08:47] preliminary hearing is scheduled to

[08:49] conclude this Friday at 5:00 p.m. I

[08:52] raise this as simply a reminder for the

[08:54] parties, particularly given that we have

[08:56] now reached the midpoint of this week. I

[08:59] recognize and respect the constitutional

[09:02] rights of all parties. When this

[09:04] preliminary hearing was set, the court

[09:06] allocated a substantial amount of time

[09:08] for both sides to address the matters

[09:10] they consider necessary and appropriate

[09:13] for purposes of this proceeding.

[09:16] The standard at a preliminary hearing is

[09:19] probable cause. And with that in mind, I

[09:22] ask council to remain mindful of the

[09:24] time that remains and manage your time

[09:26] appropriately so each of you is able to

[09:29] fulfill your duties to your respective

[09:31] clients within the time frame that has

[09:33] been provided. And with that, I wish to

[09:36] inquire of a brief overview on what is

[09:39] anticipated from each party in order

[09:42] that court has a roadmap on how we are

[09:45] proceeding for the remainder of this

[09:47] preliminary hearing. First turning to

[09:49] the state and if you wouldn't mind

[09:50] coming forward, Mr. Grunander.

[09:54] >> Thank you, your honor. We anticipate

[09:56] presenting evidence through agent Brian

[09:58] Davis this afternoon. Uh, Sergeant

[10:01] Jennifer Falmina is also present in the

[10:03] courthouse and prepared to testify if we

[10:06] get to her uh today as well. Um,

[10:09] following her testimony, which we

[10:10] believe will carry into tomorrow if we

[10:12] do get to her today, uh, that will close

[10:15] the presentation of the evidence on the

[10:16] part of the state. Thank you, Mr.

[10:18] Grunhander. For defense,

[10:27] >> good afternoon, your honor.

[10:28] >> Good afternoon,

[10:28] >> Michaelberg for Mr. Robinson. Judge, we

[10:31] have two remaining witnesses. Uh, Miss

[10:33] Oliver from the uh ATF and Miss Carner,

[10:38] also from the ATF.

[10:44] >> All right. And to both parties, thank

[10:46] you. I appreciate that. Do both parties

[10:48] anticipate any issues

[10:51] >> uh concluding their case? Obviously,

[10:52] there's variables, cross-examination,

[10:54] and kind of the fog of war that happens

[10:57] in court proceedings, but any uh party

[11:00] anticipate issues uh concluding at or

[11:04] before Friday at 5:00 p.m.

[11:06] >> Not from the state judge.

[11:09] Just want to highlight one issue for the

[11:10] court because it may be um

[11:14] that the court wants to do some time

[11:16] management. Um the state is going to

[11:20] profer a video 11:02 a video recorded

[11:24] 11:02.

[11:27] We have provided the state, I want to

[11:29] say about a day and a half ago, with

[11:31] proposed redactions because we believe

[11:34] that portions of it are not admissible

[11:37] even in a preliminary hearing. And the

[11:39] way we did that is we provided a

[11:41] transcript and then a redacted version

[11:44] of the transcript of the entire video

[11:47] recorded interview. It may be that the

[11:49] court wants to look at

[11:54] the proposed redactions

[11:56] not while court is in session but during

[11:59] some other period of time because the

[12:01] transcript of the video

[12:03] uh which we prepared and we provided to

[12:05] the state so the state could raise any

[12:08] concerns about the accuracy of the

[12:09] transcript that's not an issue. Um the

[12:12] admissibility of portions of the video

[12:13] or the issue is about 20 pages maybe 22

[12:16] pages. So to use court time for the

[12:20] court to look at the proposed redactions

[12:24] may um be an inefficient use of of the

[12:27] time. I'm not tell saying when the court

[12:29] should do it. I'm just saying we may not

[12:30] want to do it between 9 and noon and 1

[12:34] and 5 tomorrow or Friday, but it's going

[12:37] to come up today. And so the question

[12:38] will be when does the court want to

[12:41] engage in the process of reviewing a

[12:44] 22page transcript that has re has

[12:46] proposed redactions. That's

[12:48] >> I appreciate the heads up. Uh Mr.

[12:50] Gernander, do you wish to be heard?

[12:51] >> Yes, judge.

[12:55] >> The state has received the uh proposed

[12:58] redactions and we are prepared to

[12:59] address them uh when that time comes.

[13:02] However, we however we do intend on

[13:04] presenting uh testimony through Mr. Mr.

[13:06] Davis through Agent Davis, and when we

[13:08] get to that point, uh, when it's ripe

[13:10] for discussion, we can address the

[13:12] matter with the court. That would be our

[13:13] preference.

[13:14] >> All right. Well, I'll address it as it

[13:16] comes. And, uh, to the defense, uh, with

[13:19] the remaining time, do you feel

[13:21] confident that it is sufficient to

[13:23] accomplish your duty?

[13:26] >> We do, your honor.

[13:27] >> Thank you.

[13:29] All right. Does either party require the

[13:31] benefit of the record before we begin?

[13:34] To this state,

[13:47] >> Ryan McBride for the state, your honor.

[13:49] uh just to address an issue that's come

[13:50] up and we expect to come up as we enter

[13:52] the second half of this preliminary

[13:53] hearing um regarding the admission of

[13:56] exhibits.

[13:59] Under rule 104A, the court must decide

[14:01] preliminary questions about whether the

[14:02] witness is qualified or privilege exists

[14:05] or evidence is admissible.

[14:07] In so deciding the court is not bound by

[14:09] the rule of evidence, the rules of

[14:11] evidence except those on privilege.

[14:15] uh in our and I'm bringing this up again

[14:17] because it's likely to come up and it is

[14:19] going to affect the procedures we use as

[14:21] we go forward. The court holds two roles

[14:25] really at this stage. One is a

[14:27] gatekeeper role on admissibility and the

[14:29] second is the factfinder role as the

[14:32] magistrate and I know you've referred to

[14:33] to those two roles uh earlier in this

[14:36] proceeding.

[14:37] And the court rule 104A means the court

[14:40] can consider evidence even though its

[14:42] admissibility has not yet been

[14:44] determined in its gatekeeper role. And

[14:48] uh then after it has been admitted it

[14:51] can determine the admissible qualities

[14:53] of that evidence or that exhibit. And

[14:56] that uh is especially relevant at a

[14:59] preliminary hearing where foundational

[15:00] evidence is reliable hearsay under 1102

[15:03] B3. Um, even at trial, State v. Griffin,

[15:07] which is a 2016 UT33

[15:09] Utah Supreme Court case, uh, the court

[15:12] has held the rules of evidence do not

[15:13] apply to evidence used to establish

[15:15] foundation for admission of other

[15:17] evidence. It's a quote from paragraph

[15:19] 33. Um, so the point is foundational

[15:23] rulings on on admissibility can consider

[15:25] evidence that is not in itself in and of

[15:27] itself admissible. That's proper. The

[15:31] second point is um the courts of appeals

[15:33] recognize a presumption that the court

[15:36] considers when acting in its factf

[15:38] finding role only the admissible

[15:40] evidence and disregards any inadmissible

[15:43] evidence. Most commonly that comes up in

[15:46] a bench trial type case where prior bad

[15:49] acts evidence is admitted and it can

[15:51] have dual inferences. State v. Adams was

[15:53] one of those cases. That's 2011 UT app

[15:56] 163. And what it means is we know that a

[15:59] factfinder is not tainted by the judge's

[16:02] role as a gatekeeper even though the

[16:04] judge as a gatekeeper considers

[16:06] potentially inadmissible evidence.

[16:10] Um it also means that the court doesn't

[16:13] have to distinguish which hat it's

[16:15] wearing um as we go through the

[16:17] proceeding. Um in this circumstance,

[16:21] this this hearing is taking place

[16:22] outside the presence of the jury. um the

[16:25] state has laid and intends to lay and

[16:27] continue to lay foundation in open

[16:28] court. Um such foundation sometimes will

[16:31] include discussion of the actual

[16:33] exhibits rather than just profers as

[16:35] well as foundation for the exhibits. Now

[16:37] I don't think that there's any issue

[16:39] between us and the defense in

[16:40] understanding that kind of statement of

[16:42] the law. I think the issue that has come

[16:45] up is under rule 104b determinations of

[16:49] admissibility take place outside the

[16:50] presence of the jury. The defense uh

[16:53] appears to be assuming the jury to be

[16:56] basically the potential jury pool and

[16:59] trying to trying to uh avoid the

[17:03] potential taint to a jury pool that

[17:06] discussion of evidence which may or may

[17:08] not be admissible may cause. I think

[17:10] that's a fair point. I just want to put

[17:12] the court on uh notice of our view and

[17:15] how we have and intend to proceed as we

[17:18] move forward. Um, under 10 104B, that

[17:21] determination takes place out the

[17:23] presence of the outside of the presence

[17:24] of the jury.

[17:27] Under under the rules, there's a

[17:28] presumption that these hearings and this

[17:30] hearing is open to the public, including

[17:32] admissibility hearings. Um, because of

[17:35] that, we intend to move forward and move

[17:37] the admission of evidence and argue the

[17:39] admission of evidence as in in open

[17:42] court. Should the court close the

[17:45] hearing, of course, that would change,

[17:47] but that's because that's the

[17:48] presumption in the law and that's

[17:51] conforms with 104B. That's our intention

[17:54] unless the court or council moves to

[17:56] unless court or council moves to close

[17:57] the hearing. So, in summary, the court

[18:00] could a court can and often should

[18:02] consider evidence and review the

[18:04] exhibits before admission. Two, the

[18:06] court is not tainted by doing so and can

[18:09] distinguish between admissible evidence

[18:11] and improper evidence. And there's no

[18:15] need for the court to identify which hat

[18:16] it's wearing. And three, absent closure,

[18:19] we'll move forward with our evidence in

[18:20] open court.

[18:22] >> All right. Well, well, I'll hear from

[18:24] defense if you want to be heard on that

[18:26] issue. If I see you in Okay. Just brief

[18:29] >> briefly.

[18:30] Briefly, your honor, I'm sorry. I have

[18:32] two microphones. I'm just trying to um

[18:36] be technologically savvy. Um I think the

[18:40] 104 issue I agree completely with Mr. um

[18:43] McBride on what he's saying. Um

[18:47] because of the Supreme Court's ruling in

[18:49] Archeletta concerning the availability

[18:51] to the public of exhibits from a

[18:54] preliminary hearing, which of course is

[18:56] a fact specific inquiry by this court.

[19:00] Um, we will continue to raise concerns

[19:02] about our client's right to a fair trial

[19:03] when we think it's appropriate and the

[19:05] court will make the rulings it makes.

[19:08] That's all I want to say.

[19:09] >> All right.

[19:11] Right. To both parties, uh, the standing

[19:13] request remains when you are moving a

[19:16] piece of evidence into uh to the record,

[19:19] I ask three steps. Admissibility to

[19:22] admit it to be published in the

[19:25] courtroom and then to be published on

[19:27] that screen. And I'm going to have the

[19:29] screen adjusted slightly um because I

[19:33] want if it's published I want it to be

[19:34] meaningfully able to be viewed. And I

[19:37] noticed uh somebody sent me a screenshot

[19:40] that that angle creates an interesting

[19:42] um angle that kind of distorts it. So in

[19:46] the interest of if we're going to be

[19:48] transparent, it should be viewable

[19:50] transparent. So we'll adjust that screen

[19:53] uh briefly, but please address those

[19:57] three issues. And I understand one side

[19:58] or the other might say, "Well, we agree

[20:00] or we don't agree." Period. But please,

[20:02] I'm trying to make sure that the record

[20:04] before us is a clean and clear record.

[20:06] So, if you would do that, the court

[20:08] would appreciate that. All right. Uh,

[20:11] anything further?

[20:13] >> No, your honor.

[20:14] >> All right. Uh, the court acknowledges

[20:16] that the exclusionary rule is in effect.

[20:18] At this time, any witness who is subject

[20:20] to exclusion should be excused from the

[20:22] courtroom. I will leave it to the

[20:24] parties to monitor the courtroom to

[20:26] ensure that uh compliance is is adhered

[20:29] to. With that, turning to the state, you

[20:32] may call your next witness.

[20:37] >> Yes. I mean, I want the the the press to

[20:40] be able to see it, too. But when it's

[20:43] there is a bit of a distortion when it's

[20:45] at that particular angle. So, uh, while

[20:48] the parties are getting moving forward,

[20:50] go ahead and adjust it and let's put a

[20:52] sample image of something has nothing to

[20:54] do with this case on the screen.

[20:58] >> That's another issue. I I don't know

[21:00] that it is projecting yet

[21:04] and I don't know if we need to take a

[21:05] break to make sure that

[21:08] >> is it not projecting on the monitors.

[21:12] >> Okay.

[21:14] Uh technology is challenging us again.

[21:18] Well, uh what's what's our thought staff

[21:21] on projecting? Is this something that's

[21:25] not going to be cured by turning off and

[21:27] turning on? I'm assuming.

[21:35] >> All right. If you if you all of you

[21:37] council table, again, I'm trying to do

[21:38] this to get this out of the way so we

[21:40] can move forward cleanly. if you

[21:42] wouldn't mind turning off your monitor

[21:43] and then turning it back on. Um, and

[21:49] and if I could borrow somebody to do

[21:51] that to the witness monitor as well, so

[21:53] we all get them in sync. Thank you, sir.

[21:55] I appreciate that. And for the uh lectum

[21:58] as well. Let's just see if we can get

[22:00] that up because that could cause a

[22:02] delay. I just want to knock this out

[22:04] first.

[22:06] >> Yes.

[22:16] Where would that TV go?

[22:23] >> If that doesn't address any security

[22:26] issues, let's do that. I just want to

[22:28] make it easy that way that TV can be

[22:30] more flat and it's not a distorted view

[22:33] and then the media can look at that TV.

[22:35] Again, transparency needs to be

[22:37] viewable, not just there in concept. All

[22:41] right. Yeah, let's go ahead and do that.

[22:43] How are the monitors looking?

[22:45] >> Nothing.

[22:47] All right.

[22:52] >> HDMI.

[22:53] >> I see. Could I have someone with your

[22:56] laptop plug in so we can test? So we can

[22:59] check if it's receiving the data or the

[23:03] information from your laptop to allow us

[23:05] to project. That may be the issue.

[23:07] >> Mr. Ellis is plugged in.

[23:09] >> All right, let's take a look here.

[23:18] >> I appreciate the party's patience,

[23:21] especially after I just said we're at

[23:23] the halfway point.

[23:26] >> We're getting a thumbs up. All right.

[23:28] So, it's displaying for defense for

[23:32] prosecution.

[23:34] >> We're working on it right now.

[23:37] >> Yes.

[23:38] >> All right. And on the screen monitor

[23:41] here, it looks like something came up.

[23:46] >> All right. And All right. We'll just

[23:49] hope that the monitor for the witness

[23:51] works as well. All right. So, we're

[23:53] ready to go.

[23:57] you want

[23:59] >> just bring it in and go ahead and we'll

[24:01] get started and how much time is needed

[24:04] for that.

[24:08] >> Well, let's go ahead and proceed and

[24:09] then when we when we take a break then

[24:12] we can do that. But for now, uh the

[24:14] media if you can see that TV if you have

[24:16] any problems please let me know and

[24:19] we're going to bring in that second TV.

[24:20] We just want to get get the train on the

[24:22] track here. All right, Miss Hunt.

[24:25] >> This date calls. Agent Brian Davis.

[24:29] >> Agent Davis, if you would like to come

[24:31] forward and be sworn in.

[24:33] >> You do solemnly swear that the testimony

[24:34] you shall give in the case now penny

[24:36] before the court will be the truth, the

[24:37] whole truth, and nothing but the truth.

[24:39] So help you God.

[24:41] >> All right, agent, if you wouldn't mind

[24:43] having a seat. To your left is a water

[24:44] bottle. And if you're seated, you'll

[24:47] have to adjust that microphone, pull it

[24:49] down, and then pull it toward you to

[24:51] ensure that it is uh picking up your

[24:55] voice and we have a good record.

[25:01] >> All right, Miss Hunt, your witness. If

[25:03] >> you could please state your name and

[25:05] spell your last for the record.

[25:06] >> Yeah, it's Brian Davis at D- A V I S.

[25:10] >> What is your occupation? I'm an agent

[25:13] with the Utah State Bureau of

[25:14] Investigation.

[25:18] >> How long have you been with uh is it

[25:20] fair to call that SBI?

[25:22] >> Uh correct. Yes.

[25:23] >> How long have you been with the SBI?

[25:24] >> Uh total 18 years.

[25:27] >> I want to briefly go over your

[25:29] experience as a law enforcement officer

[25:31] generally. Um actually are you a law

[25:35] enforcement officer in that capacity?

