Preliminary Hearing — Day 3 (July 8, 2026)

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Preliminary Hearing — Day 3 (July 8, 2026)
Court proceeding — State of Utah v. Tyler James Robinson (Case 251403576, 4th Judicial Dist. Ct., Utah County). Transcript is the YouTube auto-caption track of the Court TV feed (https://www.youtube.com/watch?v=szsmK2Ul9XY) — verbatim ASR, not a certified court transcript.

>> Session state of Utah versus Tyler James Robinson. Council, please enter your appearances. Chad Grimmander, Ryan McBride, Lauren Hunt, David Serg, County Attorney Jeff Gray, and Chris Ballard are also present. >> Good afternoon, >> Kathy Nester, Richard Novak, Michael Bert, and Stacy Visser for Mr. Robinson who's present in the courtroom, your honor. >> Good afternoon, Mr. Robinson. Good afternoon. Uh and also for the record, uh the court recognizes, uh the presence of victim representative, Miss Erica Kirk. Good afternoon. Uh first, with respect to courtroom protocol to maintain security and decorum, any individual who exits the courtroom during proceedings will not be permitted to re-enter until the recess. All council are expected to take reason reasonable measures to safeguard confidential communication. Such measures may include the use of screen protections on electronic devices and care to avoid inadvertent capture of privileged or private discussions by recording equipment or by those present in the courtroom. And as you note, the microphones on your uh tables are turned off. So please come to the lectum uh for making when you're addressing the court or a second the court will address the camera and still op photo photographer uh camera operator and still photographer and if you both could come >> All right. Could you both state your names? >> Uh, John Wilson, KSL Television. >> Tess Crowley, Desireette News. >> Good afternoon. Uh, could you state your roles for today's hearing? >> Uh, video recording and streaming of the proceedings. >> I'm the pool still photographer. >> All right. And have you both reviewed the court standing decorum order? >> Yes. >> Do you understand the requirements set forth in that order as they apply to your activities today? >> Yes. Do you require additional time to review the order or to adjust equipment to ensure compliance? >> No. [clears throat] >> Do you any anticipate any difficulties complying with the order? >> No. As we begin this afternoon, the court wishes to acknowledge the importance of safety, dignity, and well-being of all those who are present or who may be present during these proceedings, including the parties, council, witnesses, court staff, and members of the public. The court is also mindful of its solemn obligation to protect and uphold the constitutional rights of both Mr. Robinson and Miss Kirk. In furtherance of those important entrance interests, all persons attending these proceedings are reminded that portable electronic devices are not permitted in the courtroom or on the fourth floor. Cell phones are not permitted in the courtroom unless expressly authorized. Any unauthorized possession or use of a cell phone in the courtroom may be addressed by the court. For those individuals who are authorized to have a cell phone, please place your device on silent at this time so that these proceedings may continue without interruption. The court also expects that every person in attendance will be treated with the dignity and respect to which they are entitled to. Consistent with the court standing decorum order, all spectators shall remain quiet, civil, and orderly at all times. Spectators shall not engage in conduct that is distracting, disruptive, provocative, disrespectful, univil, or threatening in any manner. Spectators shall not make audible comments of any kind, shall not shake or nod their heads, and shall not make gestures or other visible reactions during their hearing. Spectators shall also not wear or display pins, buttons, signs, clothing, photo, photographs, or other items expressing support for or in opposition to any person connected with this case or expressing any position concerning the status of this case as a capital offense. The court appreciates the cooperation of all present in maintaining courtroom a courtroom environment that is safe, respectful, orderly, and faithful to the rights of and dignity of every person involved. Finally, I wish to note that this preliminary hearing is scheduled to conclude this Friday at 5:00 p.m. I raise this as simply a reminder for the parties, particularly given that we have now reached the midpoint of this week. I recognize and respect the constitutional rights of all parties. When this preliminary hearing was set, the court allocated a substantial amount of time for both sides to address the matters they consider necessary and appropriate for purposes of this proceeding. The standard at a preliminary hearing is probable cause. And with that in mind, I ask council to remain mindful of the time that remains and manage your time appropriately so each of you is able to fulfill your duties to your respective clients within the time frame that has been provided. And with that, I wish to inquire a brief overview on what is anticipated from each party in order the court has a roadmap on how we are proceeding for the remainder of this preliminary hearing. First turning to the state and if you wouldn't mind >> Thank you, your honor. We anticipate presenting evidence through agent Brian Davis this afternoon. Uh, Sergeant Jennifer Falmina is also present in the courthouse and prepared to testify if we get to her uh today as well. Um, following her testimony, which we believe will carry into tomorrow if we do get to her today, uh, that will close the presentation of the evidence on the part of the state. Thank you, Mr. >> good afternoon, your honor. >> Good afternoon, >> Michaelberg for Mr. Robinson. Judge, we have two remaining witnesses. Uh, Miss Oliver from the, uh, ATF and Miss >> All right. And to both parties, thank you. I appreciate that. Do both parties anticipate any issues >> uh concluding their case? Obviously, there's variables, cross-examination, and kind of the fog of war that happens in court proceedings, but any uh party anticipate issues uh concluding at or before Friday at 5:00 p.m. Just want to highlight one issue for the court because it may be um that the court wants to do some time management. Um the state is going to profer a video 11:02 a video recorded 11:02. We have provided the state, I want to say about a day and a half ago, with proposed redactions because we believe that portions of it are not admissible even in a preliminary hearing. And the way we did that is we provided a transcript and then a redacted version of the transcript of the entire video recorded interview. It may be that the court wants to look at the proposed redactions not while court is in session but during some other period of time because the transcript of the video uh which we prepared and we provided to the state so the state could raise any concerns about the accuracy of the transcript that's not an issue. Um the admissibility of portions of the video or the issue is about 20 pages maybe 22 pages. So to use court time for the court to look at the proposed redactions may um be an inefficient use of of the time. I'm not tell saying when the court should do it. I'm just saying we may not want to do it between 9 and noon and 1 and 5 tomorrow or Friday, but it's going to come up today. And so the question will be when does the court want to engage in the process of reviewing a 22-page transcript that has re has proposed redactions. That's >> I appreciate the heads up. Uh Mr. Gernander, do you wish to be heard? >> You know, the state has received the uh proposed redactions and we are prepared to address them uh when that time comes. However, we however we do intend on presenting uh testimony through Mr. Davis through Agent Davis and when we get to that point uh when it's ripe for discussion we can address the matter with the court. That would be our preference. >> All right. Well, I'll address it as it comes. And uh to the defense uh with the remaining time, do you feel confident that it is sufficient to accomplish your duty? >> We do, your honor. >> Thank you. All right. Does either party require the benefit of the record before we begin to >> Ryan McBride for the state, your honor. uh just to address an issue that's come up and we expect to come up as we enter the second half of this preliminary hearing um regarding the admission of exhibits. [clears throat] Under rule 104A, the court must decide preliminary questions about whether the witness is qualified or privileged exists or evidence is admissible. In so deciding the court is not bound by the rule of evidence, the rules of evidence except those on privilege. uh in our and I'm bringing this up again because it's likely to come up and it is going to affect the procedures we use as we go forward. The court holds two roles really at this stage. One is a gatekeeper role on admissibility and the second is the factfinder role as the magistrate and I know you've referred to to those two roles uh earlier in this proceeding. And the court rule 104A means the court can consider evidence even though its admissibility has not yet been determined in its gatekeeper role. And uh then after it has been admitted it can determine the admissible qualities of that evidence or that exhibit. And that uh is especially relevant at a preliminary hearing where foundational evidence is reliable hearsay under 1102b3. Um, even at trial, State v. Griffin, which is a 2016 UT33 Utah Supreme Court case, uh, the court has held the rules of evidence do not apply to evidence used to establish foundation for admission of other evidence. It's a quote from paragraph 33. Um, so the point is foundational rulings on on admissibility can consider evidence that is not in itself in and of itself admissible. That's proper. The second point is um the courts of appeals recognize a presumption that the court considers when acting in its factf finding role only the admissible evidence and disregards any inadmissible evidence. Most commonly that comes up in a bench trial type case where prior bad acts evidence is admitted and it can have dual inferences. State v. Adams was one of those cases. That's 2011 UT app 163. And what it means is we know that a factfinder is not tainted by the judge's role as a gatekeeper even though the judge as a gatekeeper considers potentially inadmissible evidence. Um it also means that the court doesn't have to distinguish which hat it's wearing um as we go through the proceeding. Um in this circumstance, this this hearing is taking place outside the presence of the jury. um the state has laid and intends to lay and continue to lay foundation in open court. Um such foundation sometimes will include discussion of the actual exhibits rather than just profers as well as foundation for the exhibits. Now I don't think that there's any issue between us and the defense in understanding that kind of statement of the law. I think the issue that has come up is under rule 104b determinations of admissibility take place outside the presence of the jury. The defense uh appears to be assuming the jury to be basically the potential jury pool and trying to trying to uh avoid the potential taint to a jury pool that discussion of