[25:36] >> Uh yes, correct.

[25:37] >> How long have you been a law enforcement

[25:39] officer?

[25:40] >> A total of 27 years.

[25:43] You mentioned you were with SBI for 18.

[25:45] Is that right?

[25:45] >> Correct. Yep.

[25:46] >> What other agencies were you with prior

[25:48] to SBI?

[25:49] >> So, Department of Public Safety, I've

[25:51] been a state trooper for eight years. Uh

[25:53] 18 years with SBI and uh one year with

[25:56] the Utah Transit Authority Police.

[25:59] >> We've heard talk from other officers

[26:02] about post. What is POST?

[26:04] >> It's Peace Officer Standards and

[26:06] Training.

[26:07] >> Did you complete that?

[26:08] >> I did.

[26:09] >> What year did you complete that? 1999.

[26:16] >> Is that a type of certification that you

[26:19] hold?

[26:20] >> Yeah, it's a statewide certification

[26:21] that any peace officer in state of Utah

[26:24] uh local, state, county all uh go

[26:26] through to become a certified peace

[26:28] police officer.

[26:30] >> Has that certification lapsed or been

[26:32] any gaps in that time since you received

[26:34] it in 1999?

[26:35] >> No, it's been uh constant since then. I

[26:39] want to talk about a bit about your

[26:41] training experience within law

[26:44] enforcement. Uh what roles have you had

[26:47] at SBI? Uh I began as a a call

[26:51] enforcement team. We did covert and

[26:53] overt operations. Um I was assigned to

[26:56] an ATF uh the PSN task force focusing on

[27:00] uh violent felons with guns and drugs. I

[27:03] was on a FBI task force uh safe streets.

[27:07] It was a gang violent crime task force.

[27:09] I was on the US Marshalss fugitive uh

[27:11] apprehension team task force. Um I've

[27:15] been I've been on several different OICI

[27:18] protocol teams, officer involved

[27:19] critical incident teams around the state

[27:20] of Utah and within SBI. I've been on

[27:23] dozens of those scenes. Um

[27:26] and uh within major crimes of SBI, I've

[27:29] I've been uh we've worked a variety of

[27:33] cases. So I work anything from violent

[27:34] crime, homicides,

[27:36] sex crimes, drug crimes, uh firearm

[27:39] crimes, white collar crime, fraud. I was

[27:42] also on a task force with a FBI public

[27:44] corruptions task force as well.

[27:46] >> Was that all on the job training or did

[27:48] you receive specific um training or

[27:51] conferences, things like that?

[27:53] >> Yeah, throughout the years, various

[27:54] trainings, conferences uh for for in all

[27:58] all those capacities. Um over the years

[28:01] >> you mentioned you've been a part of

[28:02] homicide investigations.

[28:04] >> Yes.

[28:05] >> Can you estimate how many?

[28:07] >> Um

[28:09] my best guess would be 60 plus where

[28:11] I've had somewhat some involvement. Um I

[28:15] also currently work on a cold case unit

[28:17] with NSBI. So, we consult with uh

[28:20] agencies around the state of Utah and

[28:22] I've probably consulted on over 50 of

[28:25] those as well in various capacities and

[28:27] roles.

[28:28] >> Have you received training specific to

[28:30] homicide investigations?

[28:31] >> Yes, I have.

[28:33] >> What types of things have you been

[28:34] trained on in that regard?

[28:36] >> Um uh several different times, week-long

[28:40] course training conferences on homicide.

[28:43] um from

[28:45] um case studies to how to manage manage

[28:48] a case. Um

[28:51] also I've been on several trainings with

[28:54] like crime scene investigation. I'm u a

[28:56] ferrocertified. It's a it's a 3D ferro

[28:59] scan of of crime scenes.

[29:01] >> What's a ferrocan?

[29:02] >> It's a 3D laser imaging uh uh that is

[29:06] used pretty commonly on crime scenes. It

[29:08] just accurately documents crime scenes.

[29:11] Um,

[29:13] and uh I've been on

[29:16] uh I'm a certified I've been certified

[29:18] as a a forensic interview and the

[29:20] forensic interview technique with more

[29:22] more child victims. So just various

[29:24] trainings like that.

[29:27] >> You mentioned currently you're a part of

[29:29] the cold case team within SBI.

[29:31] >> Correct.

[29:33] >> Have you been assigned

[29:35] as part of the investigation into the

[29:37] homicide of Charlie Kirk?

[29:39] >> Yes.

[29:41] And what is your role? Uh do do you have

[29:44] a a specific role in that investigation?

[29:46] >> Yes, I was assigned uh to be a a case

[29:49] agent along with agent Dave Hull.

[29:52] >> What does it mean to be a case agent?

[29:55] >> Essentially, you're you manage the case,

[29:57] responsible for it ultimately. Um you

[30:01] you you direct um the cases as you go

[30:04] along. You uh uh make assignments uh as

[30:09] needed. Ultimately, everything comes

[30:11] back to to you like in the form of

[30:13] reports, evidence and such. Um, and then

[30:18] ultimately you're you screen that case

[30:20] if applicable to the appropriate county

[30:23] attorney or DA.

[30:24] >> You mentioned that you are a co-case

[30:26] agent or or were with agent Hull. Is it

[30:30] typical to have two case agents on a

[30:32] case?

[30:33] >> Uh, it can be on a especially on a large

[30:36] uh large case. Yes. Has this particular

[30:39] case been large?

[30:40] >> Yes, it has.

[30:46] >> Have other police agencies been involved

[30:48] in the investigation of this case?

[30:51] >> Yes.

[30:52] >> Who has been designated as the primary

[30:54] investigative agency?

[30:55] >> Uh the State Bureau Investigation is the

[30:57] primary investigating agency.

[31:01] I know there are probably uh several or

[31:04] dozens, but what other agencies have you

[31:06] been working with?

[31:08] >> Uh FBI, u

[31:11] um ATF as as well, um several local

[31:16] state uh agencies,

[31:18] UVU police, ORM police, Utah County

[31:21] Sheriff, uh Washington County Sheriff,

[31:23] St. George PD, most of all the agencies

[31:25] within Utah County and even others

[31:28] outside of the county. So, we've worked

[31:30] a lot of agencies with this case. It was

[31:32] a pretty large scale investigation.

[31:35] >> You mentioned ATF. What does that stand

[31:36] for?

[31:37] >> Alcohol, tobacco, firearms.

[31:42] >> All right. I know a lot about um what

[31:45] we've So, as a case agent, have you been

[31:47] in court during the this preliminary

[31:50] hearing?

[31:50] >> Yes.

[31:51] >> You've heard prior testimony?

[31:52] >> Yes.

[31:54] We've talked a lot about the events of

[31:56] September 10th of 2025. I want to direct

[31:59] you your attention to September 11th,

[32:02] 2025. Do you remember that day?

[32:04] >> I do.

[32:08] >> Um, what happened on that day in

[32:10] relation to your investigation?

[32:12] >> Um, I I spent the day at the at the

[32:15] command post with various assignments.

[32:17] Um, that evening, it was about 8:30 p.m.

[32:20] I believe the 11th. Um, I received a

[32:23] phone call from Sergeant El Scholes

[32:25] requesting that I travel to St. George.

[32:28] >> Who is Sergeant Elsholes? What What um

[32:31] agency is Sergeant El Scholes with?

[32:33] >> Uh, with SBI

[32:36] >> and he requested that you travel to St.

[32:38] George.

[32:38] >> Correct.

[32:39] >> What was the reason stated for that? Uh

[32:40] we received information that an

[32:42] individual um had was turning himself in

[32:46] or had turned was going to turn himself

[32:48] in uh to police in regard to his

[32:51] involvement with the incident, the

[32:52] shooting on UVU campus.

[32:57] >> And I'm sorry, what time did you get

[32:59] that information, that call?

[33:01] >> About 8:30 p.m.

[33:02] >> Did you travel down to St. George?

[33:04] >> I did.

[33:05] >> On what day?

[33:07] >> Uh of September 11th.

[33:11] Did anyone else go with you?

[33:13] >> Uh yes. So we we traveled to the Salt

[33:16] Lake City airport to a hanger there and

[33:18] we were flown down on a fixed wing

[33:19] aircraft. It was uh Sergeant El Scholes.

[33:23] Uh it was Agent Fulier with FBI, Agent

[33:25] Anderson with FBI,

[33:28] um Ryan McBride and myself and the two

[33:30] pilots.

[33:31] >> And who was Ryan McBride?

[33:33] >> With the Utah County Attorney's Office.

[33:37] >> What time did you arrive in St. George.

[33:39] >> Uh, we landed probably about 11 11:30

[33:44] p.m. at the St. George airport.

[33:47] >> And again, this is this would be the

[33:48] evening of September 11th, 2025.

[33:50] >> That's correct.

[33:52] >> Where did you go once you landed in St.

[33:54] George?

[33:55] >> There we are transported via ground to

[33:57] the Washington County Sheriff's

[33:59] Department.

[34:03] >> Did you coordinate at that time with any

[34:05] other law enforcement agencies down in

[34:07] southern Utah? Oh, we did.

[34:10] >> You did?

[34:10] >> We did. Yeah.

[34:11] >> What other agencies?

[34:12] >> Uh, well, with FBI as we were traveling

[34:15] and then along with u mainly the

[34:17] Washington County Sheriff's Department,

[34:18] we also have agents with an SBI assigned

[34:20] to the southern Utah area. So, working

[34:23] with them as well, just making plans and

[34:25] coordinating resources and manpower and

[34:27] personnel.

[34:28] >> And you stated you went to the

[34:30] Washington County Sheriff's Office.

[34:32] >> Uh, yes.

[34:33] >> What time did you arrive there?

[34:35] probably somewhere close to midnight,

[34:37] maybe just a little bit before midnight

[34:38] of the 11th.

[34:40] >> What happened next?

[34:42] >> So, we met several other investigators,

[34:44] agents, and detectives there um along

[34:47] with some other prosecutors. There were

[34:49] some federal prosecutors as well that

[34:50] were present. Um and from there, we we

[34:53] began uh kind of making plans,

[34:56] determining how to handle the situation

[34:59] there. Did you you mentioned the reason

[35:03] you went down there was you had been

[35:05] told that an individual wanted to turn

[35:07] themselves in.

[35:08] >> That's correct.

[35:08] >> Did you observe that individual?

[35:10] >> I did.

[35:11] >> And where was that person at the time?

[35:14] >> So when we arrived um we went into the

[35:16] the room that we were in. It was one of

[35:18] the their office the cubicles there. uh

[35:20] on the the wall there was a TV a

[35:22] television monitor where I have viewed

[35:24] an individual on that screen that was

[35:26] sitting in one of the the soft interview

[35:29] rooms. Um that room was equipped with

[35:31] audio video recording uh device and so I

[35:34] I observed him on that screen at that

[35:36] time.

[35:39] >> Uh were you aware or did you become

[35:41] aware what time that individual arrived

[35:43] at Washington County Sheriff's Office? I

[35:46] was told he arrived there about 900 p.m.

[35:49] that evening.

[35:51] >> And was he with anybody else?

[35:54] >> He had been Yeah, he'd come there with

[35:56] his parents and a family friend.

[35:59] >> Did you speak with this individual that

[36:02] we've been talking about?

[36:04] >> Yes, I did.

[36:06] >> Did you get his name?

[36:08] >> Yes, we obtained his name and date of

[36:09] birth.

[36:10] >> What was his name?

[36:11] >> Tyler Robinson.

[36:15] Did he tell you that himself?

[36:16] >> Uh, he did.

[36:19] >> You mentioned other individuals came

[36:22] there with him. Um, and then you also

[36:25] said that you had kind of coordinated

[36:26] with the team of of law enforcement

[36:28] officers that were there. Were those

[36:31] other individuals spoken with by law

[36:33] enforcement?

[36:33] >> They were.

[36:36] >> Uh, let's go through them. um

[36:42] who

[36:44] or I guess how how did that happen? Who

[36:46] was who was spoken to first of of the

[36:49] other individuals?

[36:50] >> Uh so Tyler's mother was interviewed by

[36:54] uh SBI agent Green and FBI agent Cox.

[36:59] Um, and then kind of simultaneously his

[37:01] father was being interviewed by SBI

[37:04] agent Terry and FBI agent Smith.

[37:08] Um, and also at that time uh the family

[37:11] friend Mike Mitchell was interviewed by

[37:14] um other agents as well.

[37:18] >> And you said that this was these

[37:21] interviews were being conducted

[37:22] simultaneously.

[37:23] >> Uh, yes. Were

[37:27] you part of um

[37:30] the interview with either of Tyler's

[37:33] parents?

[37:34] >> Uh yes. Yes. Myself and Agent Fulier.

[37:37] Did I misspeak earlier? Myself and agent

[37:39] Fulard interviewed the mother.

[37:41] >> All right. Let's let's make sure the

[37:43] record's clear on that. So, Agent

[37:44] Fulier, what agency is is he with?

[37:47] >> Uh with FBI.

[37:48] >> And yourself interviewed Tyler's mother?

[37:50] >> Yes, that's correct.

[37:51] >> Um I just want to make sure the record's

[37:53] clear. Who interviewed Tyler's father?

[37:55] Yeah, I think I might misspoke. It was

[37:56] Agent Hol Green, Agent Cox that met with

[37:59] his father.

[38:00] >> And then who spoke with family friend

[38:03] Mike Mitchell?

[38:04] >> Uh, Agent Terry, Agent Smith

[38:11] >> down in St. George, Washington County

[38:14] Sheriff's Office. Was Mr. Robinson

[38:16] detained at that time?

[38:18] >> Yes, he was.

[38:20] >> Was he formally arrested at that time?

[38:23] >> Yeah. following after all the in resort

[38:26] completed when we talked to everybody um

[38:28] that he was formally arrested at that

[38:29] time

[38:31] >> and I'm going to come back to that in a

[38:33] second. Um well I excuse me where did

[38:38] the arrest take place? uh at the

[38:40] Washington County Sheriff's Office.

[38:51] >> And what date did that happen on?

[38:54] >> Uh would have been September 12th. Um

[38:57] was about

[38:59] 4:00 a.m. I believe of September 12th.

[39:08] >> All right. Okay, I want to show just on

[39:11] your screen, not for public yet, what's

[39:14] been marked for identification as states

[39:16] exhibit 15. Let me know when you're able

[39:19] to see that.

[39:29] >> Okay, it's there.

[39:33] Uh before I ask you about that, did you

[39:35] have an opportunity to you you stated

[39:38] that you observed Mr. Robinson um at

[39:40] Washington County Sheriff's Office. Is

[39:42] that right?

[39:42] >> Yes, that's correct. Your

[39:44] >> honor, could I have a moment with Miss

[39:45] Hunt? May I have a moment with Miss?

[39:48] >> You may.

[39:50] >> You're just going to do the redacted

[39:51] version.

[39:54] Thank you.

[39:56] >> That may happen a couple more times as

[39:58] we go through exhibits because of

[40:00] agreements and disagreements that we

[40:02] have.

[40:03] >> Thank you for the heads up

[40:06] >> at Washington County Sheriff's Office

[40:08] where you initially observed Mr.

[40:11] Robinson. Uh you stated that he was in a

[40:14] room. Is that room equipped with video

[40:16] recording?

[40:17] >> Yes, it is.

[40:18] >> Is that standard practice for a facility

[40:20] like that to have video recording in

[40:22] such a room? Yes. Very, very common.

[40:25] >> Have you reviewed that video?

[40:27] >> I have.

[40:28] >> And in your review of that video, does

[40:29] it fairly and accurately depict Mr.

[40:32] Robinson at that that time?

[40:34] >> It does.

[40:36] >> Um, you see on your screen what's been

[40:38] marked as states exhibit 15. Do you

[40:41] recognize that?

[40:42] >> I do.

[40:43] >> What is that?

[40:44] >> That's the interview room in which um

[40:46] Mr. Robinson was was se seated and

[40:49] waiting.

[40:54] state moves to admit exhibit 15,

[40:59] >> Miss Hunt. And and in the other two

[41:02] steps, what's your request?

[41:04] >> Oh, uh we would ask to admit it into

[41:06] evidence. Um we have defense council and

[41:10] I have uh agreed upon

[41:15] uh I guess redaction um of of the video

[41:19] and I would ask to publish it um both to

[41:23] the courtroom and to the uh media.

[41:27] >> Mr. Novak

[41:29] is silent. Correct. M.

[41:31] >> Yes.

[41:32] >> Um yes your honor. Miss Hunt is correct.

[41:34] The state had originally proposed um a

[41:38] longer

[41:41] um image with audio and we've agreed to

[41:44] a shorter image without audio and so

[41:54] >> that's correct.