evidence which may or may not be admissible may cause. I think that's a fair point. I just want to put the court on uh notice of our view and how we have and intend to proceed as we move forward. Um, under 10 104B, that determination takes place out the presence of outside of the presence of the jury. Under under the rules, there's a presumption that these hearings and this hearing is open to the public, including admissibility hearings. Um, because of that, we intend to move forward and move the admission of evidence and argue the admission of evidence as in in open court. Should the court close the hearing, of course, that would change, but that's because that's the presumption in the law and that's conforms with 104B. That's our intention unless the court or council moves to clo unless court or council moves to close the hearing. So, in summary, the court could a court can and often should consider evidence and review the exhibits before admission. Two, the court is not tainted by doing so and can distinguish between admissible evidence and improper evidence, and there's no need for the court to identify which hat it's wearing. And three, absent closure, we'll move forward with our evidence in open court. >> All right. Well, well, I'll hear from defense if you want to be heard on that issue if I see you. Okay. >> Just brief briefly briefly, your honor. I'm sorry I have two microphones. I'm just trying to um be technologically savvy. Um I think the 104 issue I agree completely with Mr. um McBride on what he's saying. Um because of the Supreme Court's ruling in Archeletta concerning the availability to the public of exhibits from a preliminary hearing, which of course is a fact specific inquiry by this court. Um, we will continue to raise concerns about our client's right to a fair trial when we think it's appropriate and the court will make the rulings it makes. That's all I want to say. >> All right. Right. To both parties, uh, the standing request remains when you are moving a piece of evidence into uh to the record, I ask three steps. Admissibility to admit it to be published in the courtroom and then to be published on that screen. And I'm going to have the screen adjusted slightly um because I want if it's published I want it to be meaningfully able to be viewed. And I noticed uh somebody sent me a screenshot that that angle creates an interesting um angle that kind of distorts it. So in the interest of if we're going to be transparent, it should be viewable transparent. So we'll adjust that screen uh briefly, but please address those three issues. And I understand one side or the other might say, "Well, we agree or we don't agree." Period. But please, I'm trying to make sure that the record before us is a clean and clear record. So, if you would do that, the court would appreciate that. All right. Uh, anything further? >> No, your honor. >> All right. Uh, the court acknowledges that the exclusionary rule is in effect. At this time, any witness who is subject to exclusion should be excused from the courtroom. I will leave it to the parties to uh monitor the courtroom to ensure that uh compliance is is adhered to. With that, turning to the state, you >> Yes. I mean, I want the the the press to be able to see it too. But when it's there is a bit of a distortion when it's at that particular angle. So, uh, while the the parties are getting moving forward, go ahead and adjust it and let's put a sample image of something has nothing to do with this case on the screen. >> Judge, that's another issue. I I don't know that it is projecting yet and I don't know if we need to take a break to make sure that >> is it not projecting on the monitors now. >> Okay. Uh technology is challenging us again. Well, uh what's what's our thought staff on projecting? Is this something that's not going to be cured by turning off and >> I just need some other tables besides three so we can try. >> All right. If you if you all of you council table again, I'm trying to do this to get this out of the way so we can move forward cleanly. if you wouldn't mind turning off your monitor and then turning it back on. Um, and >> and if I could borrow somebody to do that to the witness monitor as well so we all get them in sync. Thank you, sir. I appreciate that. And for the uh lectum as well. Let's just see if we can get that up because that could cause a delay. I just want to knock this out first. however, >> We've done that in trial before. >> If that doesn't address any security issues, let's do that. I I just want to make it easy. That way, that TV can be more flat and it's not a distorted view and then the media can look at that TV. Again, transparency needs to be viewable, not just there in concept. >> All right. Yeah, let's go ahead and do that. How are the monitors looking? >> Nothing. >> I need them to actually plug in their HDMI. >> I see. Could I have someone with your laptop plug in so we can test? So we can check if it's receiving the data or the information from your laptop to allow us to project. That may be the issue. >> Mr. Ellis is plugged in. >> I appreciate the party's patience, especially after I just said we're at the halfway point. We're getting a thumbs up. >> All right. So, it's displaying for defense for prosecution. >> We're working on it right now. >> Yes. >> All right. And on the screen monitor here, it looks like something came up. >> It's working. >> All right. And All right. We'll just hope that the monitor for the witness works as well. All right. So, we're if you want or just >> just bring it in and go ahead and we'll get started and how much time is needed >> Well, let's go ahead and proceed and then when we when we take a break then we can do that. But for now, uh the media, if you can see that TV, if you have any problems, please let me know. Uh and we're going to bring in that second TV. We just want to get get the train on the track here. All right, Miss Hunt. >> This date calls Agent Brian Davis. >> Agent Davis, if you would like to come forward and be sworn in. >> You do solemnly swear that the testimony you shall give in the case now penny before the court will be the truth, the whole truth, and nothing but the truth. So help you God. >> All right, agent, if you wouldn't mind having a seat. To your left is a water bottle. And if you're seated, you'll have to adjust that microphone, pull it down, and then pull it toward you to ensure that it is uh picking up your >> All right, Miss Hunt, your witness. >> If you could please state your name and spell your last for the record. >> Yeah, it's Brian Davis at D- A V I S. >> What is your occupation? I'm an agent with the Utah State Bureau of Investigation. >> How long have you been with uh Is it fair to call that SBI? >> Uh correct. Yes. >> How long have you been with the SBI? >> Uh total 18 years. >> I want to briefly go over your experience as a law enforcement officer generally. Um actually, are you a law enforcement officer in that capacity? [clears throat] >> Uh yes, correct. >> How long have you been a law enforcement officer? >> A total of 27 years. You mentioned you were with SBI for 18. Is that right? >> Correct. Yep. >> What other agencies were you with prior to SBI? >> So, Department of Public Safety. I've been a state trooper for eight years. Uh 18 years with SBI and uh one year with the Utah Transit Authority Police. >> We've heard talk from other officers about post. What is POST? >> It's peace officer standards and training. >> Did you complete that? >> I did. >> Is that a type of certification that you hold? >> Yeah, it's a statewide certification that any peace officer in state of Utah uh local, state, county all uh go through to become a certified peace police officer. >> Has that certification lapsed or been any gaps in that time since you received it in 1999? >> No, it's been uh constant since then. I want to talk about a bit about your training experience within law enforcement. Uh what roles have you had at SBI? Uh I began as a a call enforcement team. We did covert and overt operations. Um I was assigned to an ATF uh the PSN task force focusing on uh violent felons with guns and drugs. I was on a FBI task force uh safe streets. It was a gang violent crime task force. I was on the US Marshals fugitive uh apprehension team task force. Um I've been I've been on several different OICI protocol teams, officer involved critical incident teams around the state of Utah and within SBI. I've been on dozens of those scenes. Um and uh within major crimes of SBI, I've I've been uh um we've worked a variety of cases. I work anything from violent crime, homicides, sex crimes, drug crimes, uh firearm crimes, white collar crime, fraud. I was also on a task force with a FBI public corruptions task force as well. >> Was that all on the job training or did you receive specific um training or conferences, things like that? >> Yeah, throughout the years, various trainings, conferences uh for for in all all those capacities. Um over the years >> you mentioned you've been a part of homicide investigations. >> Yes. >> Can you estimate how many? >> Um my best guess would be 60 plus where I've had somewhat some involvement. Um I also currently work on a cold case unit with SBI. So we consult with uh agencies around the state of Utah and I've probably consulted on over 50 of those as well in various capacities and roles. Have you received training specific to homicide investigations? >> Yes, I have. >> What types of things have you been trained on in that regard? >> Um, uh, just several different times, weekl long course training conferences on homicide. Um, from um, case studies to how to manage manage a case. Um, also I've been on several trainings with like crime scene investigation. I'm a fereral certified. It's a It's a 3D ferro scan of of crime scenes. >> What's a ferrocan? >> It's a 3D laser imaging uh uh that is used pretty commonly on crime scenes. It just accurately documents crime scenes. Um and uh I've been on uh I'm a certified I've been certified as a a forensic interview and the forensic interview technique with with more more child victims. So just various trainings like that. You mentioned currently you're a part of the cold case team within SBI. >> Correct. >> Have you been assigned as part of the investigation into the homicide of Charlie Kirk? >> Yes. >> And what is your role? Uh do do you have a a specific role in that investigation? >> Yes, I was assigned uh to be a a case agent along with agent Dave Hull. >> What does it mean to be a case agent? Essentially, you're you manage the case, responsible for it. Ultimately, um you you you direct um the case as you go along. You uh uh make assignments uh as needed. Ultimately, everything comes back to to you like in the form of reports, evidence, and such. Um and then uh ultimately, you're you screen that case if applicable to the appropriate county attorney or DA. You mentioned that you are a co-case agent or or were with agent Hull. Is it typical to have two case agents on a case? >> Uh it can be on a especially on a large uh large case. Yes. >> Has this particular case been large? >> Have other police agencies been involved in the investigation of this case? >> Yes. Who has been designated as the primary investigative agency? >> Uh the State Bureau of Investigation as the primary investigating agency. >> I know there are probably uh several or