[41:55] >> So, um we're fine with all three steps

[41:58] as to this exhibit.

[42:00] >> All right. Does the state wish to review

[42:04] this to make sure that what's queued up

[42:06] comports with what you believe? If not,

[42:08] we can move forward. I just want to

[42:10] allow all parties the opportunity to

[42:11] double check.

[42:13] >> Um, let me just confer with my

[42:16] parallegal.

[42:27] Oh, probably right.

[42:42] It's has no audio. So we would like to

[42:46] um admit and publish it at this time.

[42:49] >> All right. State exhibit 15 is admitted

[42:52] pursuant to uh discussion and may be

[42:56] published in the courtroom and may be uh

[43:00] recorded or uh transmitted

[43:02] electronically. Just uh

[43:04] >> and and your honor, of course, this is

[43:07] subject to all of the objections which

[43:09] have been previously reserved in writing

[43:12] and reiterated over the last couple of

[43:15] days. I I assume that we don't need to

[43:17] start over with that today. Thank you. I

[43:19] appreciate that. I note the standing

[43:21] objection by defense as pre previously

[43:24] made. Uh and that objection is overruled

[43:27] and this exhibit is admitted.

[43:29] >> And in this case, it wouldn't be the

[43:30] 1102 issues. It would be the um

[43:34] electronic media coverage of the

[43:36] proceeding.

[43:37] >> Thank you for that clarification, Mr.

[43:39] Nebach. I appreciate that. All right.

[43:41] With that, uh to the media, can you view

[43:43] that screen? Okay. All right. All right.

[43:46] Uh, states exhibit 15 may be played.

[43:54] >> And Agent Davis, who are we seeing here?

[43:58] >> That's Tyler Robinson.

[44:00] >> And although we are watching it on

[44:02] video, what is he wearing at this time?

[44:05] >> He's working a dark colored baseball cap

[44:07] with a has like a I believe it's like

[44:09] our maybe the Herie symbol on it. Like a

[44:12] white symbol on front. It's a burgundy

[44:14] short sleeve shirt with no graphics.

[44:16] It's uh blue jeans and gray and white

[44:20] tennis shoes. I believe they're Converse

[44:22] style tennis shoes.

[44:25] >> Thank you. Was Was Mr. Robinson You

[44:27] stated that he was arrested uh in the

[44:30] early hours of September 12th. Is that

[44:32] right?

[44:33] >> Yes, that's correct.

[44:34] >> Did he remain in Washington County

[44:36] Sheriff's Office or was he taken

[44:37] somewhere else? No, he was transported

[44:39] from there to the Utah County Jail.

[44:44] >> Prior to being transported to the Utah

[44:46] County Jail, um was any

[44:49] I guess personal property taken from

[44:51] him, clothing, anything like that?

[44:54] >> The only thing that was so prior to like

[44:56] our arriving to the St. George to the

[44:58] Washington County Sheriff's Office, um

[44:59] his cell phone was was seized and taken

[45:02] from his person. Um, but that was the

[45:05] only thing that was taken from him at

[45:06] that time.

[45:08] >> After he was transported to Utah County

[45:10] jail, was any personal it were any

[45:13] personal items taken from him?

[45:15] >> Uh, yes, they were.

[45:17] >> And what were those? Uh after a search

[45:19] warrant was was granted, his clothing

[45:22] was was recovered along with buckle

[45:25] swabs to collect his DNA and uh major

[45:28] case prints, which is fingerprints,

[45:31] palm prints, pretty much the entire

[45:33] hand. Those are all collected from him.

[45:38] >> And sorry, you may have already stated

[45:39] what time when did he arrive in in Utah

[45:42] County? Uh we we arrived at the Utah

[45:46] County Jail about 7:00 a.m. on the 12th,

[45:49] September 12th, and he was formally

[45:51] booked in at about 8 8:00 a.m. of that

[45:54] that morning. And then I was the booking

[45:56] officer.

[45:57] >> What does it mean to be the booking

[45:58] officer? Um I

[46:02] uh filled out the necessary paperwork

[46:05] essentially with the with the jail um

[46:07] which which gives the the individuals

[46:10] personal identification of the charges

[46:12] the probable cause statement and then

[46:14] it's signed and and submitted to the

[46:16] system.

[46:18] >> All right. I want to talk a bit about

[46:19] search warrants. Some of the search

[46:21] warrants that were um executed in this

[46:24] case as part of the investigation. Were

[46:27] search warrants obtained specifically

[46:29] for areas in southern Utah?

[46:31] >> Yes, they were.

[46:32] >> And obviously, do not give me exact

[46:33] addresses, but generally for what

[46:35] locations?

[46:36] >> It was the residence of Tyler Robinson

[46:38] and the residents of his parents.

[46:41] >> Were those warrants executed?

[46:43] >> They were.

[46:44] >> By whom?

[46:45] >> Uh, the residence of of Tyler Robinson

[46:47] was was a team uh led by Sergeant Fabina

[46:52] uh with SBI along with Utah State Crime

[46:55] Lab.

[46:56] and the residence of his parents was a

[46:59] team led by the FBI, their evidence

[47:01] response team.

[47:03] >> Are you aware of what date or dates, if

[47:06] applicable, those warrants were

[47:08] executed?

[47:09] >> Yeah, uh September 12th. Um I I believe

[47:12] Tyler's residence, they started the

[47:14] search warrant about 8:00 in the morning

[47:16] and then his parents' residence, they

[47:18] started about 400 p.m. um of this of

[47:21] September 12th.

[47:22] So, to be clear, you stated who was um

[47:25] involved in executing those warrants.

[47:27] Were you physically present for the

[47:28] execution of either of those warrants?

[47:30] >> No, I was not.

[47:32] >> Are you aware

[47:35] of whether Mr. Robinson lived with

[47:38] anyone else at that residence at the

[47:40] time?

[47:40] >> Yes.

[47:41] >> Uh do you know who that was?

[47:42] >> Uh Lance Twix.

[47:49] >> And we won't get too into it right now.

[47:51] We'll cover this with Sergeant Fomina,

[47:52] but did you receive information from

[47:54] officers involved in those execution of

[47:56] those warrants about what, if anything,

[47:58] had been found?

[48:00] >> Yes, I did.

[48:04] >> All right. Turning to another area as as

[48:06] part of this investigation.

[48:08] You have previously mentioned that a

[48:10] family friend came in initially um with

[48:14] uh the Robinsons. Um who was that family

[48:17] friend?

[48:18] >> His name was Mike Mitchell. And who is

[48:20] he in relation to the Robinsons?

[48:22] >> So he's a family friend, a close a good

[48:24] family friend.

[48:26] >> And what was his involvement here?

[48:30] >> So he helped facilitate um working with

[48:34] Tyler and his parents um with the

[48:36] sheriff's department to for Tyler to

[48:38] turn himself in.

[48:40] >> And I believe you mentioned previously

[48:41] that law enforcement conducted an

[48:43] interview with Mr. Mitchell.

[48:45] >> They did.

[48:46] >> Remind us when that interview occurred.

[48:48] So, that was the early morning hours of

[48:51] September 12th at the Washington County

[48:54] uh Washington County Sheriff's

[48:55] Department.

[48:57] >> And I know you've already stated, but

[48:58] remind me who was present for that

[49:00] interview.

[49:01] >> That one was Agent Terry and Agent

[49:02] Smith.

[49:04] >> What agencies are they with?

[49:06] >> Uh Terry's with uh SBI and Smith is with

[49:10] FBI.

[49:13] Are you aware if a second uh interaction

[49:16] or statement was collected from Mr.

[49:18] Mitchell?

[49:19] >> Yes, it was.

[49:20] >> When did that happen?

[49:21] >> It was March 31st of this year.

[49:24] >> Who was present at that time?

[49:27] >> Uh it was Ryan McBride, um Chad

[49:30] Grunander, Kimberly Derler, and Agent

[49:33] Chris Terry with SBI.

[49:36] >> You mentioned Ryan McBride, Chad

[49:37] Grunander, and Kimberly Derler. What

[49:39] office do they work for? uh the Utah

[49:42] County Attorney's Office.

[49:44] >> And you mentioned Agent Chris Terry.

[49:47] >> Yes.

[49:47] >> So you were not present for this

[49:49] collection of this statement?

[49:50] >> No, I was not.

[49:51] >> Have you communicated with agent Chris

[49:53] Terry about how this happened?

[49:55] >> Yes, I have.

[49:57] >> How did this happen?

[49:58] >> So all those individuals met with uh

[50:01] Mike Mitchell at was the St. George well

[50:04] was at the St. George court office uh

[50:06] court house courthouse there. Um they

[50:08] met and and discussed briefly was going

[50:11] to kind of talk generally about the

[50:12] situation. Uh from there Mr. Mitchell

[50:16] was given a handwritten 11:02 paper

[50:19] statement and he left the room went into

[50:22] a separate office by himself was there

[50:25] for about an hour where he hand u hand

[50:28] wrote a statement filled the statement

[50:29] out. When that was complete he came back

[50:32] into the room where the others were

[50:33] waiting and provided that 11:02

[50:35] statement to them. We've heard quite a

[50:38] bit a lot quite a bit about 11:02

[50:41] statements. Sounds like there's an

[50:42] official form that is used.

[50:44] >> Um what's present on that form if you

[50:46] know

[50:47] >> there's an admission or warning given on

[50:49] those forms that states that the

[50:52] information you're giving is true and

[50:53] accurate to the best of your knowledge

[50:55] um that any false statement that is is

[50:58] given or may be given would be uh

[51:00] punishable by a class A misdemeanor.

[51:03] Aside from that being written on the

[51:05] form, are you aware if this admonition

[51:07] was discussed with Mr. Mitchell?

[51:09] >> It was.

[51:10] >> Do you know by whom?

[51:11] >> Yeah, Ryan McBride provided that

[51:13] admonition to him.

[51:14] >> And you stated that Mr. Mitchell then

[51:16] went into a separate room for about an

[51:18] hour and wrote his statement down.

[51:20] >> Correct.

[51:21] >> Did anyone, including prosecutors or law

[51:23] enforcement, direct him what to say?

[51:25] >> Foundation. Objection.

[51:28] >> Personal knowledge.

[51:29] >> Would you like to respond, Miss Hunt?

[51:31] Um, I can I can lay a little more

[51:33] foundation.

[51:34] >> All right. So, I'll sustain the

[51:35] objection for now and she's Miss Hunt is

[51:37] moving forward with laying more

[51:39] foundation.

[51:40] >> You discussed with agent Chris Terry

[51:42] about how this statement was obtained.

[51:44] >> Yes.

[51:45] >> Uh, did he mention anything to you about

[51:46] anyone directing Mr. Mitchell about what

[51:48] to say or what to include in the form?

[51:51] >> No. I spoke to him personally and review

[51:52] his report. Also,

[51:57] >> I'm going to show you

[52:00] uh what's been marked for identification

[52:02] as states exhibit 14.1.

[52:06] Let me know when you see that on your

[52:07] screen.

[52:12] >> Okay, I see it.

[52:14] >> What is that?

[52:16] >> Uh this is the written 112 statement

[52:19] that uh was provided by Mr. Mike

[52:21] Mitchell. Your honor, may I have a

[52:23] minute with Miss Hunt? The same purpose.

[52:31] >> All right.

[52:33] >> And how do you know that?

[52:34] >> I've I reviewed it. Um I reviewed it in

[52:37] its original as soon as it came to us.

[52:39] I've I've seen it prior.

[52:41] And uh Kimberly, if I can have you

[52:43] slowly scroll down.

[53:22] Sorry, judge. If I can just have a

[53:23] moment.

[53:24] >> You may.

[54:05] I apologize, your honor. I I misspoke.

[54:08] It's not 14.1. It's just

[54:11] uh exhibit 14.

[54:13] >> Okay.

[54:13] >> So, if we can place that again on the

[54:15] screen for the witness only.

[54:20] Yes.

[54:23] >> And sorry, we had been scrolling through

[54:24] that. Do you do you recognize that?

[54:26] >> I do.

[54:27] >> Um, does it

[54:31] depict Is it fair and accurate um from

[54:34] what you remember?

[54:35] >> Yeah, with the exception of the

[54:36] redactions. Yes, it's it's fair and

[54:38] accurate.

[54:39] >> And judge, I'll make a record. Um,

[54:42] defense council and I have stipulated on

[54:45] the redactions that are present. Um, I

[54:47] would move for its admission uh states

[54:50] exhibit 14 into evidence, but we do not

[54:54] wish to publish it either to the

[54:56] courtroom gallery or the or the cameras.

[55:00] >> All right. Could I have a copy of it?

[55:01] What what I have is is the unredacted

[55:04] version. Uh, so I want to review it

[55:07] before I I

[55:09] make that decision.

[55:32] if I may approach.

[55:33] >> You may.

[55:35] >> Thank you.

[57:01] Right. I've had a chance to review

[57:02] states exhibit 14 and

[57:06] noting the standing objections by

[57:09] defense uh

[57:12] concerning 11:02 uh the court

[57:16] accepts into evidence states exhibit 14

[57:18] and pursuant to the parties uh is not

[57:21] published.

[57:23] >> Thank you judge.

[57:26] All right, I want to move on to another

[57:28] topic. You've stated that you've been

[57:30] present for the duration as the case

[57:32] agent um of the preliminary hearing. Is

[57:34] that right?

[57:35] >> Yes.

[57:36] >> We heard testimony yesterday about

[57:40] uh turning to the the scene at UVU um on

[57:44] September 10th that a bullet was found

[57:48] on a roof. Do you remember that

[57:50] testimony?

[57:51] >> I do. Um, do you have knowledge about

[57:53] what that about that bullet? What that

[57:56] is about?

[57:56] >> Yes, I do.

[58:01] >> What roof was that bullet found on?

[58:04] >> I believe it was the Well, it was found

[58:06] on the computer science building on the

[58:08] roof um on the far east side of the of

[58:12] the roof of the building itself.

[58:14] >> How do you know that it was found there?

[58:16] Uh, I reviewed the agent's report that

[58:19] that found that, documented it, and

[58:21] collected it.

[58:23] >> What agent was that?

[58:25] >> It was agent Ben Schneider with SBI.

[58:29] >> Are you aware of where of where the

[58:30] computer science building is on campus?

[58:32] >> Yes. Yes.

[58:34] >> Can you explain generally where that is

[58:37] located?

[58:37] >> Yeah. From where the Loi building is,

[58:39] it's a building directly kind of south

[58:41] and east of there

[58:44] from the Losi. southeast from the Losi

[58:46] building. Where is it in connection to

[58:48] the uh auditorium section that we've

[58:51] been talking about where Mr. Kirk was

[58:53] stationed?

[58:54] >> Uh it's east of there.

[58:56] >> East and a little bit east and a little

[58:58] bit south and mostly east.

[59:02] >> Would there have been from that roof of

[59:03] the computer science building to your

[59:05] knowledge would there be have been a

[59:07] line of sight to Mr. Kirk's tent?

[59:09] >> No. Not according to the agent uh agent

[59:12] Ben Schneider. There was not a line of

[59:13] sight from there to where the tent was

[59:17] um where Mr. Kirk was.

[59:20] >> Did you learn from Agent Snider what

[59:22] caliber that bullet was?

[59:24] >> Yes, I did.

[59:24] >> And what was that?

[59:26] >> It was a 223 caliber.

[59:29] >> What is a live round?

[59:31] >> It's a It's a round that had not been

[59:32] fired. Um so it still had the projectile

[59:35] and was a fully functional uh bullet

[59:38] with you know ammunition with the

[59:40] bullet. Did you learn if this 223 bullet

[59:44] found on top of the computer science

[59:45] building was a live round?

[59:47] >> Yes.

[59:48] >> And how do you know that?

[59:49] >> Uh was it was still intact. Still had

[59:51] the um the primer had not been uh was it

[59:56] was not dented up when fired. It still

[59:58] had the the bullet projectile on the

[00:00] end. Still sealed.

[00:02] >> Did you observe this bullet personally

[00:03] or is this information you're getting

[00:05] from Agent Snider?

[00:06] >> From Agent Ben Schneider.

[00:13] All right, turning to a different topic

[00:15] and judge, I'm aware that there are

[00:17] going to be some objections um about

[00:19] this that we'll have to address, but I

[00:21] just want to lay a little bit of

[00:22] foundation first before we get there.

[00:25] Are you

[00:26] you've mentioned him already. Um are you

[00:28] familiar with an individual named Lance

[00:31] Twigs?

[00:31] >> Yes, I am.

[00:34] And who is he in in regards to this

[00:37] investigation?

[00:39] >> He's the roommate of Tyler Robinson.

[00:43] >> Was he interviewed as part of this

[00:45] investigation?

[00:45] >> He was.

[00:46] >> How many times?

[00:48] >> Two times.

[00:49] >> When was the first time?

[00:50] >> The first time was the early morning

[00:53] hours of September 12th, and that

[00:55] occurred at St. George Police

[00:56] Department.

[00:58] So, we've heard of several people uh

[01:00] coming in

[01:02] and being spoken with at Washington

[01:04] County Sheriff's Office.

[01:06] >> Correct.

[01:07] >> Mr. Twigs

[01:09] was spoken with at St. George PD.

[01:12] >> Correct.

[01:14] >> Do you know who was present for that

[01:15] interview?

[01:16] >> It was FBI agents Larson

[01:19] uh and agent Ling.

[01:21] >> Are you aware of Mr. Twig's buckle swab

[01:23] was taken at that time? Uh, I don't

[01:27] recall happening there. I think I

[01:29] believe it happened later. I'd have to,

[01:31] but it did it did occur. That was

[01:34] obtained from him.

[01:35] >> Okay. But you're not sure if it happened

[01:36] on the 12th?

[01:38] >> I I don't recall if it was there later

[01:41] at his residence, but

[01:43] >> but ultimately he a buckle swab was

[01:45] obtained from Mr. Twigs.

[01:46] >> Yes, it was.

[01:48] >> Do you know if his phone was taken from

[01:51] him?

[01:51] >> Yeah, it was.

[01:53] When did that happen?

[01:55] >> So, it was during that interview with

[01:57] FBI at St. Georgia Police Department.

[01:59] They conducted an interview of him. Um,

[02:02] and then he provided his phone. He did

[02:04] it voluntarily also. Provided it um to

[02:07] to those agents

[02:08] >> and that would have been on September

[02:10] 12th, 2025.

[02:12] >> Uh, correct.

[02:13] >> You mentioned a second interview of Mr.

[02:15] Twix.

[02:16] >> Uh, there was a second interview. Yes.

[02:18] >> When did that take place?

[02:20] >> Uh, April 20th of this year. Where was

[02:23] that?

[02:24] >> Uh happened at the Utah County

[02:26] Attorney's Office.

[02:27] >> Who was present at that second

[02:28] interview?

[02:30] >> It uh was Mr. Twigs with his attorney,

[02:33] uh Joel Catrrell. It was Lauren Hunt,

[02:36] Sam Pete with uh the US Attorney's

[02:39] Office, Ryan McBride, Sergeant El

[02:42] Scholes, well now it's Lieutenant

[02:44] ElshoS, and myself.

[02:47] >> We've talked about two interviews of Mr.

[02:49] Twigs. one on the morning of September

[02:52] 12th, 2025, second on April 20th, 2026.

[02:57] Are you aware if both of those

[02:58] interviews were recorded?

[03:00] >> They were.

[03:03] >> Have you reviewed those recordings?

[03:05] >> I have.

[03:08] >> Before Mr. Twig's interview on April

[03:10] 20th, 2026.

[03:12] Well, first let me ask you this. Are you

[03:14] aware of what use immunity means?

[03:16] >> Uh, yes.

[03:17] >> What does it mean?

[03:19] It's it's a letter of the use of

[03:22] immunity is essentially giving the

[03:25] individual

[03:26] uh during the limited time of of their

[03:29] statement they're given uh that immunity

[03:31] from statements that are made in regard

[03:34] to an incident. Um but it does not

[03:37] preclude them from prosecution um from

[03:40] evidence that would be known or found

[03:42] then or later outside of that interview.

[03:44] It just gives them that limited immunity

[03:47] during the type of during the type of

[03:48] the interview.

[03:49] >> Okay. So, for any statements made during

[03:51] the interview, they're given immunity

[03:53] for that, but they're not generally

[03:56] prohibited from being uh potentially

[03:58] prosecuted outside of that interview. Is

[04:00] that fair?

[04:00] >> That's my understanding. Yes.

[04:04] >> Was Mr. Twigs given use immunity?

[04:07] >> Yes, he was.

[04:08] >> By what offices? the Utah County

[04:10] Attorney's Office as well as the United

[04:12] States Attorney's Office.

[04:15] >> You mentioned that both of Mr. Twig's

[04:18] interviews were recorded. Have you

[04:21] reviewed those recordings?

[04:22] >> Yes, I have.

[04:23] >> Do they fairly and accurately depict

[04:25] those interviews?

[04:26] >> Yes, they do.

[04:32] >> We've talked about 1102

[04:35] statements. We've talked about a form

[04:36] and you you talked about that there's an

[04:38] admonition on there that that warns that

[04:40] if false statements are given pursuant

[04:42] to 1102 then that person may be subject

[04:45] to a class A misdemeanor. Is that fair?

[04:48] >> Yes, that's correct.

[04:49] >> Was a similar admonition given to Mr.

[04:53] Twigs

[04:55] during his second or before his second

[04:57] interview on April 20th, 2026?

[05:00] >> Yes, it was.

[05:02] >> By whom? by Ryan McBride with the Utah

[05:05] County Attorney's Office.

[05:07] >> And again, you were present for that

[05:08] interview?

[05:08] >> I was.

[05:10] >> Did Mr. Twigs say that he understood

[05:11] that admonition?

[05:13] >> He did. Yep. Yes.

[05:15] >> Was he told that

[05:17] the April 20th, 2026 interview was being

[05:21] taken in lie of him having to come and

[05:24] testify at the preliminary hearing?

[05:26] >> Yes, it was. Yes, he was.

[05:29] >> All right, judge. I'm aware that Defense

[05:32] Council has objections to this recorded

[05:36] 1102. I think now um is probably a good

[05:41] time to address them.

[05:44] Uh but I do have I guess

[05:49] I understand that they are

[05:52] suggesting

[05:54] redactions to the video. I have some

[05:57] procedural objections first and if your

[06:01] honor sustains those, I think it may

[06:04] make the substance of the statements or

[06:06] or the objections or the reductions that

[06:09] defense is proposing moot. Uh so I'm I'm

[06:12] wondering if your honor will entertain

[06:14] my responses uh procedurally first

[06:17] before we get into the substance of what

[06:19] defense is objecting to. Does that make

[06:21] sense?

[06:21] >> Yes. But and if you want to move it

[06:24] because right now nothing's before me.

[06:26] >> Yes. Um

[06:29] well what I want to move so defense is

[06:34] proposed about a day and a half ago.

[06:36] They created a transcript. Um Mr. Novc

[06:40] has uh profered this earlier to your

[06:44] honor. On April and and I'll give you a

[06:48] little more proper on April 28th, 2026,

[06:52] the Utah County Attorney's Office

[06:53] provided this recorded 112 statement of

[06:57] Mr. Twigs to defense council. Uh they

[06:59] have acknowledged the receipt and

[07:01] mentioned the recorded statement at

[07:03] previous hearings. In fact, they even

[07:04] filed a brief um that your honor has

[07:07] decided about whether 11:02 can be

[07:10] applicable to Mr. Twigs at this at this

[07:12] hearing, which your honor has ruled

[07:14] upon.

[07:15] Monday at about 400 p.m., defense

[07:18] council sent us a transcript that was

[07:20] prepared by defense, the defense team,

[07:24] and it had significant redactions that

[07:26] they were suggesting. Um it was about a

[07:29] 21page transcript and their suggested

[07:33] redactions are approximately 11 pages of

[07:36] it. In total, redactions appear on 16 of

[07:40] the 21 pages.

[07:42] Um my procedural objections to this are

[07:45] that this is

[07:49] essentially by surprise. Uh we were

[07:51] already a day uh into the preliminary

[07:53] hearing. Um, defense council had been

[07:56] aware since at least April 28th, 2026

[07:59] when the recorded 1102 of Mr. Twigs was

[08:01] provided to them that that is how we

[08:03] intended to proceed. And like I said,

[08:05] they had already briefed the 11:02 issue

[08:08] as it relates to Mr. Twigs. At that

[08:10] time, they did not raise any uh

[08:13] objections to the substance of it or

[08:15] propose any redactions that they wished.

[08:18] Um and and yeah, frankly, it's it's by

[08:22] surprise and it's at this point

[08:24] disrupting the hearing. It's not I I did

[08:28] mention that defense prepared a

[08:29] transcript of this recorded interview.

[08:33] How the state intended to present it and

[08:35] how we have given it in discovery to

[08:38] defense is it's a video um audio and and

[08:42] visual. making redactions to that is not

[08:46] as simple as a transcript where you can

[08:48] just, you know, block out sections of

[08:51] the text. Um, so it's far more

[08:55] complicated than that to to edit or

[08:58] redact portions of the the video at this

[09:01] time. So, we would red uh object

[09:04] procedurally

[09:05] uh basically on on the the timeliness of

[09:07] it. Um that they had an opportunity to

[09:11] make these objections if if they had

[09:13] them at the time when the 11:02 issue in

[09:17] regards to lance twigs was was briefed

[09:19] and decided by your honor. They did not

[09:22] do that or raise the issue at this time.

[09:25] Um and so we would object just

[09:29] procedurally

[09:31] on on those grounds.

[09:35] Additionally, um the remedy requested,

[09:37] which I'm I'm assuming is that we make

[09:40] redactions to the video or present it as

[09:43] a transcript rather than a video, is

[09:46] disproportionate. Um even assuming if

[09:49] there are isolated statements that the

[09:51] court would not ultimately consider,

[09:53] again, as Mr. McBride pointed out and as

[09:55] your honor has has stated throughout

[09:56] this hearing, this is a preliminary

[09:58] hearing to the court. It's not to the

[10:00] jury. Uh the court is fully capable of

[10:02] disregarding any statement it determines

[10:04] exceeds the proper scope. Um as Mr.

[10:07] bride cited this this morning several

[10:09] cases gave your honor that that

[10:11] authority and and presumption that

[10:13] judges are able to um basically make the

[10:16] difference between uh what's what's

[10:19] admissible evidence and and disregard

[10:21] what may not be at a preliminary hearing

[10:23] or or even at a bench trial. State v.

[10:26] Adams is one of those cases. If your

[10:28] honor wants the citation again, I'm

[10:30] happy to give it. Um state v Featherson

[10:34] is another one. That one is 781 P2D424.

[10:39] State v Hanigan is another one 2014 UT

[10:43] app 165

[10:45] and State v Rose Cray 2024 UT app 128.

[10:52] And those cases all stand for the notion

[10:54] that essentially judges and this is to

[10:56] quote from Rose Crayons, judges are not

[10:59] subject to many of the same concerns

[11:00] about prejudices and improper influences

[11:03] as jurors. And so again, procedurally,

[11:07] the remedy asking us to now in the

[11:09] middle of a a week-long preliminary

[11:12] hearing of which everyone was aware,

[11:16] edit or or alter or redact portions of

[11:20] this video recording 11:02, that remedy

[11:23] is disproportionate. Um, if there are

[11:25] any potentially objectionable statements

[11:28] within that, your honor has the ability

[11:31] to to disregard those. Um, and so we

[11:35] would prefer not to get into the

[11:37] substance and and argue each statement

[11:40] line by line. Um, and and we would

[11:42] prefer to just move for its admission

[11:45] and have the court use its its

[11:47] discretion as a judge to take what's

[11:50] proper versus improper, disregard

[11:52] anything it might the the court might

[11:54] find improper.

[11:56] If we would like to move into

[11:58] substantive objections,

[12:00] uh, then I we're happy to. But um if the

[12:04] court can rule on those procedural

[12:06] objections first, it may make any

[12:09] substantive objections moot.

[12:11] >> All right. So you're moving into

[12:12] evidence states exhibit 16.

[12:16] >> Yes.

[12:17] >> And as it relates to publication, what

[12:19] is your request?

[12:21] So, judge, we believe

[12:24] and and I believe this has been

[12:26] discussed uh before on the record that

[12:30] the state is in agreement that the media

[12:32] should not have the ability to uh handle

[12:35] or replicate

[12:37] uh certain exhibits because it's video.

[12:40] Mr. Twigs is shown certain exhibits. So,

[12:43] we would agree that this should not be

[12:45] captured by cameras and and projected uh

[12:49] by the media outside of the courtroom.

[12:52] Uh but we would like at least the audio

[12:54] and and maybe even the video within the

[12:56] the courtroom itself to be captured is

[12:59] the state's position.

[13:01] >> Right. I want to make sure I understand.

[13:02] So your request is that the video not be

[13:06] projected and captured by the video

[13:09] camera, but the video and audio is

[13:12] played in the courtroom and the audio is

[13:16] able to be transmitted

[13:18] just not the video via the camera. Is

[13:20] that my understanding?

[13:21] >> Correct. That's the state's position.

[13:23] >> All right. And

[13:27] in regards to this exhibit

[13:30] is in the as states exhibit 16.

[13:36] Is there any portion of that recorded

[13:38] statement that occurred before

[13:41] the um

[13:47] the 1102 warning

[13:50] was given to Mr. Twix. not that we are

[13:54] presenting today.

[13:55] >> Okay. All right. Turning to the defense,

[13:58] Mr. Novak.

[13:59] >> Thank you.

[14:01] >> Thank you, M.

[14:04] >> So, I'm going to address first, your

[14:05] honor, the what Miss Hunt describes as

[14:07] the procedural issues um with our

[14:10] proposed redactions.

[14:13] Um

[14:17] many many weeks ago

[14:20] the state lodged their anticipated

[14:24] exhibits with the court

[14:27] and then the court said I'm not going to

[14:30] review them. In fact, I'm returning

[14:32] them.

[14:34] I'm sorry. The court said that the court

[14:36] is returning the exhibits to the state.

[14:40] So

[14:42] um there is no moment

[14:46] to make objections to an exhibit which

[14:49] the court is not uh inclined

[14:53] to

[14:56] entertain until the moment as the court

[14:58] has said many times until the exhibit is

[15:03] presented.

[15:04] And so what we have done is we have

[15:06] given the state it's only a 20page trans

[15:10] excuse me it's only a 20page transcript.

[15:15] We have given the state a transcript we

[15:18] prepared

[15:22] ahead of time so that the state could

[15:26] make sure that the transcript is

[15:27] accurate. The state has never said that

[15:30] the transcript is inaccurate. So, I'm

[15:32] going to assume for purposes of the

[15:34] moment that the state doesn't have any

[15:36] dispute that the transcript is an

[15:39] accurate transcription of Mr. Twig's

[15:43] recorded 11:02 interview.

[15:45] There's no surprise here.

[15:48] There's been

[15:51] all of Monday evening, all of Tuesday,

[15:53] this morning. Um, in fact, the state

[15:56] informed me

[15:58] yesterday morning that they don't agree

[16:00] to the redactions. So, there's no

[16:02] surprise here. And we're actually doing

[16:04] exactly what the court signaled should

[16:07] be done, which is at the time an exhibit

[16:09] is profered, objections shall be made.

[16:16] This wouldn't be as much of a problem

[16:20] if Ms. Hunt had just said to your honor,

[16:24] um, following Archeletta

[16:27] and in light of the electronic coverage

[16:29] of this proceeding and in light of Mr.

[16:31] Robinson's right to a fair trial, the

[16:34] court will consider

[16:38] those portions of the exhibit which are

[16:40] admissible and the court will not

[16:42] consider those portions which it

[16:44] determines are not admissible, but it

[16:46] will not be broadcast either audio or

[16:49] video.

[16:50] So that becomes a problem because

[16:56] the

[16:59] categories of objections that we have to

[17:04] this video recording

[17:07] I'm going to talk about a little bit so

[17:08] that the court understands why Ms.

[17:10] Hunt's suggestion

[17:13] that the entirety of an exhibit, which

[17:15] may not be admissible under the rules of

[17:17] evidence at a preliminary hearing, be

[17:19] played in open court and that the audio

[17:21] be captured by um electronic media and

[17:24] broadcast

[17:26] because of our client's right to a fair

[17:28] trial. That's a problem.

[17:30] And I don't want to sound flippant, but

[17:34] this is actually the Ryan McBride 1102.

[17:38] The vast majority of this video is Mr.

[17:41] McBride testifying and Mr. Twigs

[17:46] agreeing.

[17:48] If we were in a courtroom, it would be

[17:51] a leading examination virtually from

[17:54] start to finish. I don't want to say

[17:56] that every single

[17:59] statement by Mr. Pri, Mr. Twigs is just

[18:02] an affirmation of what Mr. McBride says,

[18:04] but the vast majority of it is.

[18:08] There are also portions of this 11:02

[18:11] where Mr. McBride is basically

[18:14] testifying as to what other exhibits

[18:17] that this court will see say.

[18:20] So, there are two other exhibits that

[18:22] this court will be asked to receive into

[18:25] evidence today, which are um text

[18:27] messages and

[18:30] uh group chat. I'm just going to

[18:31] distinguish between the two.