dozens, but what other agencies have you been working with? >> Uh FBI, u um ATF as as well. um several local state uh agencies, UVU police, ORM police, Utah County Sheriff, uh Washington County Sheriff, St. George PD, most of all the agencies within Utah County and even others outside of the county. So, we've worked with a lot of agencies with this case. It was a pretty large scale investigation. >> You mentioned ATF. What does that stand for? >> All right. I know a lot about um what we've So, as a case agent, have you been in court during the this preliminary hearing? >> Yes. >> You've heard prior testimony. >> Yes. >> We've talked a lot about the events of September 10th of 2025. I want to direct you your attention to September 11th, 2025. Do you remember that day? >> Um what happened on that day in relation to your investigation? Um I I spent the day at the at the command post with various assignments. Um that evening it was about 8:30 p.m. I believe of the 11th. Um I received a phone call from Sergeant Elsh requesting that I travel to St. George. >> Who is Sergeant Elsh? What what um agency is Sergeant Elsh with? >> Uh with SBI >> and he requested that you travel to St. George. >> Correct. >> What was the reason stated for that? Uh we received information that an individual um had was turning himself in or had turned himself was going to turn himself in uh to police in regard to his involvement with the incident, the >> And I'm sorry, what time did you get that information, that call? >> About 8:30 p.m. >> Did you travel down to St. George? >> I did. >> On what day? >> Uh of September 11th. Did anyone else go with you? >> Uh yes. So we we traveled to the Salt Lake City airport to a hanger there and we were flown down on a fixedwing aircraft. It was uh Sergeant El Scholes. Uh it was Agent Fulier with FBI, Agent Anderson with FBI, um Ryan McBride and myself and the two pilots. >> And who is Ryan McBride? >> With the Utah County Attorney's Office. >> What time did you arrive in St. George. >> Uh, we landed probably about 11 11:30 p.m. at the St. George airport. >> And again, this is this would be the evening of September 11th, 2025. >> That's correct. >> Where did you go once you landed in St. George? >> There we are transported via ground to the Washington County Sheriff's Department. >> Did you coordinate at that time with any other law enforcement agencies down in southern Utah? Uh we did. >> You did? >> We did. Yeah. >> What other agencies? >> Uh well with FBI as we were traveling and then along with u mainly the Washington County Sheriff's Department, we also have agents with an FBI assigned to the southern Utah area. So working with them as well, just making plans and coordinating resources and manpower and personnel. >> And you stated you went to the Washington County Sheriff's Office. >> Uh yes. >> What time did you arrive there? probably somewhere close to midnight, maybe just a little bit before midnight of the 11th. >> What happened next? >> So, we met several other investigators, agents, and detectives there um along with some other prosecutors. There were some federal prosecutors as well that were present. Um and from there, we we began uh kind of making plans, determining how to handle the situation there. Did you you mentioned the reason you went down there was you had been told that an individual wanted to turn themselves in. >> That's correct. >> Did you observe that individual? >> I did. >> And where was that person at the time? >> So when we arrived um we went into the the room that we were in. It was one of the their office the cubicles there. uh on the the wall there was a TV a television monitor where I have viewed an individual on that screen that was sitting in one of the the soft interview rooms. Um that room was equipped with audio video recording uh device and so I I observed him on that screen at that time. >> Uh were you aware or did you become aware what time that individual arrived at Washington County Sheriff's Office? I was told he arrived there about 900 p.m. that evening. >> And was he with anybody else? >> He had been Yeah, he'd come there with his parents and a family friend. >> Did you speak with this individual that we've been talking about? >> Yes, I did. >> Did you get his name? >> Yes, we obtained his name and date of birth. >> What was his name? >> Tyler Robinson. Did he tell you that himself? >> Uh, he did. >> You mentioned other individuals came there with him. Um, and then you also said that you had kind of coordinated with the team of of law enforcement officers that were there. Were those other individuals spoken with by law enforcement? >> They were. who or I guess how how did that happen? Who was who was spoken to first of of the other individuals? >> Uh so Tyler's mother was interviewed by uh SBI agent Green and FBI agent Cox. Um and then kind of simultaneously his father was being interviewed by FBI agent Terry and FBI agent Smith. Um and also at that time uh the family friend Mike Mitchell was interviewed by um other agents as well. >> And you said that this was these interviews were being conducted simultaneously. >> Uh yes. Were you part of um the interview with either of Tyler's parents? >> Uh yes. Yes. Myself and Agent Fulier. Did I misspe earlier? Myself and agent Ful interviewed the mother. >> All right. Let's let's make sure the record's clear on that. So, Agent Fulier, what agency is is he with? >> Uh with FBI. >> And yourself interviewed Tyler's mother? >> Yes, that's correct. >> Um I just want to make sure the record's clear. Who interviewed Tyler's father? >> Yeah, I think I might have misspoke. It was Agent Hol Green, agent Cox that met with his father. >> And then who spoke with family friend Mike Mitchell? >> down in St. George, Washington County Sheriff's Office. Was Mr. Robinson detained at that time? >> Yes, he was. >> Uh, was he formally arrested at that time? >> Yeah. following after all the in resort completed when we talked to everybody um that he was formally arrested at that time >> and I'm going to come back to that in a second. Um well I excuse me where did the arrest take place? uh at the >> And what date did that happen on? >> Uh would have been September 12th. Um was about >> All right. Okay, I want to show just on your screen, not for public yet, what's been marked for identification as states exhibit 15. Let me know when [snorts] Uh before I ask you about that, did you have an opportunity to you you stated that you observed Mr. Robinson um at Washington County Sheriff's Office. Is that right? >> Yes, that's correct. >> Your honor, could I have a moment with Miss Hunt? May I have a moment with Miss Hunt? >> You may. >> You're just going to do the redacted version. >> Thank you. [snorts] That may happen a couple more times as we go through exhibits because of agreements and disagreements that we have. >> Thank you for the heads up. >> At Washington County Sheriff's Office where you initially observed Mr. Robinson, uh you stated that he was in a room. Is that room equipped with video recording? >> Yes, it is. >> Is that standard practice for a facility like that to have video recording in such a room? >> Yes. Very, very common. Have you reviewed that video? >> I have. >> And in your review of that video, does it fairly and accurately depict Mr. Robinson at that that time? >> It does. >> Um, you see on your screen what's been marked as states exhibit 15. Do you recognize that? >> I do. >> What is that? >> That's the interview room in which um Mr. Robinson was was se seated and waiting. >> State moves to admit exhibit 15, >> Miss Hunt, and and the other two steps. What's your request? >> Oh, uh, we would ask to admit it into evidence. Um we have defense council and I have uh agreed upon uh I guess redaction um of of the video and I would ask to publish it um both to the courtroom and to the uh media. >> Mr. Novak is silent. Correct. Miss Hunt. >> Yes. >> Um yes your honor. Miss Hunt is correct. The state had originally proposed um a longer um image with audio and we've agreed to >> that's correct. >> Yeah. >> So, um we're fine with all three steps as to this exhibit. >> All right. Does the state wish to review this to make sure that what's queued up comports with what you believe? If not, we can move forward. I just want to allow all parties the opportunity to double check. >> Um, let me just confer with my parallegal. it's has no audio so we would like to um admit and publish it at this time. >> All right. State exhibit 15 is admitted pursuant to uh discussion and may be published in the courtroom and may be uh recorded or uh transmitted electronically. Just uh >> and and your honor, of course, this is subject to all of the objections which have been previously reserved in writing and reiterated over the last couple of days. I I assume that we don't need to start over with that today. Thank you. I appreciate that. I note the standing objection by defense as pre previously made. Uh and that objection is overruled and this exhibit is admitted. >> And in this case, it wouldn't be the 1102 issues. It would be the um electronic media coverage of the proceeding. >> Thank you for that clarification, Mr. Nebach. I appreciate that. All right. With that, uh to the media, can you view that screen? Okay. All right. All right. >> And Agent Davis, who are we seeing here? >> That's Tyler Robinson. >> And although we are watching it on video, what is he wearing at this time? >> He's working a dark colored baseball cap with a has like a I believe it's like our maybe the Herie symbol on it. Like a white symbol on front. It's a burgundy short sleeve shirt with no graphics. It's uh blue jeans and gray and white tennis shoes. I believe they're Converse style tennis shoes. >> Thank you. Was Was Mr. Robinson You stated that he was arrested uh in the early hours of September 12th? Is that right? >> Yes, that's correct. >> Did he remain in Washington County Sheriff's Office or was he taken somewhere else? No, he was transported from there to the Utah County Jail. >> Prior to being transported to the Utah County Jail, um was any I guess personal property taken from him, clothing, anything like that? >> The only thing that was so prior to like our arriving to the St. George to the county sheriff's office, um his cell phone was was seized and taken from his person. Um, but that was the only thing that was taken from him at that time. >> After he was transported to Utah County jail, was any personal it were any personal items taken from him? >> Uh, yes, they were. >> And what were those? Uh after a search warrant was was granted, his clothing was was recovered along with buckle swabs to collect his DNA and uh major case prints, which is fingerprints, palm prints, pretty much the entire hand. Those are all collected from him. >> And sorry, you may have already stated what time when did he arrive in in Utah County? Uh we we arrived at the Utah County Jail about 7:00 a.m. on the 12th, September 12th, and he was formally booked in at about 8 8:00 a.m. of that that morning. And then I was the booking officer. >> What does it mean to be the booking officer? Um I uh filled out the necessary paperwork essentially with the with the jail um which which gives the the individuals personal identification of the charges the probable cause statement and then it's signed and and submitted to the system. >> All right. I want