[18:33] Um, and so this 11:02 statement is

[18:36] basically Mr. McBride saying, "And then

[18:39] the chat says this, and then the chat

[18:40] says that, and then the chat says this."

[18:42] He's basically testifying as to what the

[18:44] exhibits say. So, in some ways, the

[18:47] 11:02,

[18:48] those portions of the 11:02 violate the

[18:51] best evidence rule because I have no

[18:53] doubt that those two things that I just

[18:57] talked about are going to be presented

[18:59] to the court by the state.

[19:03] Um,

[19:07] there are also portions of this 1102

[19:12] which are not relevant

[19:16] and

[19:18] really implicate Mr. Twigs's privacy

[19:20] rights. And I am not Mr. Twig's council.

[19:22] As Miss Hunt said, he has counsel. I

[19:25] don't know if he's

[19:28] um well I don't want to speculate

[19:32] but it's not relevant. There are

[19:34] portions of it which are not relevant

[19:35] and there are portions of it which I

[19:37] think especially to be broadcast

[19:40] um implicate other other privacy

[19:42] interests. So,

[19:47] I'm not trying to create complications

[19:49] and I'm definitely not trying to take

[19:51] the state by surprise because

[19:54] I went to great lengths to provide the

[19:56] state with a transcript with a proposed

[19:58] redacted transcript. And in fact, today

[20:02] we prepared to make it easier on the

[20:04] state and actually on your honor. Um,

[20:07] instead of having redactions with big

[20:08] black sections, we we highlighted them

[20:11] instead. So if the court wants to look

[20:13] at our proposed

[20:15] um redactions, the court can do that

[20:17] without having to compare two documents.

[20:19] The other thing I want to say is that

[20:23] if the court did order ultimately that

[20:26] portions of it would be broadcast in any

[20:30] way in the courtroom, outside the

[20:32] courtroom,

[20:33] um we're not trying to change the

[20:36] state's exhibit from a video with audio

[20:38] to a transcript. The transcript is

[20:41] really being used as a tool to address

[20:46] the inadmissible portions of the video

[20:50] because there's no way to communicate to

[20:52] the court efficiently which portions of

[20:55] a of a video we think are not

[20:57] admissible. It's much easier to do it on

[20:59] paper. So, the transcript is just a

[21:00] tool. Um, we have the ability right here

[21:04] in this courthouse to cut the video into

[21:10] the pieces that the court deems

[21:11] admissible. Mr. Ellis tells me it would

[21:12] probably take a couple hours at the

[21:14] most. So maybe the maybe that's not also

[21:18] not a concern. There's no delay

[21:21] associated with this in light of the

[21:23] fact that it's Wednesday and this court

[21:25] is going to conclude this hearing by

[21:26] Friday afternoon. So, I've gone beyond

[21:31] the procedural issues. I've addressed

[21:33] that we think portions of it are not

[21:34] admissible. There's no surprise. We've

[21:37] followed exactly what the court has

[21:39] signaled, which is I don't want to hear

[21:41] about exhibits until we're in the middle

[21:42] of the hearing, and I don't want to hear

[21:44] objections about it till we're in the

[21:45] middle of the hearing. The the

[21:47] litigation over whether section 1102 is

[21:51] constitutional under Mr.

[21:54] um Robinson's federal due process rights

[21:57] and the other rights that were

[21:58] addressed. That litigation does not mean

[22:01] that we should have brought to the court

[22:03] proposed redactions to an exhibit in a

[22:05] hearing which hasn't started yet

[22:08] in a hearing in which the state had

[22:10] until 20 minutes ago even profered an

[22:13] exhibit. So I understand that the state

[22:16] wants to avoid the substance by trying

[22:19] to short circuit this with a procedural

[22:21] argument. Um, and Miss Hunt is is a is a

[22:25] is a very excellent advoc advocate for

[22:27] her client. But the reason why the state

[22:29] is going to the procedural issue is

[22:31] because the state well because the

[22:35] exhibit contains

[22:38] significant content that is not

[22:39] admissible even in a preliminary

[22:41] hearing. So, I'm going to stop now, but

[22:44] I do want to go back and say that if the

[22:46] court concluded that only your honor was

[22:49] going to review this exhibit and the

[22:52] Archeletta rule would be extended to

[22:54] this exhibit, including that it's not

[22:58] going to be broadcast,

[23:01] then I think that we have a different

[23:04] path toward the efficient resolution of

[23:06] this issue.

[23:08] >> All right.

[23:08] >> Does that make sense, your honor? I

[23:10] believe I understand what you're saying.

[23:11] So, let me respond to you before I go to

[23:13] Miss Hunt. So, going to your first point

[23:15] in regards to what this court's position

[23:18] and not looking at the exhibits that

[23:20] doesn't preclude any party from filing a

[23:21] motion in lemonade, which is anticipated

[23:24] before any moved into evidence.

[23:27] Typically, motions and lemon are used by

[23:30] either side on anticipated exhibits or

[23:34] that may come into court and and that

[23:36] allows prelitigation. So, I I want to

[23:39] clarify that the court statement, look,

[23:40] I'm I'm not looking at the exhibits is

[23:42] far different than what the parties

[23:44] choose to do and file in regards to a

[23:46] motion in lemonade. Um, but going to the

[23:49] I I I really want to go to what you've

[23:52] talked about, what specific objections

[23:55] are you making? I I want make to make

[23:56] sure the the rule the the request is

[23:59] clear so I can rule specifically on

[24:01] that. What exactly? I I I I think I

[24:04] understand some of them, but I I wish

[24:06] for you to articulate what are your

[24:08] objections to states exhibit 16

[24:10] >> significant. We could do it line. We

[24:12] could do it line by line or page by

[24:14] page. I know we have had hearings in

[24:16] this matter where the court has wanted

[24:18] to look at transcripts line by line,

[24:20] word by word. We're prepared to do that.

[24:23] But I'm going to give the court

[24:25] categories.

[24:26] >> Thank you.

[24:27] without referring to specific portions

[24:29] spec there are many portions of it which

[24:32] are not the statement of Mr. Twigs there

[24:36] Mr. McBride testifying

[24:42] on video as to what other exhibits say

[24:46] and Mr. took is saying, "Yeah, that's

[24:48] what it says." Yeah, that's what it

[24:49] says. Yeah, that's what it says.

[24:51] >> I apologize. I don't mean to interrupt

[24:53] you. I just want to

[24:54] >> categorize it and put it in a box. So,

[24:56] what is the ex what what um objection

[24:59] under the rules of evidence is that

[25:01] specifically? What what what are you

[25:03] boxing that as?

[25:04] >> Well, first of all, it's council

[25:05] testifying. Second of all, it's hearsay.

[25:08] It's Mr. McBride's outofc court

[25:11] statements as to what an exhibit says.

[25:14] There's a best evidence rule which I I'm

[25:17] sure the court is familiar with which is

[25:19] that the best evidence of what an

[25:20] exhibit says is the exhibit.

[25:24] So we may have a little bit of a cart

[25:26] before the horse here.

[25:27] >> Sure.

[25:27] >> Because there are two exhibits that I'm

[25:29] very confident are coming.

[25:31] Um

[25:34] there are portions which are not

[25:35] relevant.

[25:39] There are portions which

[25:42] um I believe are inadmissible when the

[25:45] court balances

[25:48] under 403 the probitative value versus

[25:51] the the prejuditial value especially in

[25:54] light of

[25:56] the um manner in which this hearing is

[25:59] being

[26:01] um broadcast.

[26:05] So, we have improper testimony by

[26:08] councel. We have the best evidence rule

[26:11] reissues. And so, but what I'm saying is

[26:13] that those are all things that this

[26:14] court can manage as Miss Hunt and Mr.

[26:18] bride have taught us today in terms of

[26:21] the court's um preliminary assessments,

[26:25] the court's role as a magistrate and the

[26:28] Archeletta rules that allow this court

[26:30] to decide certain exhibits will not be

[26:35] viewed

[26:36] or heard by the public because it

[26:39] interferes with Mr. Robinson's right to

[26:41] a fair trial.

[26:42] >> Okay.

[26:44] >> Thank you. And I do I do I heard exactly

[26:46] what the court said about the unlimited

[26:48] situation. But I I do want to just say

[26:50] this and I hope this is taken in the

[26:52] right spirit. If this court had said to

[26:54] us, I'm returning the exhibits, but if

[26:57] any party has any objections to any

[26:59] exhibits, I want to hear about that

[27:01] before the hearing. We certainly would

[27:03] have done so. And I think that

[27:07] um it's probably

[27:10] for council

[27:13] um a suggestion about how future

[27:16] hearings where there are many or complex

[27:21] exhibits because there will be such

[27:23] hearings should be handled which is we

[27:25] can do in limones before the hearing

[27:28] begins so that the court knows these

[27:30] exhibits there are no disputes these

[27:32] exhibits there are disputes these These

[27:34] are the disputes and we don't have to

[27:36] waste um courtroom time

[27:41] uh bringing the court up to speed on

[27:42] what those concerns are. It can all be

[27:44] briefed ahead of time and we're happy to

[27:46] do that.

[27:47] >> Thank you. Well, going to the last

[27:49] point, let me be clear on the record

[27:51] that I I don't intend to interfere with

[27:54] the duties of either party. Is not my

[27:57] job to say, well, here's what you should

[27:59] do, here's what you shouldn't do. I I'm

[28:02] independent. I I'm not team prosecution,

[28:05] team defense, and so I I will not

[28:08] dictate how you run your case.

[28:11] Obviously, if it it goes against certain

[28:14] rules, constitutional rights, statutes,

[28:18] case law, I will weigh in. But I I never

[28:21] want to put my finger and say, "Well,

[28:22] Mr. Novach, here's how what I think you

[28:24] should do." Or to the state, Mr.

[28:26] McBride, here's what I think you should

[28:27] do. that goes outside my role and I will

[28:30] not deviate from my role, which is not

[28:32] to interfere with the business of

[28:35] counsel and and and I'm fortunate as a a

[28:38] district court judge that I have very

[28:40] experienced attorneys who I have watched

[28:43] and have done an excellent job and

[28:46] you're experienced as I stated on on I

[28:48] believe in the uh Prohawk Viche, highly

[28:52] experienced attorneys on defense, highly

[28:55] experienced attorneys on prosecution And

[28:57] so I do not want to get into the

[28:59] business of saying here's what you

[29:00] should do. I I I I hear what you're

[29:03] saying, but I want to be clear from from

[29:05] this point on in case there's any

[29:06] ambiguity. The court does not need to go

[29:09] into the business of dictating what you

[29:12] feel is in the best interest of your

[29:13] client to the state what is in the best

[29:15] interest of your client. I I I stay

[29:18] clear of that, but I appreciate the

[29:20] point you're making and I hope that

[29:21] clarifies any ambiguity that may exist.

[29:23] >> I there was no ambiguity. I don't think

[29:25] that what I um was conceptualizing puts

[29:30] the court's finger on on anybody's

[29:32] scales. I think it's really about case

[29:34] management. And now I think we're moving

[29:36] pretty far away from the admissibility

[29:38] of this 1102 statement. And we could

[29:41] have a conversation later if the court

[29:43] wants to. It's up to the court about

[29:45] case management issues. But um

[29:50] as I said before, if I say anything

[29:51] else, I'm going to be repeating myself.

[29:53] So I'm just going to stop.

[29:54] >> All right. Thank you, Mr. Novak.

[29:55] Appreciate your thoughts. Uh, Miss Hunt.

[30:05] >> Yes. Thank you, Judge. And

[30:08] as I as I tried to parse out, obviously,

[30:11] we have procedural objections

[30:14] uh which may depending on how the court

[30:16] rules make the substantive objections

[30:19] moot or or unnecessary. But, um, to Mr.

[30:23] Novak's point about this not being by

[30:25] surprise. Yes, to be fair, he did send

[30:28] me a a transcript with proposed

[30:30] redactions Monday, I believe, at about

[30:32] 4:00 p.m. It was not accompanied by any

[30:36] objections that he actually had. So, we

[30:39] had to compare the transcripts and to to

[30:42] our best guess come up with what the

[30:44] substantive objections may be. I am

[30:47] ready to respond to what I believe they

[30:50] may be and obviously he's now given

[30:52] categories. Uh but I think we're now at

[30:54] the point where the court needs to

[30:57] exercise its um ability and obligation

[31:00] under rule 104A to decide a preliminary

[31:03] question about whether evidence is

[31:05] admissible. Uh but before we do that,

[31:07] because to argue the substantive

[31:10] objections,

[31:11] I I want to actually get into the

[31:13] substance of it. And so I think we need

[31:15] to consider whether this is going to be

[31:16] a closed hearing. Um, and then probably

[31:19] I don't know, I'm assuming the media

[31:21] attorneys will want to weigh into that

[31:23] because I do want to quote specific

[31:25] sections to be able to advocate uh for

[31:28] my position, the state's position on

[31:30] this. I think we will need to get into

[31:31] the meat of what is actually stated

[31:33] here. Um, and so I think the court needs

[31:35] to decide if this is going to be an open

[31:38] or a closed hearing and hear from the

[31:41] the media or any other parties that need

[31:43] to weigh in on that.

[31:44] >> All right.

[31:46] Anything further from the parties as it

[31:48] relates to that?

[31:54] >> Only that Miss Hunt invited the media to

[31:56] comment on what the court is going to

[31:58] do. And

[32:01] as this as your honor knows from

[32:02] conducting jury trials and other types

[32:06] of proceedings,

[32:08] sidebars are not for the public. They're

[32:10] not for the public in real time and

[32:13] they're not for the public subsequently.

[32:15] It is very standard that sidebar

[32:19] proceedings where

[32:22] information is only to be exchanged

[32:24] between council for the parties and the

[32:26] court are conducted at sidebar. so that

[32:29] witnesses, jurors, members of the public

[32:32] don't hear about those things. And so we

[32:34] are assuming that if the court wants to

[32:38] do this in what we would call sidebar or

[32:41] in a closed hearing that the transcript

[32:42] of that is going to remain at least

[32:44] temporarily sealed until these

[32:47] proceedings conclude or the court

[32:49] conducts some uh closer analysis on a on

[32:52] a topic by topic basis. So, um,

[32:59] that's what sidebars are about. Whether

[33:00] it's done in a closed hearing or in an

[33:03] open hearing through whisper,

[33:05] um,

[33:07] the public, potential witnesses, jurors,

[33:11] potential jurors don't get to hear what

[33:13] the court decides needs to be um,

[33:16] addressed

[33:18] um, in a manner which protects the

[33:20] party's rights.

[33:22] >> All right.

[33:29] Your honor, if I may, Michael Jud, on

[33:31] behalf of the media, um,

[33:36] a request to close a court proceeding

[33:37] isn't a sidebar, and calling it a

[33:39] sidebar doesn't make it one. Um, the

[33:41] court knows the rules at this point. Any

[33:43] attempt to close a hearing requires that

[33:45] the court engage in some sort of hearing

[33:48] about that closure that is open to the

[33:49] public. It can't be done in whisper.

[33:51] that can't be done um with the cameras

[33:53] off. There are occasions where a court

[33:55] may find it necessary to to put some

[33:58] portion of some hearing um behind closed

[34:01] doors, but the conversation about

[34:03] whether or not that happens, of course,

[34:04] has to take part place in public. Um I

[34:08] don't want to belabor any of the points

[34:09] that are made. I think the court

[34:10] recognizes the interests at issue here

[34:13] and what the media's position would

[34:15] likely be on these.

[34:18] I'd like to find common ground. It

[34:21] appears to be a significant piece of

[34:24] common ground here is that everybody

[34:25] seems to believe that the video

[34:28] interview that it's that issue here is

[34:30] very important

[34:32] and that of course makes people want to

[34:35] uh invoke protections, invoke closures

[34:38] from the media's perspective, from the

[34:39] public's perspective. Of course, that

[34:41] pushes the other direction. There may be

[34:44] moments of this preliminary hearing.

[34:46] There may be exhibits that do not

[34:50] present significant pillars of support

[34:53] for the decision that the court will

[34:55] ultimately be called on to make as a

[34:56] gatekeeper and as a magistrate. It seems

[34:58] to me I I haven't seen this video. The

[35:01] public hasn't seen this video. It seems

[35:03] to me that this appears likely to be one

[35:06] of those pillars on which the state

[35:08] intends to base its case and on which

[35:10] the court's ultimate decision will

[35:12] likely rest. That council's in favor of

[35:14] access, in favor of publication, in

[35:16] favor of allowing the public to see the

[35:19] work that the court is doing and why

[35:20] it's doing it. I recognize Archeletta

[35:23] has been invoked. We respect and

[35:24] understand Archeletta respectfully.

[35:26] Archeletta, at least part of its

[35:28] reasoning, is based on something very

[35:29] different than putting something on a

[35:31] screen. In Archealetta, there was a

[35:32] request to say, "Hey, is there a murder

[35:34] weapon? Are there crime scene photos?

[35:36] Can we come handle those?" Right? Can we

[35:38] can we look at them? Can we turn them

[35:40] over in our hands? And part of the

[35:41] reason in Archeletta was we're worried

[35:43] about that will impact the the quality

[35:45] of the evidence and the obligation

[35:46] everybody has to keep that evidence

[35:47] reliable and safe. Putting something on

[35:49] the screen doesn't present any of those

[35:50] sorts of risks. Um because this is so

[35:54] important. So this interview appears to

[35:57] be such a critical piece of the case

[35:58] being presented here in this courtroom

[36:00] today. Um the media's position is that

[36:03] the it should be shown on the screen and

[36:05] that the public should be allowed to see

[36:06] it as well. To the extent there's any

[36:08] sort of compromise at all. the one that

[36:10] is presented by the state which would

[36:12] allow the public to monitor and oversee

[36:14] and understand and comprehend and assist

[36:16] with the work being done by the court.

[36:18] Then something like the state has

[36:20] provided which is we would put it we

[36:22] allow the audio to play. If there is

[36:24] some sort of it sounds to me like what

[36:26] the state is saying is there's some sort

[36:27] of witness privacy issue that would be

[36:28] served by turning that video off. um

[36:31] maximalist advocates on behalf of the

[36:33] media would always want that video to be

[36:35] on. But I recognize that that that may

[36:36] be a reasonable compromise. But the idea

[36:38] of shutting the courtroom down to argue

[36:40] about closure or keeping this uh

[36:43] recording from the people in the

[36:45] courtroom who are allowed here, the

[36:46] victim representatives, the media

[36:48] representatives, the public itself is

[36:49] simply a non-starter. I believe under

[36:51] the rules that govern this proceeding.

[36:53] We ask the court to keep this as open as

[36:55] possible and if there is any sort of

[36:58] narrowing of the public's right of

[37:00] access here that it be done only in the

[37:01] narrowest way possible um and that it be

[37:05] based only upon recognized interests and

[37:08] finally I would say your honor to the

[37:10] extent that I hear any sort of real

[37:12] counter interest at all it continues to

[37:14] be a fair trial interest take that

[37:17] important we take that we recognize that

[37:19] its importance we take it seriously the

[37:20] court has also over and over again recog

[37:22] recognize what the right approach to

[37:24] that is is to say there are mechanisms

[37:26] in place under algier to say we do an

[37:28] expanded fadier we do a jury

[37:30] questionnaire we can handle those

[37:32] counter interests and on behalf of the

[37:34] media and the public I'd ask that the

[37:35] court handle this dispute that way

[37:37] >> thank you any further comment by any of

[37:40] the parties

[37:44] >> all right Mr. Novak

[37:47] >> only um

[37:50] that I want to make an additional

[37:53] assertion about why the court should

[37:55] handle this exhibit

[37:57] um pursuant to Archeletta.

[37:59] Um

[38:01] but I want to make that um argument a

[38:03] sidebar because the whole point is to

[38:06] protect my client's right to a fair

[38:07] trial. And by making part of this

[38:09] argument in open court, I'm uh it's it's

[38:13] a self-defeating exercise. So when the

[38:15] court resolves whether it will hear from

[38:18] us at Sidebar, we're prepared to do

[38:20] that.

[38:21] >> All right. The the issue is Sidebar is

[38:24] public because the transcript's open. So

[38:27] it's just because the parties request

[38:29] sidebar

[38:30] and and and the the court invokes the

[38:33] white noise, that doesn't make it

[38:36] private. It simply obscures the noise in

[38:38] the courtroom because that goes in the

[38:40] transcript unless it's a closed hearing.

[38:42] So

[38:43] >> we would like to have a very brief

[38:45] closed hearing to lodge another

[38:46] objection about the publication of this

[38:52] of of any portion of this exhibit be

[38:55] well of certain portions of this exhibit

[38:57] beyond your honor's eyes.

[39:00] >> That's what I'm saying.

[39:02] >> Thank you.

[39:03] All right. Uh right now what we're going

[39:05] to go ahead and do and uh what I want to

[39:08] do is I want to look at uh the

[39:10] redactions that you're proposing uh and

[39:13] uh take a look at that and it's also a

[39:16] perfect time to take a break because we

[39:18] need to bring in the monitor potentially

[39:19] for future exhibits. So that's going to

[39:22] give us our 15 minutes. I want to review

[39:24] that uh so I can bring be brought up to

[39:27] speed uh because the transcript from

[39:30] what I understand is just a transcript

[39:33] with suggestions of what defense wants

[39:35] to redact. Is that correct?

[39:37] >> That's correct your honor. And so what I

[39:38] would suggest well if this works for the

[39:41] court is we will email to the court

[39:43] staff

[39:45] something we've already given the state

[39:47] which is the proposed redacted

[39:50] version of the transcript. I understand

[39:52] that the state wants a video to be

[39:56] presented as evidence. We can get there

[39:58] if the court concludes there should be

[40:00] redactions. Um, it's not redacted

[40:03] through blackout. It's highlighted. So,

[40:05] the highlights are the proposed defense

[40:08] redactions and Mr. Ellis can make sure

[40:11] that your court staff receive that and

[40:13] it can either be emailed to you or

[40:14] printed out, whatever works. Any

[40:17] objections, Miss Hunt, for the court

[40:18] reviewing the proposed redactions in

[40:21] order to bring the court up to speed at

[40:23] whatever argument the court may

[40:25] entertain?

[40:26] >> No, judge, but I I want to clarify for

[40:28] the record and for myself. Um, is the

[40:30] court ruling on my procedural objections

[40:33] and and I want to reserve the right to

[40:35] make my my substantive arguments uh

[40:38] using what's actually in in the exhibit.

[40:42] So being able to quote directly from it,

[40:44] knowing that if it's not a closed

[40:46] hearing, those portions of of what I'm

[40:48] saying are are going to be on the record

[40:50] and and and broadcast.

[40:52] >> So the court is not making a ruling

[40:53] right now. We're just going to take a

[40:54] break and then we're going to come back

[40:56] on the record. But on the break, I'm

[40:58] trying to maximize the time and that's

[40:59] why I'm asking, is there any objection

[41:00] to me reviewing what it sounds like

[41:03] defense has sent you, which is just the

[41:05] transcript highlighting what they're

[41:07] anticipating redacting? I just want to

[41:08] bring myself up to speed. So on the next

[41:11] step when I make my ruling, the court is

[41:14] ready to go.

[41:14] >> Okay.

[41:15] >> And maximizing the time because we also

[41:17] want to put up a monitor. So there's

[41:18] like three things we can accomplish in

[41:20] the space of 15.

[41:21] >> Fair enough. The state has no objection

[41:22] to that.

[41:23] >> All right. Mr. Nvak, if you wouldn't

[41:24] mind uh sending what you sent to the

[41:26] state to the court for review, and we

[41:29] will take a 15minute break. It is now

[41:32] let's go a little bit longer just I want

[41:33] to make sure everything is in place. So

[41:35] let's come back at uh 3:00

[41:38] uh and and we'll uh proceed from there.

[41:40] Court is in a brief recess.

[39:47] Court is back in session.

[39:52] Noting the presence of council and all

[39:53] parties. I appreciate your patience.

[39:56] Sometimes it takes time to save time and

[39:59] so that was the intent of this court uh

[40:02] in addressing what is before this court

[40:05] as it relates to states exhibit 16

[40:08] council. In this time I've taken time to

[40:11] look at the video and you also reviewing

[40:14] what Mr. Novak submitted uh the uh

[40:16] redactions uh requested and reviewing

[40:19] all parts of it in great detail.

[40:27] All right. I I want to address uh the

[40:30] objections before me. Uh and starting

[40:34] with Mr. Novak made a hearsay objection

[40:37] as it relates to Mr. McBride and the

[40:39] court agrees. It is hearsay. Uh at the

[40:43] same time, um

[40:46] I'm only going to consider Mr. McBride's

[40:48] statements to provide context for the

[40:51] things that Lance Twigs says and for

[40:54] their effects on Lance Twigs and as such

[40:57] the hearsay objection as it relates to

[40:59] the statements of Mr. McBride in states

[41:02] exhibit 16 is overruled.

[41:07] Turning to relevance

[41:09] uh as it relates to states exhibit 16

[41:17] and and I agree in part and disagree in

[41:20] part as it relates to this objection. So

[41:23] there are portions of the transcript or

[41:26] I say transcript but what I really mean

[41:28] is states exhibit 16 and and I

[41:30] appreciate the transcript. I found that

[41:32] to be helpful. It's a lot faster than

[41:34] trying to like scroll. And so I

[41:37] appreciate that being provided. It was

[41:38] helpful to the court. And and to be

[41:40] fair, I found it to be a true and

[41:42] accurate representation of the actual

[41:44] recording. So did did I listen to every

[41:47] word and compare it? No. But from what I

[41:49] reviewed, I did not find any

[41:50] inconsistencies. Just to put it on the

[41:52] record so there's no misunderstanding.

[41:56] Uh but there are portions of the

[41:57] transcript uh states exhibit 16

[42:01] which relevance is still not clear to

[42:04] me. Uh however

[42:07] uh as the magistrate I am able to

[42:10] distinguish between what is relevant to

[42:13] a probable cause determination and what

[42:16] is not.

[42:18] and what I take into consideration when

[42:21] I make my ultimate decision about

[42:23] probable cause. I will not take into

[42:26] consideration what is not relevant. So

[42:29] that is a constant balancing and

[42:31] evaluation I'm making throughout this

[42:34] this hearing and after this hearing my

[42:37] intent is to review everything again uh

[42:40] to be thorough. This is not a case where

[42:41] I'm going to be shooting from the hip uh

[42:44] and making that determination because

[42:45] this is an important determination. I

[42:47] will take the necessary time as as is

[42:50] required and is as necessary to ensure

[42:53] that the constitutional rights of all

[42:56] parties are upheld.

[42:58] Uh, so as I'm making determinations,

[43:02] where I land is pages 19 and 20 of the

[43:07] transcript as it relates to state

[43:10] exhibit 16 may contain irrelevant

[43:13] information,

[43:14] but I will reserve whether I consider

[43:16] those portions

[43:18] uh until I've heard the rest of the

[43:20] state's evidence.

[43:22] Therefore, as it relates to relevance,

[43:25] that ruling is reserved.

[43:30] Now turning to uh the other objection

[43:32] which is rule 403 prejudice.

[43:36] As I am acting as a magistrate, I do not

[43:38] have the same concerns that my decision

[43:40] will be influenced by undue prejudice as

[43:43] that of a jury. Therefore, for purposes

[43:47] of admissibility,

[43:49] the defendant's objection is overruled.

[43:52] Even so, there are portions of this

[43:54] transcript and again states exhibit 16

[43:57] that may not be admissible at trial and

[43:59] whose relevance I have not yet

[44:01] determined. In the abundance of caution

[44:04] and to protect the jury pool, the

[44:05] potential jury pool from hearing

[44:08] potentially inadmissible evidence, I'm

[44:10] ordering that the audio cannot be

[44:12] published in the courtroom or on camera

[44:14] from page 19, timestamp 3255

[44:19] until timestamp 3548.

[44:23] In other words, the state may publish

[44:24] the audio for all portions of the

[44:26] interview other than that one portion.

[44:30] And and when I say audio, I mean audio

[44:32] and video. Uh so both I recognize

[44:36] there's approximately only one minute

[44:38] after 3548.

[44:41] Uh the state can fast forward to that

[44:44] point for it's an approximate 1 minute

[44:47] and 12 seconds or may take the time to

[44:50] redact the video as they see fit. So

[44:53] I where I'm landing today is up until

[44:58] from the beginning

[45:06] until that page 19

[45:10] uh 3255

[45:12] that portion I am ruling is admissible

[45:16] and may be published again if the state

[45:19] wishes that last minute and 12 seconds

[45:22] uh to be played. Um they can either take

[45:26] the time tonight to redact what the

[45:28] court is not going to allow to be

[45:31] published and I wish to differentiate.

[45:33] I'm considering it all but for

[45:36] publication purposes that portion is not

[45:39] going to be permitted to be played in

[45:40] the courtroom.

[45:43] >> Would you state those times again that

[45:45] you are ordering not to be public? I've

[45:47] got 3255 to 3548.

[45:50] >> Right. Those are the two timestamps for

[45:54] that and I hope that's helpful as as

[45:56] both parties are trying to review on the

[45:57] transcript and and states exhibit 16

[46:02] >> and that's from 3255 to 3548.

[46:05] >> Right.

[46:06] >> Okay. Thank you.

[46:06] >> Is is not publishable

[46:10] in the courtroom or on uh to be

[46:13] broadcast.

[46:15] Finally, I want to recognize both

[46:16] parties wanted the benefit of the

[46:18] record. to be more specific in their

[46:21] arguments uh concerning uh their

[46:23] objections.

[46:25] So if those arguments pertain to

[46:27] timestep 3255 through time step 3548,

[46:32] I'm willing to allow you to do that in a

[46:34] closed hearing. Uh please be mindful of

[46:37] the time and keep your argument

[46:39] succinct.

[46:41] With that in mind, do the parties have

[46:43] any arguments they feel I have not

[46:45] considered in my ruling that require a

[46:48] closed hearing?

[46:55] >> Um, yes, your honor.

[46:58] And so I'm just going to tell the court

[46:59] what I think the the general nature of

[47:01] that is without getting into the details

[47:03] because I do think a closed hearing is

[47:05] appropriate.

[47:06] Um

[47:09] there are

[47:11] okay setting aside the 1102

[47:14] issue and objections. There are

[47:16] statements

[47:17] in this video by Mr. Twigs

[47:22] attributed to Mr. Robinson.

[47:25] >> Okay. Mr. Robinson said

[47:28] there are two other exhibits which I

[47:30] again I've said before I'm confident the

[47:32] state will offer which Mr. Twigs

[47:37] says in this video, those are statements

[47:40] by Mr. Robinson. Okay, I will

[47:42] acknowledge that separate and apart from

[47:44] 11:02,

[47:46] the statements of a party opponent are

[47:48] admissible if relevant. In fact, they're

[47:51] not even hearsay, right? They're

[47:52] excluded from the hearsay rule.

[47:56] But the question is whether statements

[47:59] of Mr. Robinson of the nature that I'm

[48:02] referring to

[48:03] >> Mhm.

[48:04] >> can be published

[48:07] not considered by the court but

[48:08] published

[48:10] without violating Mr. Robinson's 14th

[48:14] amendment due process rights and it is

[48:16] our view as we have said in our earlier

[48:18] papers that the answer is no

[48:23] publication

[48:26] especially on

[48:28] um in the way this proceeding is being

[48:31] published would violate Mr. Robinson's

[48:35] due process rights under the 14th

[48:37] amendment. We previously cited and the

[48:39] reason why I'm saying this again is not

[48:41] to reiterate something just because if

[48:43] you say it twice

[48:45] um it means something different but

[48:48] because my colleagues have suggested

[48:50] that maybe my argument earlier was not

[48:52] clear enough and so I wanted arguments

[48:54] of counsel.

[48:56] The United States Supreme Court said in

[48:59] ST's est versus Texas

[49:03] 381US

[49:05] 532

[49:08] the following

[49:10] in Reau versus Louisiana and that's RID

[49:13] AU.

[49:15] This court constructed a rule that the

[49:18] televising of a defendant in the act of

[49:21] confessing to a crime was inherently

[49:24] invalid under the due process clause of

[49:27] the 14th amendment even without a

[49:30] showing of prejudiced or a demonstration

[49:33] of the nexus between the televised

[49:36] confession and the trial. I am not

[49:39] calling the statements of Mr. Robinson

[49:41] confessions, but that is what the state

[49:44] will call them.

[49:49] And so there are portions of this

[49:51] exhibit and the other exhibits that I've

[49:53] referred to which implicate Mr.

[49:55] Robinson's right not to have what the

[49:58] state calls a confession

[50:01] televised.

[50:04] This court has authorized the televising

[50:07] of this proceeding.

[50:12] And there are reporters in this

[50:13] courtroom who will go outside and speak

[50:16] on what we used to call television. That

[50:18] opinion was from the 60s. Now we have

[50:21] other forms of technology, but I'm just

[50:23] going to use what the Supreme Court says

[50:25] because it's the Supreme Court. So, we

[50:27] are very concerned that the publication

[50:30] beyond this court's eyes of what the

[50:33] state will call confessions at trial

[50:38] violates Mr. Robinson's due process

[50:40] rights right here and now today. And I

[50:43] know that we said that before in the

[50:45] litigation, but now we're we're exhibit

[50:48] specific.