to talk a bit about search warrants. Some of the search warrants that were um executed in this case as part of the investigation. Were search warrants obtained specifically for areas in southern Utah? >> Yes, they were. >> And obviously, do not give me exact addresses, but generally for what locations? >> It was the residence of Tyler Robinson and the residents of his parents. >> Were those warrants executed? >> They were. >> By whom? >> Uh, the residence of of Tyler Robinson was was a team uh led by Sergeant Fabina uh with SBI along with the Utah State Crime Lab. and the residence of his parents was a team led by the FBI, their evidence response team. >> Are you aware of what date or dates, if applicable, those warrants were executed? >> Yeah. Uh September 12th. Um I believe Tyler's residence, they started the search war on about 8:00 in the morning and then his parents residence, they started about 400 p.m. on this of September 12th. So, to be clear, you've stated who was um involved in executing those warrants. Were you physically present for the execution of either of those warrants? >> No, I was not. >> Are you aware of whether Mr. Robinson lived with anyone else at that residence at the time? >> Yes. >> Uh do you know who that was? >> And we [snorts] won't get too into it right now. We'll cover this with Sergeant Fomina, but did you receive information from officers involved in those execution of those warrants about what, if anything, had been found? >> All right. Turning to another area as as part of this investigation. You have previously mentioned that a family friend came in initially um with uh the Robinsons. Um who was that family friend? >> His name was Mike Mitchell. And who is he in relation to the Robinsons? >> So he's a family friend, a close a good family friend. >> And what was his involvement here? >> So he helped facilitate um working with Tyler and his parents um with the sheriff's department to for Tyler to turn himself in. >> And I believe you mentioned previously that law enforcement conducted an interview with Mr. Mitchell. >> They did. >> Remind us when that interview occurred. So, that was the early morning hours of September 12th at the Washington County uh Washington County Sheriff's Department. >> And I know you've already stated, but remind me who was present for that interview. >> That one was Agent Terry and Agent Smith. >> What agencies are they with? >> Uh Terry's with uh SBI and Smith is with FBI. Are you aware if a second uh interaction or statement was collected from Mr. Mitchell? >> Yes, it was. >> When did that happen? >> It was March 31st of this year. >> Who was present at that time? >> Uh it was Ryan McBride, um Chad Grunander, Kimberly Derler, and Agent Chris Terry with SBI. >> You mentioned Ryan McBride, Chad Grunander, and Kimberly Derler. What office do they work for? uh the Utah County Attorney's Office. >> And you mentioned Agent Chris Terry. >> Yes. >> So you were not present for this collection of this statement? >> No, I was not. >> Have you communicated with agent Chris Terry about how this happened? >> Yes, I have. >> How did this happen? >> So all those individuals met with uh Mike Mitchell at was the St. George well was at the St. George court office court house courthouse there. Um they met and and discussed briefly just could kind of talk generally about the situation. Uh from there Mr. Mitchell was given a handwritten 1102 paper statement and he left the room went into a separate office by himself was there for about an hour where he hand u hand wrote a statement filled the statement out. When that was complete he came back into the room where the others were waiting and provided that 112 statement to them. We've heard quite a bit a lot quite a bit about 11:02 statements. Sounds like there's an official form that is used. >> Um what's present on that form if you know? >> There's an administrator warning given on those forms that states that the information you're giving is true and accurate to the best of your knowledge. Um that any false statement that is is given or may be given would be uh punishable by a class A misdemeanor. Aside from that being written on the form, are you aware if this admonition was discussed with Mr. Mitchell? >> It was. >> Do you know by whom? >> Yeah, Ryan McBride provided that admonition to him. >> And you stated that Mr. Mitchell then went into a separate room for about an hour and wrote his statement down. >> Correct. >> Did anyone, including prosecutors or law enforcement, direct him what to say? >> Foundation. Objection. Personal knowledge. >> Would you like to respond? Hunt? Um, I can I can lay a little more foundation. >> All right. So, I'll sustain the objection for now and she's Miss Hunt is moving forward with laying more foundation. >> You discussed with agent Chris Terry about how this statement was obtained. >> Yes. >> Uh, did he mention anything to you about anyone directing Mr. Mitchell about what to say or what to include in the form? >> No. I spoke to him personally and review >> I'm going to show you uh what's been marked for identification Let me know when you see that on your screen. >> Okay, I see it. >> What is that? >> Uh this is the written 1102 statement that uh was provided by Mr. Mike Mitchell. Your honor, may I have a minute with Miss Hunt? The same promise. >> Okay. >> All right. >> And how do you know that? >> I've I've reviewed it. Um I reviewed it in its original as soon as it came to us. I've I've seen it prior. So, >> and uh Kimberly, if I can have you Sorry, judge. If I can just have a moment. I apologize, your honor. I I misspoke. It's not 14.1. It's just uh exhibit 14. >> Okay. >> So, if we can place that again on the Yes. >> And sorry, we had been scrolling through that. Do you do you recognize that? >> I do. >> Um, does it depict Is it fair and accurate um from what you remember? >> Yeah, with the exception of the redactions. Yes, it's it's fair and accurate. >> And judge, I'll make a record. Um, defense council and I have stipulated on the redactions that are present. Um, I would move for its admission, uh, states exhibit 14 into evidence, but we do not wish to publish it either to the courtroom gallery or the or the cameras. >> All right. Could I have a copy of it? What what I have is is the unredacted version. Uh, so I want to review it before I I If I may approach. >> You may. Right. I've had a chance to review states exhibit 14 and noting the standing objections by defense uh concerning 11:02. uh the court accepts into evidence states exhibit 14 and pursuant to the parties uh is not published. >> Thank you judge. >> All right. I want to move on to another topic. You've stated that you've been present for the duration as the case agent um of the preliminary hearing. Is that right? >> Yes. >> We heard testimony yesterday about uh turning to the the scene at UVU. um on September 10th that a bullet was found on a roof. Do you remember that testimony? >> I do. >> Um do you have knowledge about what that about that bullet? What that is about? >> What roof was that bullet found on? Uh, I believe it was the Well, it was found on the computer science building on the roof um on the far east side of the of the roof of the building itself. >> How do you know that it was found there? >> Uh, I reviewed the agent's report that that found that, documented it, and collected it. >> What agent was that? >> It was agent Ben Schneider with SBI. >> Are you aware of where of where the computer science building is on campus? >> Yes. is >> can you explain generally where that is located? >> Yeah, from where the Losi building is. It's a building directly kind of south and east of there from the Losi. >> Southeast from the Losi building. Where is it in connection to the uh auditorium section that we've been talking about where Mr. Kirk was stationed? >> Uh it's east of there. East and a little bit east and a little bit south. Yeah, mostly east. Would there have been from that roof of the computer science building, to your knowledge, would there be have been a line of sight to Mr. Kirk's tent? >> No, not according to the agent uh agent Ben Schneider, there was not a line of sight from there to where the tent was um where Mr. Kirk was. >> Did you learn from agent Snyder what caliber that bullet was? >> Yes, I did. >> And what was that? >> It was a 223 caliber. >> What is a live round? It's a It's a round that had not been fired. Um, so it still had the projectile and as a fully functional uh bullet with, you know, ammunition with the bullet. >> Did you learn if this 223 bullet found on top of the computer science building was a live round? >> Yes. >> And how do you know that? >> Uh, was it was still intact, still had the um the primer had not been uh was it was not dented. That one fired. still had the the bullet projectile on the end and still sealed. >> Did you observe this bullet personally or is this information you're getting from Agent Snider? >> From Agent Ben Schneider. [clears throat] >> All right, turning to a different topic and judge, I'm aware that there are going to be some objections um about this that we'll have to address, but I just want to lay a little bit of foundation first before we get there. Are you you you've mentioned him already. Um are you familiar with an individual named Lance Twigs? >> Yes, I am. >> And who is he in in regards to this investigation? >> He's the roommate of Tyler Robinson. >> Was he interviewed as part of this investigation? >> He was. >> How many times? >> Two times. >> When was the first time? The first time was the early morning hours of September 12th and that occurred at St. George Police Department. >> So, we've heard of several people uh coming in and being spoken with at Washington County Sheriff's Office. >> Correct. >> Mr. Twigs was spoken with at St. George PD. >> Correct. >> Do you know who was present for that interview? It was FBI agents Larson uh and agent Ling. >> Are you aware of Mr. Twig's buckle swab was taken at that time? >> Uh I don't recall happening there. I think I believe it happened later. I'd have to but it did it did occur. That was obtained from him. >> Okay. But you're not sure if it happened on the 12th. I I don't recall if it was there or later at his residence, but >> but ultimately he a buckle swab was obtained from Mr. Twigs. >> Yes, it was. >> Do you know if his phone was taken from him? >> It was. >> When did that happen? >> So, it was during that interview with FBI at St. Georgia Police Department. They conducted an interview of him um and then he provided his phone. He did it voluntarily also. uh provided it um to to those agents >> and that would have been on September 12th, 2025. >> Uh correct. >> You mentioned a second interview of Mr. Twix. >> Uh there was a second interview. Yes. >> When did that take place? >> Uh April 20th of this year. >> Where was that? >> Uh happened at the Utah County Attorney's Office. >> Who was present at that second interview? >> Uh was Mr. Twigs with his attorney uh Jill Catrill. It was Lauren Hunt, Sam Ped with uh the US Attorney's Office, Ryan McBride, Sergeant El Scholes, well now it's Lieutenant El Schills and myself. We've talked about two interviews of Mr. Twigs. One on the morning of September 12th, 2025 2nd on April 20th, 2026. Are you aware if both of those interviews were recorded? >> They were. Have you reviewed those