[50:51] If I haven't been clear about the

[50:53] argument, I want to make sure I'm clear

[50:55] about it because the court's decision to

[50:59] to allow this video to be televised and

[51:03] the other two exhibits to be shown to

[51:07] the camera in the back of the courtroom

[51:08] is exactly what the Supreme Court says

[51:11] violates the 14th Amendment.

[51:14] So, and I appreciate that clarity and

[51:18] and perhaps again if you want to go into

[51:22] closed hearing, we can do so or if you

[51:23] want to refer to the pages. So, I want

[51:25] to know exactly what you're referring to

[51:28] whether it's in that uh 3255

[51:31] through 3548 which is being excluded or

[51:34] is it is it

[51:35] >> is not it is earlier and it's also the

[51:37] two other anticipated exhibits so we may

[51:40] as well deal with all of it at the same

[51:42] time. It's probably easier to do it in a

[51:45] closed proceeding because nobody has to

[51:46] be obtuse. I don't have to be obtuse in

[51:49] order to protect my client's rights.

[51:51] >> No, I appreciate that. And it actually

[51:53] prompts I in order for me to get to

[51:55] that. I I do want to ask the state uh

[51:58] are you intending to introduce the text

[52:01] messages as an exhibit in this

[52:03] proceeding, the preliminary hearing?

[52:05] >> Yes, judge. We will be uh attempting to

[52:09] and and moving for the admission of the

[52:11] text thread, the discord thread and

[52:17] I think and the the note that is

[52:20] referenced in Mr. Twigs 1102.

[52:23] >> Right. Let me take one step at a time

[52:26] just for clarity. And again, Mr. Novak,

[52:28] I really do appreciate you being so

[52:29] precise. is helping me parse it out so

[52:32] we can address it because it's important

[52:33] and I recognize that you're advocating

[52:35] for your client and so I want to give it

[52:38] its due time.

[52:40] The text messages from my understanding

[52:43] and either side weigh in. My

[52:44] understanding that those were released

[52:46] to the public

[52:48] months ago in their entirety.

[52:53] >> Judge, if I may, they were not released

[52:55] in their entirety. portions of them were

[52:57] placed into the charging document, the

[52:59] information uh that supported

[53:02] in part the charges that the state has

[53:04] filed. Uh we did not put the entirety of

[53:06] them in. Um and now we wish to publish

[53:10] more of them than were included in the

[53:12] charging document.

[53:13] >> I see. I for some reason I thought it

[53:15] was part of an exhibit for a motion,

[53:19] but uh Mr. MVC, I'm not sure if that's

[53:22] uh ringing any bells. I I want I'm I'm

[53:26] aware of the issue that the court is

[53:28] commenting on. I think the state needs

[53:30] to account for its decision to publish

[53:34] text messages that

[53:38] directly implicate the Supreme Court law

[53:40] that we're talking about. And I'm not

[53:42] don't want to pretend that I can

[53:44] anticipate what the court's concerns

[53:46] are, but

[53:50] that doesn't

[53:52] cure

[53:54] republication on television of what the

[53:57] state will call a confession in this

[53:59] proceeding. So, in other words, this is

[54:02] not like, oh, the cat's out of the bag

[54:04] or the barn door's open. This is another

[54:07] opportunity to violate Mr. Robinson's

[54:11] constitutional rights. And I'm not at

[54:13] all suggesting that somebody is

[54:15] intending to do that. Certainly not the

[54:17] court. And I'm confident that the

[54:19] state's council would not never intend

[54:21] to do that. But that would be the

[54:23] consequence

[54:24] of further televising what the state

[54:29] refers to as

[54:32] um previously referred to as confessions

[54:34] and certainly would refer to here in

[54:36] this proceeding as confessions. We are

[54:39] so acknowledging that they are

[54:41] statements of a party.

[54:48] We have not filed anything in this case

[54:52] that publicizes the text messages, the

[54:55] discord chat, the note which Miss Hunt

[54:58] is mentioning. And now that Miss Hunt

[54:59] has said that yes, we want this note to

[55:02] be presented into evidence and the court

[55:04] knows what this note is because the

[55:06] courts now watch the video. That's

[55:08] another piece of the same um problem.

[55:12] So,

[55:16] this is all simplified by the court

[55:19] being

[55:20] extra cautious about Mr. Robinson's

[55:23] constitutional rights, considering these

[55:26] exhibits to the extent the court deems

[55:28] that they're admissible and portions of

[55:29] them are relevant.

[55:31] um and not further televising them in

[55:35] this proceeding in a manner which we

[55:37] think we think is inconsistent with what

[55:39] the Supreme Court said in STSV. Texas.

[55:42] >> All right. I I appreciate that. Mr.

[55:44] Novak,

[55:46] Miss Hunt, would you like to

[55:50] respond because I I I I understand what

[55:52] Mr. Novak saying and and there may be a

[55:55] 403 issue as well as it relates to this

[55:58] and I'm not going to pretend to read

[55:59] your mind but

[56:02] um because I can't do that. All right,

[56:04] Miss Hunt.

[56:05] >> Um just to clarify for the record in the

[56:07] court, the the state's position is that

[56:10] we would like the audio played. The

[56:13] audio may be captured by the cameras um

[56:16] in the state's position, but we never

[56:18] intended to uh visually put them on the

[56:22] monitors such that cameras can capture

[56:24] them and and you know pause or or get

[56:28] the actual exhibits substances of the

[56:30] exhibits. I believe that was the media's

[56:33] position if I if I remember correctly is

[56:35] that they want everything um auto audio

[56:38] and visually displayed. But the state's

[56:40] position is just we just want the audio

[56:42] played.

[56:43] >> Right. But what's

[56:55] >> So I'm just focused on 16 right now.

[56:58] >> Okay. Yes. And that's the state's

[56:59] position with with regards to exhibit

[57:01] 16.

[57:03] All right. So, help me understand what

[57:05] what's the difference if it the audio is

[57:07] played or the video's played on what the

[57:10] court is identifying is well, first of

[57:13] all, 16 is admitted. So, that threshold

[57:16] has been met, but we're dealing with the

[57:18] publication in regards to what is

[57:20] publicized. Um, because this is going to

[57:24] Mr. Novak's argument about publicizing

[57:27] that is different than the court simply

[57:30] reviewing it for in its own privacy.

[57:34] I don't want to misstate your argument,

[57:36] but I believe that was one of the

[57:37] distinctions you made.

[57:38] >> The distinction that Ms. Hunt is drawing

[57:40] is, I think, what people call a

[57:41] distinction without a difference. It

[57:43] doesn't matter whether it's audio or

[57:44] video, and it doesn't matter whether

[57:46] it's on a television or on the internet

[57:48] or on the radio.

[57:50] It's going to be broadcast. And so it

[57:52] doesn't really matter whether it's audio

[57:54] or video. And it's actually not Mr.

[57:57] Robinson's video. It's Mr. Twig's video.

[58:01] And when the court mentioned 403, yes, I

[58:03] think the court did accurately read my

[58:05] mind, which is fine with me, but it's

[58:08] it's it's unfair prejudice of a

[58:10] constitutional dimension, and 403 is a

[58:13] rule of evidence.

[58:16] >> All right. So, Miss Hunt, as it relates

[58:18] to that uh publication, help me

[58:21] understand whether it's it's it's it's

[58:26] audio or video, what's the difference

[58:28] there? Help me understand that.

[58:30] >> I disagree that it's a distinction

[58:32] without a difference. Um, as we've

[58:34] discussed prior in this hearing, UC JA

[58:37] rule 4-202.02

[58:41] sub2 subj

[58:44] states that

[58:46] exhibits are presumed to be public court

[58:49] records and it does give the court

[58:51] discretion to regulate access when

[58:53] necessary to protect the integrity of

[58:55] the exhibit or ensure a fair trial. So I

[58:57] I do want to recognize that but that

[59:00] discretion should be exercised narrowly

[59:02] as as we've talked about before with

[59:04] publication uh regarding this this case.

[59:08] Um

[59:10] what the state is proposing we believe

[59:11] is is a narrowly tailored accommodation.

[59:14] We don't want to display the full

[59:15] exhibits obviously the within states

[59:18] exhibit 16 the video of Lance Twigs he

[59:22] is shown and then it can be seen uh

[59:25] exhibits that the state will then uh in

[59:28] the future move to admit 16.1 16.2 to

[59:31] the text threads, the Discord threads.

[59:33] So, we're thinking that what if if it's

[59:35] displayed visually, what the cameras

[59:37] will be able to do is pause that,

[59:39] duplicate them, replicate them,

[59:42] essentially have access to those

[59:44] exhibits. Um, what we're trying to do

[59:46] and and and and maybe they, you know,

[59:49] can do the same thing with the I'm sure

[59:50] Mr. Novak will say they'll do the same

[59:52] thing with audio. Um, but

[59:56] the hearing the tone, the context, all

[59:59] of that, that's why the state chose to

[00:01] do, we could have done a written 11:02

[00:03] statement from Mr. Twigs. We chose to do

[00:06] as as is allowed by 1102. We we chose to

[00:09] do a recording uh because that's how the

[00:11] state is choosing to present this

[00:13] evidence. We believe that the appearance

[00:16] of of or the the tone, the context

[00:20] um hearing Mr. twigs actually talk and

[00:23] and talk through these exhibits, talk

[00:26] through his experience is is a

[00:29] meaningful way of presenting our

[00:32] evidence. And so that's the difference

[00:33] we're seeing.

[00:34] >> I see.

[00:34] >> Um I obviously it's up to the court's

[00:37] discretion on how publication is to be

[00:40] made here. We've made our arguments

[00:43] generally about that issue and we'll

[00:45] we'll submit it to the court. Our our

[00:48] prime issue is that the the exhibits be

[00:51] admitted into the record, that the court

[00:53] consider them as part of the preliminary

[00:55] hearing standard and bind over. Uh but

[00:57] we'll submit it to the court on on

[00:59] publication, but that's the state's

[01:00] position.

[01:02] >> All right, Mr. Novak.

[01:06] >> I learned a long time ago that when

[01:09] that when the opposing party says, "Your

[01:10] honor, we're submitting on it," there's

[01:12] a suggestion that maybe the court is

[01:14] going to make a ruling which doesn't

[01:16] require more evidence, more argument

[01:18] from me. But I am going to say that it

[01:22] is fair for Miss Hunt to say, "Your

[01:23] honor, we wanted the court to see the

[01:27] witness and hear the witness so that the

[01:29] court could make reliability

[01:32] determinations because as your honor has

[01:33] said, that's really up to you." That's

[01:38] a different issue from the

[01:40] constitutional consequences

[01:43] of electronically

[01:47] publishing

[01:49] what the state will call a confession.

[01:52] Now, I've changed the word from

[01:54] television to electronically publishing

[01:55] because I'm trying to be in the 21st

[01:57] century. And the Supreme Court used that

[01:59] word in 1963. Sure. Um,

[02:13] citation to state

[02:16] standards for what is or is not a public

[02:18] document are not the issue. We have a

[02:20] there's a constitutional issue here. And

[02:22] I think that the court has already heard

[02:25] from me at least three times about what

[02:26] we think the court should do here.

[02:29] It's a preliminary hearing. It's not a

[02:31] jury trial. There may be a jury trial in

[02:34] the future at which we have to voard

[02:36] dire on yet another issue which is

[02:39] whether potential jurors

[02:42] were exposed to media

[02:45] um

[02:47] replaying of what the state called a

[02:50] confession. That's exactly what was

[02:53] structural error. There was no prejudice

[02:57] question in Redau versus Louisiana. And

[03:01] that's why in SDSV Texas, the Supreme

[03:03] Court said, "We have a rule. You can't

[03:06] televise what a prosecutor calls a

[03:08] confession before trial."

[03:11] Thank you.

[03:14] >> All right. Thank you. I I appreciate

[03:15] both parties uh advocating and arguing.

[03:19] It it's

[03:21] it's helpful for the court.

[04:13] All right. So in taking in consideration

[04:15] the argument which again I appreciate

[04:17] the parties articulating

[04:20] uh the further edits that the court is

[04:22] going to require uh to be redacted

[04:25] starting on page eight and I apologize I

[04:28] don't have a time stamp uh starting on

[04:30] page eight

[04:40] and sorry I'm just trying to

[04:55] Sorry, it's starting on page seven.

[04:58] Uh, right after is that at 8.

[05:15] Well, let's let's let's start starting

[05:17] on page six.

[05:24] Well,

[05:26] go back here.

[05:41] Starting on page six after 6 minutes and

[05:44] 56 seconds.

[06:30] going to 20 minutes and 27 seconds.

[06:33] Uh for reasons such as 403 uh under rule

[06:37] 403

[06:41] and again this is this is simply for

[06:43] publication. This is not taking out what

[06:46] the court will consider. The court is

[06:47] considering the entirety of states

[06:50] exhibit 16,

[06:52] but the court is trying to take a narrow

[06:54] approach in recognizing and balancing

[06:58] transparency with constitutional rights

[07:01] and doing so in such a manner that it is

[07:04] meaningful

[07:06] and doesn't diminish

[07:10] the court's duty as a magistrate under

[07:13] the probable cause determination.

[07:18] All right.

[07:19] >> State those times again, your honor.

[07:20] >> 656 until

[07:26] >> Right. Right. the line before 2027

[07:31] or or 2027 just so until 2027.

[07:36] Is that

[07:40] and then the pre and then what the court

[07:42] indicated

[07:46] previously

[07:50] from

[07:56] 3255

[07:59] until

[08:02] 3548.

[08:04] And I apologize, Judge. Just to clarify,

[08:08] these timestamps that you just gave, the

[08:10] two 3255 to 3548 and 656 to 2027,

[08:18] those are just not being published, but

[08:20] they have been admitted for your honor's

[08:23] consideration.

[08:23] >> Right. So, so kind of going through my

[08:25] three-step process.

[08:28] Exhibit 16, it's an entirety, not the

[08:31] transcript, but the because the exhibit

[08:33] is not the transcript. The exhibit is

[08:35] the video that has been admitted in its

[08:38] entirety for the court's uh

[08:41] determination as it relates to this

[08:43] case. So what I'm talking about here is

[08:45] this is only what will be published in

[08:49] the courtroom and on uh and captured by

[08:52] the video um

[08:57] is is is the differentiation. So what's

[08:59] being redacted for the lack of a better

[09:02] word or cut out is what's going to be

[09:05] published in the courtroom, not what the

[09:06] court's going to consider. The court's

[09:08] considering it in its entirety. There's

[09:10] the court's not going to redact anything

[09:12] in here. It's going to make its own

[09:14] determinations regards to uh relevance

[09:18] and everything that Mr. um

[09:25] uh everything that Mr. Novak noted. I I

[09:28] I'm taking that in consideration and

[09:30] making those determinations,

[09:32] which the court will do again because it

[09:34] it this is not something you do watch

[09:37] once and and then make your decision.

[09:38] This this requires

[09:40] analysis and the court is committed to

[09:43] doing that. But hopefully that gives you

[09:45] an idea of where

[09:47] as it relates to publication.

[09:49] >> Yes. Thank you.

[09:50] >> All right. To the media.

[09:56] >> Thank you, your honor. I I know how much

[09:58] time the court's already dedicated to

[09:59] considering this and I appreciate the

[10:01] additional time being afforded the

[10:02] media. There's just one additional thing

[10:04] that two additional things that I wanted

[10:06] to to mention to the court. I I do want

[10:08] to reiterate the point that I made

[10:10] before about the fact that if this is in

[10:13] fact a key consideration that the court

[10:14] is entering into um when trying to make

[10:18] the determination that it is going to

[10:20] make at the conclusion of this hearing,

[10:22] Utah case law, including the Archeletta

[10:23] case that the defense has referred to

[10:25] over and over again stresses that the

[10:27] same considerations that urge for access

[10:30] to

[10:32] a preliminary hearing itself, allowing

[10:34] the uh proceedings to be televised,

[10:36] allowing people to be in the courtroom

[10:38] also advocate for access to documents on

[10:41] which the court bases its ruling.

[10:43] Disclosing documents used, this is from

[10:44] Archeletta, uh on page 238 to 239.

[10:48] Disclosing documents used by courts in

[10:50] reaching a decision in a preliminary

[10:52] hearing will discourage decisions based

[10:54] on improper means and will promote

[10:55] conscientious performance by all

[10:57] officials involved in the criminal

[10:59] justice system. Therefore, providing a

[11:01] presumptive right of access to documents

[11:02] filed in connection with preliminary

[11:04] hearings can play a significant positive

[11:06] role in the functioning of that process.