recordings? >> I have. >> Before Mr. Twig's interview on April 20th, 2026. Well, first let me ask you this. Are you aware of what use immunity means? >> Uh yes. >> What does it mean? It's it's a letter of the the use of immunity is essentially giving the individual uh during the limited time of of their statement they're given uh that immunity from statements that are made in regard to an incident. Um but it does not preclude them from prosecution um from evidence that would be known or found then or later outside of that interview. It just gives them that limited immunity during the type of during the type of the interview. >> Okay. So, for any statements made during the interview, they're given immunity for that, but they're not generally prohibited from being uh potentially prosecuted outside of that interview. Is that fair? >> That's my understanding. Yes. >> Was Mr. Twigs given use immunity? >> Yes, he was. >> By what offices? the Utah County Attorney's Office as well as the United States Attorney's Office. >> You mentioned that both of Mr. Twig's interviews were recorded. Have you reviewed those recordings? >> Yes, I have. >> Do they fairly and accurately depict those interviews? >> Yes, they do. [snorts] >> We've talked about 11:02 statements. We've talked about a form and you you talked about that there's an admonition on there that that warns that if false statements are given pursuant to 11:02 then that person may be subject to a class A misdemeanor. Is that fair? >> Yes, that's correct. >> Was a similar admonition given to Mr. Twigs during his second or before his second interview on April 20th, 2026? >> Yes, it was. >> By whom? by Ryan McBride with the Utah County Attorney's Office. >> And again, you were present for that interview? >> I was. >> Did Mr. Twigs say that he understood that admonition? >> He did. Yep. Yes. >> Was he told that the April 20th, 2026 interview was being taken in lie of him having to come and testify at the preliminary hearing? >> Yes, it was. Yes, he was. >> All right. Judge, I'm aware that Defense Council has objections to this recorded 11:02. I think now um is probably a good time to address them. Uh but I do have I guess I understand that they are suggesting redactions to the video. I have some procedural objections first and if your honor sustains those, I think it may make the substance of the statements or or the objections or the redactions that defense is proposing moot. Uh so I'm I'm wondering if your honor will entertain my responses uh procedurally first before we get into the substance of what defense is objecting to. Does that make sense? >> Yes. But and if you want to move it because right now nothing's before me. >> Yes. Um well what I want to move so defense is proposed about a day and a half ago. They created a transcript. Um Mr. Novak has uh profered this earlier to your honor. On April and and I'll give you a little more proper on April 28th, 2026, the Utah County Attorney's Office provided this recorded 1102 statement of Mr. Twigs to defense council. Uh they have acknowledged the receipt and mentioned the recorded statement at previous hearings. In fact, they even filed a brief um that your honor has decided about whether 11:02 can be applicable to Mr. Twigs at this at this hearing, which your honor has ruled upon. Monday at about 400 p.m., defense council sent us a transcript that was prepared by defense, the defense team, and it had significant redactions that they were suggesting. Um it it's about a 21page transcript and their suggested redactions are approximately 11 pages of it. In total, redactions appear on 16 of the 21 pages. Um my procedural objections to this are that this is essentially by surprise. Uh we were already a day uh into the preliminary hearing. Um, defense council had been aware since at least April 28th, 2026 when the recorded 112 of Mr. Twigs was provided to them that that is how we intended to proceed. And like I said, they had already briefed the 1102 issue as it relates to Mr. Twigs. At that time, they did not raise any uh objections to the substance of it or propose any reductions that they wished. Um and and yeah, frankly, it's it's by surprise and it's at this point disrupting the hearing. It's not I I did mention that defense prepared a transcript of this recorded interview. How the state intended to present it and how we have given it in discovery to defense is it's a video um audio and and visual. making redactions to that is not as simple as a transcript where you can just, you know, block out sections of the text. Um, so it's far more complicated than that to to edit or redact portions of the the video at this time. So, we would red uh object procedurally uh basically on on the the timeliness of it. Um that they had an opportunity to make these objections if if they had them at the time when the 1102 issue in regards to Lance Twigs was was briefed and decided by your honor. They did not do that or raise the issue at this time. Um and so we would object just procedurally on on those grounds. Additionally, um the remedy requested, which I'm I'm assuming is that we make redactions to the video or present it as a transcript rather than a video, is disproportionate. Um even assuming if there are isolated statements that the court would not ultimately consider. Again, as Mr. McBride pointed out and as your honor has has stated throughout this hearing, this is a preliminary hearing to the court. It's not to the jury. Uh the court is fully capable of disregarding any statement it determines exceeds the proper scope. Um as Mr. Ride cited this this morning several cases gave your honor that that authority and and presumption that judges are able to um basically make the difference between uh what's what's admissible evidence and and disregard what may not be at a preliminary hearing or or even at a bench trial. Uh State voms is one of those cases. If your honor wants the citation again, I'm happy to give it. Um State V Featherson is another one. That one is 781 P2D424. Uh, State V Hanigan is another one, 2014 UT app 165 and State V Rose Cray 2024 UT AP 128. And those cases all stand for the notion that essentially judges and this is to quote from Rose Crayons, judges are not subject to many of the same concerns about prejudices and improper influences as jurors. And so again, procedurally, the remedy asking us to now in the middle of a a week-long preliminary hearing of which everyone was aware, edit or or alter or redact portions of this video recording 11:02, that remedy is disproportionate. Um, if there are any potentially objectionable statements within that, your honor has the ability to to disregard those. Um, and so we would prefer not to get into the substance and and argue each statement line by line. Um, and and we would prefer to just move for its admission and have the court use its its discretion as a judge to take what's proper versus improper, disregard anything it might the the court might find improper. If we would like to move into substantive objections, uh, then I we're happy to. But um if the court can rule on those procedural objections first, it may make any substantive objections moot. >> All right. So you're moving into evidence states exhibit 16. >> Yes. >> And as it relates to publication, what is your request? So, judge, we believe and and I believe this has been discussed uh before on the record that the state is in agreement that the media should not have the ability to uh handle or replicate uh certain exhibits because it's video. Mr. Twigs is shown certain exhibits. So, we would agree that this should not be captured by cameras and and projected uh by the media outside of the courtroom. Uh but we would like at least the audio and and maybe even the video within the the courtroom itself to be captured is the state's position. >> Right. I want to make sure I understand. So your request is that the video not be projected and captured by the video camera, but the video and audio is played in the courtroom and the audio is able to be transmitted just not the video via the camera. Is that my understanding? >> Correct. That's the state's position. in regards to this exhibit is in the as states exhibit 16. Is there any portion of that recorded statement that occurred before the 1102 warning was given to Mr. Twix. not that we are presenting today. >> Okay. All right. Turning to the defense. Mr. Novak. >> Thank you. >> Thank you, M. >> So, I'm going to address first, your honor, the what Ms. Hunt describes as the procedural issues um with our proposed redactions. Um many many weeks ago the state lodged their anticipated exhibits with the court and then the court said I'm not going to review them. I'm in fact I'm returning them. I'm sorry. The court said that the court is returning the exhibits to the state. So um there is no moment to make objections to an exhibit which the court is not uh inclined to entertain until the moment as the court has said many times until the exhibit is presented. And so what we have done is we have given the state it's only a 20page trans We have given the state a transcript we prepared ahead of time so that the state could make sure that the transcript is accurate. The state has never said that the transcript is inaccurate. So, I'm going to assume for purposes of the moment that the state doesn't have any dispute that the transcript is an accurate transcription of Mr. Twig's recorded 1102 interview. There's no surprise here. There's been all of Monday evening, all of Tuesday, this morning. Um, in fact, the state informed me yesterday morning that they don't agree to the redactions. So, there's no surprise here. And we're actually doing exactly what the court signaled should be done, which is at the time an exhibit This wouldn't be as much of a problem if Ms. Hunt had just said to your honor, um, following Archeletta and in light of the electronic coverage of this proceeding and in light of Mr. Robinson's right to a fair trial, the court will consider those portions of the exhibit which are admissible and the court will not consider those portions which it determines are not admissible, but it will not be broadcast either audio or video. the categories of objections that we have to this video recording I'm going to talk about a little bit so that the court understands why Ms. Hunt's suggestion that the entirety of an exhibit, which may not be admissible under the rules of evidence at a preliminary hearing, be played in open court and that the audio be captured by um electronic media and broadcast because of our client's right to a fair trial. That's a problem. And I don't want to sound flippant, but this is actually the Ryan McBride 1102. The vast majority of this video is Mr. McBride testifying and Mr. Twigs agreeing. If we were in a courtroom, it would be a leading examination virtually from start to finish. I don't want to say that every single statement by Mr. Pri, Mr. Twigs is just an affirmation of what Mr. McBride says, but the vast majority of it is. There are also portions of this 11:02 where Mr. McBride is basically testifying as to what other exhibits that this court will see say. So, there are two other exhibits that this court will be asked to receive into evidence today, which are um text messages and uh group chat. I'm just going to distinguish between the two. Um, and so this 11:02 statement is basically Mr. McBride saying, "And then the chat says this, and then the chat says that, and then the chat says this." He's basically testifying as to what the exhibits say. So, in some ways, the 11:02, those portions of the 1102 violate the best evidence rule because I have no doubt that those two things that I just talked about are going to be presented to the court by the state. >> [snorts] >> Um, there are also portions of this 1102 which are not relevant and really implicate Mr. Twig's privacy rights. And I am not Mr. Twig's counsel. As Miss Hunt said, he has counsel. I don't know if he's um well I don't want to speculate but it's not relevant. There are portions of it which are not relevant and there are portions of it which I think especially to be broadcast um implicate other other privacy I'm not trying to create complications and I'm definitely not trying to take the state by surprise because I went to great lengths to provide the state with a transcript with a proposed redacted transcript. And in fact, today we prepared to make it easier on the state and actually on your honor. Um, instead of having redactions with big black sections, we we highlighted them instead. So if the court wants to look at our proposed um redactions, the court can do that without having to compare two documents. The other thing I want to say is that if the court did order ultimately that portions of it would be broadcast in any way in the courtroom, outside the courtroom. Um we're not trying to change the state's exhibit from a video with audio to a transcript. The transcript is really being used as a tool to address the inadmissible portions of the video because there's no way to communicate to the court efficiently which portions of a of a video we think are not admissible. It's much easier to do it on paper. So, the transcript is just a tool. Um, we have the ability right here in this courthouse to cut the video into the pieces that the court deems admissible. Mr. Ellis tells me it would probably take a couple hours at the most. So maybe the maybe that's not also not a concern. There's no delay associated with this in light of the fact that it's Wednesday and this court is going to conclude this hearing by Friday afternoon. So, I've gone beyond the procedural issues. I've addressed that. We think portions of it are not admissible. There's no surprise. We've followed exactly what the court has signaled, which is I don't want to hear about exhibits until we're in the middle of the hearing, and I don't want to hear objections about it until we're in the middle of the hearing. The the litigation over whether section 1102 is constitutional under Mr. um Robinson's federal due process rights and the other rights that were addressed. That litigation does not mean that we should have brought to the court proposed redactions to an exhibit in a hearing which hasn't started yet in a hearing in which the state had until 20 minutes ago even profered an exhibit. So I understand that the state wants to avoid the substance by trying to short circuit this with a procedural argument. Um, and Miss Hunt is is a is a is a very excellent advoc advocate for her client. But the reason why the state is going to the procedural issue is because the state well because the exhibit contains significant content that is not admissible even in a preliminary hearing. So, I'm going to stop now, but I do want to go back and say that if the court concluded that only your honor was going to review this exhibit and the Archeletta rule would be extended to this exhibit, including that it's not then I think that we have a different path toward the efficient resolution of this issue. >> All right. >> Does that make sense, your honor? I believe I understand what you're saying. So, let me respond to you before I go to Miss Hunt. So, going to your first point in regards to what this court's position and not looking at the exhibits that doesn't preclude any party from filing a motion in lemonade, which is anticipated before any moved into evidence. Typically, motions and lemon are used by either side on anticipated exhibits or that may come into court and and that allows prelitigation. So I I want to clarify that the court statement like I'm I'm not looking at the exhibits is far different than what the parties choose to do and file in regards to a motion in lemonade. Um but going to the I I I really want to go to what you've talked about. What specific objections are you making? I I want to make sure the the rule the the request is clear so I can rule specifically on that. What exactly? I I I I think I understand some of them, but I I wish for you to articulate what are your objections to states exhibit 16 >> significant. We could do it line. We could do it line by line or page by page. I know we have had hearings in this matter where the court has wanted to look at transcripts line by line, word by word. We're prepared to do that. But I'm going to give the court categories. >> Thank you. without referring to specific portions spec there are many portions of it which are not the statement of Mr. Twigs there on video as to what other exhibits say and Mr. took is saying, "Yeah, that's what it says." Yeah, that's what it says. Yeah, that's what it says. >> I apologize. I don't mean to interrupt you. I just want to >> categorize it and put it in a box. So, what is the ex what what um objection under the rules of evidence is that specifically? What What What are you boxing that as? >> Well, first of all, it's council testifying. Second of all, it's hearsay. It's Mr. McBride's outofc court statements as to what an exhibit says. There's a best evidence rule, which I I'm sure the court is familiar with, which is that the best evidence of what an exhibit says is the exhibit. >> So, we may have a little bit of a cart before the horse here. >> Sure. >> Because there are two exhibits that I'm very confident coming. Um, there are portions which are not relevant. There are portions which um I believe are inadmissible when the court balances under 403 the probitative value versus the the prejuditial value especially in light of the um manner in which this hearing is being um broadcast. So, we have improper testimony by council. We have the best evidence rule, which I think also includes hearsay. We have relevance issues, and we have 403 issues. And so, but what I'm saying is that those are all things that this court can manage as Miss Hunt and Mr. bride have taught us today in terms of the court's um preliminary assessments, the court's role as a magistrate and the Archeletta rules that allow this court to decide certain exhibits will not be viewed or heard by the public because it interferes with Mr. Robinson's right to a fair trial. >> Okay. >> Thank you. And I do I do I heard exactly what the court said about the unlimited situation, but I I do want to just say this and I hope this is taken in the right spirit. If this court had said to us, I'm returning the exhibits, but if any party has any objections to any exhibits, I want to hear about that before the hearing, we certainly would have done so. And I think that um it's probably for council um a suggestion about how future hearings where there are many or complex exhibits because there will be such hearings should be handled which is we can do in limones before the hearing begins so that the court knows these exhibits there are no disputes these exhibits there are disputes these these are the disputes and we don't have to waste um courtroom time uh bringing the court up to speed on what those concerns are. It can all be briefed ahead of time and we're happy to do that. >> Thank you. Well, going to the last point, let me be clear on the record that I I don't intend to interfere with the duties of either party. Is not my job to say, well, here's what you should do, here's what you shouldn't do. I I'm independent. I I'm not team prosecution, team defense, and so I I will not dictate how you run your case. Obviously, if it it goes against certain rules, constitutional rights, statutes, case law, I will weigh in. But I I never want to put my finger on say, "Well, Mr. Novak, here's how what I think you should do." Or to the state, Mr. McBride, here's what I think you should do. that goes outside my role and I will not deviate from my role, which is not to interfere with the business of counsel and and and I'm fortunate as a a district court judge that I have very experienced attorneys who I have watched and have done an excellent job and you're experienced as I stated on on I believe in the uh Prohawk Viche, highly experienced attorneys on defense, highly experienced attorneys on prosecution and So, I do not want to get into the business of saying here's what you should do. I I I I hear what you're saying, but I want to be clear from from this point on in case there's any ambiguity. The court does not need to go into the business of dictating what you feel is in the best interest of your client to the state what is in the best interest of your client. I I I stay clear of that, but I appreciate the point you're making and I hope that clarifies any ambiguity that may exist. >> I there was no ambiguity. I don't think that what I um was conceptualizing puts the court's finger on on anybody's scales. I think it's really about case management. And now I think we're moving pretty far away from the admissibility of this 1102 statement. And we could have a conversation later if the court wants to. It's up to the court about case management issues. But um as I said before, if I say anything else, I'm going to be repeating myself. So I'm just going to stop. >> All right. Thank you, Mr. Novak. >> Yes. Thank you, Judge. And as I as I tried to parse out, obviously we have procedural objections uh which may depending on how the court rules make the substantive objections moot or or unnecessary. But, um, to Mr. Novak's point about this not being by surprise. Yes, to be fair, he did send me a a transcript with proposed redactions Monday, I believe, at about 4:00 p.m. It was not accompanied by any objections that he actually had. So, we had to compare the transcripts and to to our best guess come up with what the substantive objections may be. I am ready to respond to what I believe they may be. And obviously he's now given categories. Uh but I think we're now at the point where the court needs to exercise its um ability and obligation under rule 104A to decide a preliminary question about whether evidence is admissible. Uh but before we do that, because to argue the substantive objections, I I want to actually get into the substance of it. And so I think we need to consider whether this is going to be a closed hearing. Um, and then probably, I don't know, I'm assuming the media attorneys will want to weigh into that because I do want to quote specific sections to be able to advocate uh for my position, state's position on this. I think we will need to get into the meat of what is actually stated here. Um, and so I think the court needs to decide if this is going to be an open or a closed hearing and hear from the the media or any other parties that need to weigh in on that. >> All right. Anything further from the >> Only that Miss Hunt invited the media to comment on what the court is going to do. And as this as your honor knows from conducting jury trials and other types of proceedings, sidebars are not for the