[11:08] Do want to reiterate the belief that

[11:11] providing access to the documents on

[11:12] which the court bases its proceeding

[11:15] bases its decision in this proceeding is

[11:17] critical. Second thing that I do want to

[11:18] mention because the court referred to it

[11:20] before is the fact that without going

[11:22] into the content of this the um

[11:27] interview itself I believe I understand

[11:29] from the arguments being made today that

[11:31] many of these references are to text

[11:34] messages. Again the um

[11:38] public doesn't yet have access to that.

[11:40] Um,

[11:42] but I do believe that the documents

[11:44] filed in this case, including the

[11:46] information that was filed days after

[11:47] this contain many, if not all of the

[11:52] text messages that are now at issue that

[11:54] are going to be kept from the public in

[11:56] this proceeding. I know the court in

[11:57] previous occasions has said if this

[12:00] information is in the public already, I

[12:03] shouldn't be in the business of trying

[12:04] to now keep that from the public for two

[12:07] reasons. One, it's already out there.

[12:09] Second, it suggests to the public that

[12:11] something else lurks in there. Something

[12:13] else is being kept from them that isn't.

[12:15] And so, not only does it run counter to

[12:17] the idea that um of transparency

[12:20] generally, but it seems to suggest that

[12:22] there is something embedded in there

[12:24] that the public doesn't already have

[12:25] access to when the court denies access

[12:27] to materials in a proceeding like this

[12:29] that are already public. And so I I

[12:32] again recognizing how much time the

[12:33] court has already invested in this. I I

[12:35] I believe it's wise and I believe it

[12:38] would help avoid potentially making a

[12:40] mistake that the court later on then

[12:42] thought, "Oh, I I wish someone had

[12:43] brought that to my attention to check

[12:46] whether or not any of the materials that

[12:48] are now cons under consideration to be

[12:50] withheld from the public are actually

[12:51] already in the public's domain because

[12:54] they are part of the information and

[12:55] probable cause statements that were

[12:56] filed at the outset of this case."

[12:58] That's all I had here on it.

[12:59] >> Thank you.

[13:01] And all rights, council, if you would

[13:04] like to state your name.

[13:07] >> Your honor, Jeffrey Nyman, on behalf of

[13:08] the Kirk family. Uh, I've been very

[13:11] hesitant to speak up at these

[13:13] proceedings. We understand it's the

[13:15] state, the defense, and the judge.

[13:16] You're all doing your job. Uh, but I

[13:18] feel as if we need to. I want to be

[13:20] clear as to what the Kirks family's

[13:21] position is on all of this. The Kirk

[13:23] family believes strongly that if the

[13:25] evidence is being admitted in this

[13:26] preliminary hearing, it should be made

[13:28] public for the world to see. No

[13:31] redactions. This court has tools at its

[13:34] exposure, tools at its disposal to make

[13:37] sure the defendant receives a fair

[13:39] trial. You'll use them if you find that

[13:41] you need to.

[13:44] That's it, your honor.

[13:46] to not be transparent here, to not be

[13:49] open, to not let the world see what

[13:51] happened will create doubt and distrust

[13:53] in the judicial system. And that's not

[13:56] what anybody wants. That's not what any

[13:58] of us believe should happen here. And

[14:00] we'd ask the court to consider the

[14:02] position of the family in making its

[14:03] ultimate decision.

[14:05] >> Thank you.

[14:07] Anything further before I issue my final

[14:10] ruling to clarify what's been stated,

[14:12] just so it's clear to all parties.

[14:16] Mr. Novak and that your mic's muted.

[14:23] >> Yes. We just want to say that we totally

[14:26] respect

[14:28] um

[14:31] Miss Kirk's position in this situation.

[14:35] Um as well stated by her council.

[14:43] um

[14:46] media council's suggestion that because

[14:48] the state in our view improperly

[14:51] disclosed what the state is going to

[14:54] call a confession

[14:56] in charging documents does not mean that

[14:59] this court can just let it go. This has

[15:03] been the most

[15:07] transparent criminal proceeding I've

[15:09] ever been involved in and I am sure it

[15:12] will continue to be transparent. But

[15:14] there are some things which the Supreme

[15:16] Court has said the public has to wait

[15:20] for the

[15:22] jury trial in order to hear evidence

[15:26] because the number one preeminent

[15:28] question is how do we protect

[15:32] Mr. Robinson's right to a fair trial.

[15:34] And with all due respect to the Kirk

[15:37] family and with all due respect to the

[15:39] media and with all due respect to the

[15:40] public, the number one concern in this

[15:44] proceeding

[15:46] is

[15:48] Mr. Robinson's right to a fair trial,

[15:50] which means a jury which has not been

[15:53] exposed

[15:54] before it's in this courtroom under this

[15:58] court's supervision with this court's

[15:59] guidance.

[16:01] um to

[16:04] pre-trial

[16:06] information of this nature.

[16:09] >> All right. I I do have a follow-up

[16:10] question for you, uh Mr. Novak.

[16:13] Returning to the ST's case, it's an

[16:15] important point. I want to make sure I

[16:16] fully understand it before I issue my

[16:18] final ruling.

[16:20] Uh my understanding is ST cited to a

[16:23] dissenting opinion in in Ru

[16:26] >> Reau. Yes,

[16:27] >> Redau. My French is bad.

[16:29] >> Mine too.

[16:30] um

[16:32] that constructed a rule that publicizing

[16:34] a confession runs a foul of the 14th

[16:36] amendment, but it didn't appear to be

[16:38] the holding. It was the opinion talked

[16:40] about coerced confessions being put out

[16:42] to the public. Could you cite to SDS

[16:45] that that supports

[16:47] >> the the portion that the court is

[16:49] looking at is exactly what I would read

[16:50] to the court. It says, "We constructed a

[16:53] rule." Now I understand there's a

[16:55] parenthesis there where it refers to a

[16:58] dissenting opinion in redau because I

[17:00] think that was a case where there were

[17:02] multiple opinions and we all understand

[17:05] how complicated it is to figure out what

[17:07] comes out of a Supreme Court opinion

[17:09] when there are multiple concurring and

[17:11] dissenting opinions. But what the court

[17:14] says in Estes is that televising,

[17:17] I'm going to paraphrase a little bit,

[17:19] televising what the prosecution calls a

[17:22] confession

[17:24] de facto violates a defendant's 14th

[17:27] amendment right to due process without a

[17:29] prejudice analysis, without even looking

[17:32] at what happened in the trial visa v

[17:35] that earlier televised analysis. So yes,

[17:39] we could go down a you know what lawyers

[17:41] like to do. We could go down the rabbit

[17:43] hole of what were all the different

[17:44] opinions in Reau and why is EST citing

[17:48] to a dissenting justice. But what Estie

[17:52] said is we constructed a rule. It's not

[17:55] a reference to a dissenting opinion. And

[17:57] I think when the Supreme Court says we

[17:59] have a rule, we should just take it at

[18:01] face value that that's the rule.

[18:05] I understand what's in parenthesis there

[18:06] is a little confusing but what the

[18:10] Supreme Court is saying in Estes is we

[18:13] have a rule and if I may have one moment

[18:39] The Estie's opinion was written by

[18:41] Justice Clark.

[18:46] There was a concurrence by Chief Justice

[18:48] Warren, Mr. Justice Douglas, Mr. Justice

[18:54] Goldberg

[18:56] and then there were dissents by justices

[18:58] Stewart, Black, Brennan, and White. So,

[19:01] we could spend some time

[19:04] um destruct deconstructing that, but

[19:06] it's a five4 opinion of the United

[19:08] States Supreme Court saying what rule

[19:12] they adopted in Rudau versus Louisiana.

[19:18] It's a five to four opinion.

[19:24] And I would have to sit down with the

[19:25] with the cases just like your honor

[19:27] probably is wishing it had time to do

[19:28] right now. The court had time to do

[19:30] right now. But it's a five-4 opinion of

[19:31] the United States Supreme Court saying

[19:33] what REDO what the holding in ROU is.

[19:36] >> Thank you. All right. I appreciate that

[19:38] guidance, Mr. Novak. So

[19:41] taking in consideration all the factors

[19:43] uh the the previous edits uh starting at

[19:52] I believe I said starting at 6 minutes

[19:54] and 56 seconds going to

[20:04] 20 minutes and 27 seconds. Does that

[20:06] comport what I previously said?

[20:08] >> Yes.

[20:09] >> All right. And then the other edit is

[20:28] from 3255

[20:34] until

[20:36] 3548.

[20:38] Does that comport with what I previously

[20:40] said?

[20:40] >> Yes.

[20:41] >> All right. and then from 3548 to the

[20:45] remainder 37

[20:48] can be included. So there is that gap

[20:50] but that can be included

[20:53] and part of the reason in responding to

[20:56] the media and it's an important point

[20:58] and to uh the representative for um

[21:02] victim representative Erica Kirk is I

[21:06] recognize the importance of

[21:08] transparency.

[21:10] I also recognize the importance of

[21:12] balancing constitutional rights and it

[21:14] is a fine line. One of the reasons why

[21:18] uh for these edits includes under my

[21:20] analysis under 403 going to the last

[21:24] part uh needlessly presenting cumulative

[21:27] evidence and based off the

[21:29] representation of the state that the

[21:32] text messages may be introduced.

[21:35] The court is ruling that this may be

[21:37] revisited in case that doesn't happen.

[21:40] But uh to to throw back the curtain, uh

[21:45] much of this is the text messages to be

[21:48] clear. And again, all of this is going

[21:50] to be considered by the court. I'm

[21:53] balancing all these competing rules,

[21:55] constitutional rights as well as

[21:57] transparency. And sometimes it is an an

[22:00] imperfect balancing act. But I'm trying

[22:03] to act in the interest of justice in

[22:06] making this balancing act and for

[22:08] transparency to actually be transparent.

[22:11] And so that is the ruling of the court

[22:13] as it relates to states exhibit 16.

[22:17] Turning to the state,

[22:19] do you wish to make the edits as uh

[22:24] identified by the court and play it

[22:26] tomorrow to publish it or do you wish to

[22:31] go a different route?

[22:34] I think just to make sure that we are

[22:36] completely in line with the court's

[22:38] ruling, I think we would like to take

[22:39] the evening to make sure the edits are

[22:41] all correct and and start out tomorrow

[22:42] by playing it.

[22:44] >> And if you wouldn't mind when you have

[22:46] that final copy, if you could send it to

[22:48] defense to review to ask to form just to

[22:51] make sure it comports with the

[22:53] timestamps that the court has

[22:54] identified. And I know this has been a

[22:56] long conversation, but I just want to

[22:58] make sure everyone understands, okay,

[23:00] this is what the court said and and

[23:03] we're all on the same page. Uh that that

[23:06] what is before that's being presented

[23:08] reflects that. So not downing the state,

[23:11] simply allowing everyone to review it

[23:14] before it is introduced into court.

[23:16] >> Absolutely. We will do that.

[23:17] >> All right.

[23:20] On this issue, anything further

[23:23] >> as to this exhibit? No. All right.

[23:27] Well, Miss Hunt, uh, let us move

[23:29] forward. Being that you indicated that

[23:32] you're going to, uh, prepare this for

[23:34] tomorrow, how would we like to proceed

[23:36] for the remainder of our time together?

[23:41] >> We have just a moment.

[23:42] >> Of course.

[24:03] And I know the state's engaged, but if

[24:05] someone could send a copy of that to the

[24:08] court after it's been reviewed by

[24:10] council, so the court can review it to

[24:12] double check that it comports with what

[24:15] I said to make sure that it reflects

[24:17] what I was intending to reflect. That

[24:19] way, we can save time as well.

[24:22] Thank you.

[24:55] judge. It's the state's position that

[24:56] that we close for today. Uh come back

[24:59] once those edits have been made. Um we

[25:02] can start tomorrow with that and and

[25:04] proceed from there.

[25:06] >> All right. Um

[25:09] any opposition from defense?

[25:14] >> Uh no your honor. I I do want to point

[25:17] out that there is one additional exhibit

[25:22] which we think the state will offer

[25:24] through Mr. Davis. I'm sorry, Agent

[25:26] Davis.

[25:29] >> Agent Davis

[25:32] as to which we proposed

[25:34] redactions.

[25:36] It's five screenshots

[25:39] of Mr. Twigs's phone. It's not a 25page

[25:43] transcript. Um,

[25:47] I'm not suggesting that we should argue

[25:48] about that now, but I'm just um

[25:52] putting making the court aware of that.

[25:54] It's a much simpler

[25:56] um exercise. It's not nearly as

[25:59] complicated. Um

[26:02] I think that's the only one where we

[26:03] proposed other redactions.

[26:06] Um but the publication question still

[26:09] remains as to all of the

[26:13] um

[26:14] asserted statements by Mr. Robinson. So

[26:18] it's according to Mr. Twigs, according

[26:20] to the text messages, according to the

[26:22] discord and the note. All of that is

[26:25] part of the SDS's issue and I just want

[26:28] the court to be aware of that. Um,

[26:32] and I understand it's hard because the

[26:33] court doesn't have all those exhibits in

[26:35] front of it, but I just want the court

[26:37] to understand. Um, I think that all of

[26:40] the argument that we've had with respect

[26:42] to the transcript sort of lays the

[26:43] foundation for the legal issues, but

[26:45] it's going to come up with respect to

[26:46] those exhibits as well. And I the the

[26:49] comments that the court made about 403,

[26:50] I understand it with respect to

[26:53] relevance and admissibility, but I'm not

[26:54] sure how 403 applies to

[26:57] the televising of statements that the

[27:03] prosecution will call confessions. So

[27:05] maybe that's something

[27:06] >> it was a different prong that I was

[27:08] addressing.

[27:08] >> Good. Okay. the the duplicative part or

[27:11] cumulative part as it relates to the

[27:14] text messages and that's why reserved

[27:16] that if it doesn't come in then it can

[27:18] be revisited to the redactions that's

[27:21] made public

[27:21] >> for evidentiary purposes as opposed to

[27:23] for publication purposes.

[27:25] >> Right.

[27:25] >> Understood.

[27:26] >> Right.

[27:26] >> But if if the court wants to recess, we

[27:28] have no problem with that. And so just

[27:30] going to your point and and again trying

[27:31] to maximize our our efficiency given

[27:35] that your arguments which you

[27:37] articulated well would you would you

[27:39] mind perhaps preparing preparing a

[27:42] memorandum or a a short brief that

[27:47] can help us move forward because I want

[27:49] to look at the in detail what you're

[27:50] citing to I it's difficult on the fly to

[27:54] jump into SDS and go to a portion and I

[27:57] want to give your argument full

[27:58] consideration.

[27:59] And it's a suggestion if you can. I know

[28:01] you're extremely busy, but it may be

[28:03] helpful if you choose to. If you choose

[28:04] not to, I will certainly allow the time

[28:07] to for argument. I just want to make

[28:09] sure I'm fully up to speed as opposed to

[28:11] trying to shoot from the hip there.

[28:13] >> When the court says, I'd like to know

[28:15] which exhibits and what the legal issues

[28:17] are ahead of time so that at 9:00 a.m.

[28:20] the court has had an opportunity to

[28:22] already had an opportunity to understand

[28:24] what's coming. We're happy to do that.

[28:25] and I'll try to get something to the

[28:27] court by 8 a.m.

[28:28] >> I appreciate that. Thank you, Mr. Novag.

[28:30] >> And if you wouldn't mind obviously uh

[28:32] sending a copy to the state as well,

[28:35] exparte. All right.

[28:36] >> Is the court referring to a formal

[28:38] filing?

[28:39] >> No, just if you

[28:40] >> a bench memo. a bench memo and that all

[28:43] sides can have a take a look at just to

[28:45] prepare. Again, in in in in

[28:49] light of efficiency and trying to

[28:51] maximize our time and give as much

[28:54] weight and time to addressing these

[28:56] issues fully as opposed to trying to hit

[28:59] them at the moment and going doing a

[29:01] deep dive when when it is it's a little

[29:03] bit more difficult. So,

[29:05] >> happy to do if you'd like to. I I would

[29:07] I I I would entertain that to the state.

[29:09] If you want to confer and talk to see

[29:11] where you are and want to do the same,

[29:13] certainly you are entitled to do so as

[29:15] well.

[29:16] >> I think we we plan on doing that. Thank

[29:17] you, Judge.

[29:18] >> All right.

[29:21] All right. Is there anything else for

[29:22] this this afternoon?

[29:25] >> Not from the state.

[29:26] >> All right. To defense.

[29:28] >> No. Thank you very much for your time,

[29:29] your honor.

[29:30] >> All right. Cy, we'll be in recess until

[29:33] 9:00 tomorrow morning.

[29:35] All right.