public. They're not for the public in real time and they're not for the public subsequently. It is very standard that sidebar proceedings where information is only to be exchanged between council for the parties and the court are conducted at sidebar so that witnesses, jurors, members of the public don't hear about those things. And so we are assuming that if the court wants to do this in what we would call sidebar or in a closed hearing that the transcript of that is going to remain at least temporarily sealed until these proceedings conclude or the court conducts some uh closer analysis on a on a topic by topic basis. So, um, that's what sidebars are about. Whether it's done in a closed hearing or in an open hearing through whisper, um, the public, potential witnesses, jurors, potential jurors don't get to hear what the court decides needs to be um, addressed um, in a manner which protects the party's rights. Your honor, if I may, Michael Jud on a request to close a court proceeding isn't a sidebar, and calling it a sidebar doesn't make it one. Um, the court knows the rules at this point. Any attempt to close a hearing requires that the court engage in some sort of hearing about that closure that is open to the public. It can't be done in whisper. uh that can't be done um with the cameras off. There are occasions where a court may find it necessary to to put some portion of some hearing um behind closed doors, but the conversation about whether or not that happens, of course, has to take part place in public. Um I don't want to belabor any of the points that are made. I think the court recognizes the interests at issue here and what the media's position would likely be on these. I'd like to find common ground. It appears to be a significant piece of common ground here is that everybody seems to believe that the video interview that it's at issue here is very important and that of course makes people want to uh invoke protections, invoke closures from the media's perspective, from the public's perspective, of course that pushes the other direction. There may be moments of this preliminary hearing. There may be exhibits that do not present significant pillars of support for the decision that the court will ultimately be called on to make as a gatekeeper and as a magistrate. It seems to me I I haven't seen this video. The public hasn't seen this video. It seems to me that this appears likely to be one of those pillars on which the state intends to base its case and on which the court's ultimate decision will likely rest. That council's in favor of access, in favor of publication, in favor of allowing the public to see the work that the court is [clears throat] doing and why it's doing it. I recognize Archeletta has been invoked. We respect and understand Archeletta respectfully. Archeletta, at least part of its reasoning is based on something very different than putting something on a screen. In Archealetta, there was a request to say, "Hey, is there a murder weapon? Are there crime scene photos? Can we come handle those?" Right? Can we can we look at them? Can we turn them over in our hands? And part of the reason in Archeletta was we're worried about that will impact the the quality of the evidence and the obligation everybody has to keep that evidence reliable and safe. Putting something on the screen doesn't present any of those sorts of risks. Um because this is so important. So this interview appears to be such a critical piece of the case being presented here in this courtroom today. Um the media's position is that the it should be shown on the screen and that the public should be allowed to see it as well. To the extent there's any sort of compromise at all. the one that is presented by the state which would allow the public to monitor and oversee and understand and comprehend and assist with the work being done by the court. Then something [clears throat] like the state has provided which is we would put it allow the audio to play. If there is some sort of it sounds to me like what the state is saying is there's some sort of witness privacy issue that would be served by turning that video off. um maximalist advocates on behalf of the media would always want that video to be on. But I recognize that that that may be a reasonable compromise. But the idea of shutting the courtroom down to argue about closure or keeping this uh recording from the people in the courtroom who are allowed here, the victim representatives, the media representatives, the public itself is simply a non-starter. I believe under the rules that govern this proceeding. We ask the court to keep this as open as possible. And if there is any sort of narrowing of the public's right of access here, that it be done only in the narrowest way possible. Um, and that it be based only upon recognized interests. And finally, I would say, your honor, to the extent that I hear any sort of real counterinterest at all, it continues to be a fair trial interest. We take that important. We take that we recognize that its importance. We take it seriously. The court has also over and over again recognized what the right approach to that is is to say there are mechanisms in place under algier to say we do an expanded vuadir we do a jury questionnaire we can handle those counter interests and on behalf of the media and the public I'd ask that the court handle this dispute that way >> thank you any further comment by any of >> all right Mr. Novak >> only um that I want to make an additional assertion about why the court should handle this exhibit um pursuant to Archeletta. Um but I want to make that um argument a sidebar because the whole point is to protect my client's right to a fair trial. And by making part of this argument in open court, I'm uh it's it's a self-defeating exercise. So when the court resolves whether it will hear from us at Sidebar, we're prepared to do that. >> All right. The the issue is sidebar is public because the transcript's open. So it's just because the parties request sidebar and and and the the court invokes the white noise that doesn't make it private. it simply obscures the noise in the courtroom because that goes in the transcript unless it's a closed hearing. So then >> we would like to have a very brief closed hearing to lodge another objection about the publication of this of of any portion of this exhibit be well of certain portions of this exhibit beyond your honor's eyes. >> That's what I'm saying. >> Thank you. All right. Uh right now what we're going to go ahead and do and uh what I want to do is I want to look at uh the redactions that you're proposing uh and uh take a look at that and it's also a perfect time to take a break because we need to bring in the monitor potentially for future exhibits. So that's going to give us our 15 minutes. I want to review that uh so I can bring be brought up to speed uh because the transcript from what I understand is just a transcript with suggestions of what defense wants to redact. Is that correct? >> That's correct your honor. And so what I would suggest well if this works for the court is we will email to the court staff something we've already given the state which is the proposed redacted version of the transcript. I understand that the state wants a video to be presented as evidence. We can get there if the court concludes there should be redactions. Um, it's not redacted through blackout. It's highlighted. So, the highlights are the proposed defense redactions and Mr. Ellis can make sure that your court staff receive that and it can either be emailed to you or printed out, whatever works. Any objections, Miss Hunt, for the court reviewing the proposed redactions in order to bring the court up to speed at whatever argument the court may entertain? >> No, judge, but I I want to clarify for the record and for myself. Um, is the court ruling on my procedural objections and and I want to reserve the right to make my my substantive arguments uh using what's actually in in the exhibit. So being able to quote directly from it, knowing that if it's not a closed hearing, those portions of of what I'm saying are are going to be on the record and and and broadcast. >> So the court is not making a ruling right now. We're just going to take a break and then we're going to come back on the record. But on the break, I'm trying to maximize the time and that's why I'm asking, is there any objection to me reviewing what it sounds like defense has sent you, which is just the transcript highlighting what they're anticipating redacting? I just want to bring myself up to speed. So on the next step when I make my ruling, the court is ready to go. Okay. >> And maximizing the time because we also want to put up a monitor. So there's like three things we can accomplish in the space of 15. >> Fair enough. The state has no objection to that. >> All right. Mr. Nvac, if you wouldn't mind uh sending what you sent to the state to the court for review, and we will take a 15minute break. It is now let's go a little bit longer just I want to make sure everything is in place. Let's come back at uh 3:00 uh and and we'll uh proceed from there. seated. Noting the presence of council and all parties. I appreciate your patience. Sometimes it takes time to save time and so that was the intent of this court uh in addressing what is before this court as it relates to states exhibit 16 council. In this time I've taken time to look at the video and you also reviewing what Mr. Novak submitted uh the uh redactions uh requested and reviewing All right. I I want to address uh the objections before me. Uh and starting with Mr. Novak made a hearsay objection as it relates to Mr. McBride and the court agrees. It is hearsay. Uh at the same time, um I'm only going to consider Mr. McBride's statements to provide context for the things that Lance Twigs says and for their effects on Lance Twigs. And as such, the hearsayer objection as it relates to the statements of Mr. McBride Turning to relevance uh as it relates to states exhibit 16 [snorts] and in and I agree in part and disagree in part as it relates to this objection. So there are portions of the transcript or I say transcript but what I really mean is states exhibit 16 and and I appreciate the transcript. I found that to be helpful. It's a lot faster than trying to like scroll. And so I appreciate that being provided. It was helpful to the court. And and to be fair, I found it to be a true and accurate representation of the actual recording. So did did I listen to every word and compare it? No. But from what I reviewed, I did not find any inconsistencies just to put it on the record. So there's no misunderstanding. Uh but there are portions of the transcript uh states exhibit 16 which relevance is still not clear to me. Uh however uh as the magistrate I am able to distinguish between what is relevant to a probable cause determination and what is not. uh and what I take into consideration when I make my ultimate decision about probable cause, I will not take into consideration what is not relevant. So that is a constant balancing and evaluation I'm making throughout this this hearing and after this hearing, my intent is to review everything again uh to be thorough. This is not a case where I'm going to be shooting from the hip uh and making that determination because this is an important determination. I will take the necessary time as as is required and is as necessary to ensure that the constitutional rights of all parties are upheld. Uh, so as I'm making determinations, where I land is pages 19 and 20 of the transcript as it relates to state exhibit 16 may contain irrelevant information, but I will reserve whether I consider to those portions uh until I've heard the rest of the state's evidence. Therefore, as it relates to relevance, Now turning to uh the other objection which is rule 403 prejudice. As I am acting as a magistrate, I do not have the same concerns that my decision will be influenced by undue prejudice as that of a jury. Therefore, for purposes of admissibility, the defendant's objection is overruled. Even so, there are portions of this transcript and again states exhibit 16 that may not be admissible at trial and whose relevance I have not yet determined. In the abundance of caution and to protect the jury pool, the potential jury pool from hearing potentially inadmissible evidence, I'm ordering that the audio cannot be published in the courtroom or on camera from page 19, timestamp 3255 until timestamp 3548. In other words, the state may publish the audio for all portions of the interview other than that one portion. And and when I say audio, I mean audio and video. Uh so both I recognize there's approximately only one minute after 3548. Uh the state can fast forward to that point for it's an approximate 1 minute and 12 seconds or may take the time to redact the video as they see fit. So I where I'm landing today is up until until that page 19 uh 3255 that portion I am ruling is admissible and may be published again if the state wishes that last minute and 12 seconds uh to be played. Um they can either take the time tonight to redact what the court is not going to allow to be published and and I wish to differentiate. I'm considering it all, but for publication purposes, that portion is not going to be permitted to be played in the courtroom. >> Honor, would you state those times again that you are ordering not to be published? I've got 3255 to 3548. >> Right. >> Those are the two timestamps for that. And I hope that's helpful as as both parties are trying to review on the transcript and and states exhibit 16. >> And that's from 3255 to 3548. >> Right. >> Okay. Thank you. >> Is is not publishable in the courtroom or on uh to be broadcast. Finally, I want to recognize both parties wanted the benefit of the record to be more specific in their arguments uh concerning uh their objections. So, if those arguments pertain to timestep 3255 through timestep 3548, I'm willing to allow you to do that in a closed hearing. Uh please be mindful of the time and keep your argument succinct. With that in mind, do the parties have any arguments they feel I have not considered in my ruling that require a closed hearing? [clears throat] Um, [clears throat] yes, your honor. And so I'm just going to tell the court what I think the the general nature of that is without getting into the details because I do think a closed hearing is appropriate. Um there are okay setting aside the 1102 issue and objections. There are statements in this video by Mr. Twigs attributed to Mr. Robinson. >> Okay. Mr. Robinson said there are two other exhibits which I again I've said before I'm confident the state will offer which Mr. Twigs says in this video, those are statements by Mr. Robinson. Okay, I will acknowledge that separate and apart from 11:02, the statements of a party opponent are admissible if relevant. In fact, they're not even hearsay, right? They're excluded from the hearsay rule. But the question is whether statements of Mr. Robinson of the nature that I'm referring to >> Mhm. >> can be published not considered by the court but published without violating Mr. Robinson's 14th amendment due process rights and it is our view as we have said in our earlier papers that the answer is no publication especially on um in the way this proceeding is being published would violate Mr. Robinson's due process rights under the 14th amendment. We previously cited and the reason why I'm saying this again is not to reiterate something just because if you say it twice um it means something different but because my colleagues have suggested that maybe my argument earlier was not clear enough and so I want to make sure it is clear so that the court makes a decision based on um the arguments of counsel. The United States Supreme Court said in ST's est versus Texas 381US 532 the following in Redau versus Louisiana and that's r au this court constructed a rule that the televising of a defendant in the act of confessing to a crime was inherently invalid under the due process clause of the 14th amendment even without a showing of prejudice or a demonstration of the nexus between the televised confession and the trial. I am not calling the statements of Mr. Robinson confessions, but that is what the state And so there are portions of this exhibit and the other exhibits that I've referred to which implicate Mr. Robinson's right not to have what the state calls a confession televised. This court has authorized the televising and there are reporters in this courtroom who will go outside and speak on what we used to call television. That opinion was from the 60s. Now, we have other forms of technology, but I'm just going to use what the Supreme Court says because it's the Supreme Court. So, we are very concerned that the publication beyond this court's eyes of what the violates Mr. Robinson's due process rights right here and now today. And I know that we said that before in the litigation, but now we're we're exhibit specific. If I haven't been clear about the argument, I want to make sure I'm clear about it because the court's decision to to allow this video to be televised and the other two exhibits to be shown to the camera in the back of the courtroom is exactly what the Supreme Court says violates the 14th Amendment. So, and I appreciate that clarity and and perhaps and again if you want to go into closed hearing, we can do so or if you want to refer to the pages. So, I want to know exactly what you're referring to whether it's in that uh 3255 through 3548 which is being excluded or is it is it >> is not it is earlier and it's also the two other anticipated exhibits. So, we may as well deal with all of it at the same time. It's probably easier to do it in a closed proceeding because nobody has to be obtuse. I don't have to be obtuse in order to protect my client's rights. >> No, I appreciate that. And and it actually prompts I in order for me to get to that, I I do want to ask the state uh are you intending to introduce the text messages as an exhibit in this proceeding, the preliminary hearing? >> Yes, judge. We will be uh attempting to and and moving for the admission of the text thread, the discord thread and I think and the the note that is referenced in Mr. Twigs 1102. >> All right. And let me take one step at a time just for clarity. And again, Mr. Novak, I really do appreciate you being so precise. is helping me parse it out so we can address it because it's important and I recognize that you're advocating for your client and so I want to give it its due time. The text messages from my understanding and either side weigh in my understanding that those were released to the public >> Judge, if I may, they were not released in their entirety. portions of them were placed into the charging document, the information uh that supported in part the charges that the state has filed. Uh we did not put the entirety of them in. Um and now we wish to publish more of them than were included in the charging document. >> I see. I for some reason I thought it was part of an exhibit for a motion, but uh Mr. Novak, I'm not sure if that's uh ringing any bells. I I I'm I'm aware of the issue that the court is commenting on. I think the state needs to account for its decision to publish text messages that directly implicate the Supreme Court law that we're talking about. And I'm not don't want to pretend that I can anticipate what the court's concerns that doesn't cure republication on television of what the state will call a confession in this proceeding. So, in other words, this is not like, oh, the cat's out of the bag or the barn doors open. This is another opportunity to violate Mr. Robinson's constitutional rights. And I'm not at all suggesting that somebody is intending to do that. Certainly not the court. And I'm confident that the state's council would not never intend to do that. But that would be the consequence of further televising what the state refers to as um previously referred to as confessions and certainly would refer to here in this proceeding as confessions. We are so acknowledging that they are We have not filed anything in this case that publicizes, the text messages, the discord chat, the note which Miss Hunt is mentioning. And now that Ms. Hunt has said that yes, we want this note to be presented into evidence and the court knows what this note is because the courts now watch the video. That's another piece of the same um problem. So, this is all simplified by the court being extra cautious about Mr. Robinson's constitutional rights, considering these exhibits to the extent the court deems that they're admissible and portions of them are relevant. um and not further televising them in this proceeding in a manner which we think we think is inconsistent with what the Supreme Court said in ST's v Texas. >> All right. I I appreciate that. Mr. Novak, Miss Hunt, would you like to respond because I I I I understand what Mr. Novak saying and and there may be a 403 issue as well as it relates to this and and I'm not going to pretend to read your mind but um because I can't do that. All right, Miss Hunt. >> Um just to clarify for the record in the court, the the state's position is that we would like the audio played. The audio may be captured by the cameras um in the state's position, but we never intended to uh visually put them on the monitors such that cameras can capture them and and you know pause or or get the actual exhibits substances of the exhibits. I believe that was the media's position if I if I remember correctly is that they want everything um auto audio and visually displayed. But the state's position is just we just want the audio played. >> So I'm just focused on 16 right now. >> Okay. Yes. And that's the state's position with with regards to exhibit 16. All right. So, help me understand what what's the difference if it the audio is played or the video's played on what the court is identifying is well, first of all, 16 is admitted. So, that threshold has been met, but we're dealing with the publication in regards to what is publicized. Um, because this is going to Mr. Novak's argument about publicizing that is different than the court simply reviewing it for in its own privacy. I don't want to misstate your argument, but I believe that was one of the distinctions you made. >> The distinction that Ms. Hunt is drawing is, I think, what people call a distinction without a difference. It doesn't matter whether it's audio or video, and it doesn't matter whether it's on a television or on the internet or on the radio. It's going to be broadcast. And so it doesn't really matter whether it's audio or video. And it's actually not Mr. Robinson's video, it's Mr. Twig's video. And when the court mentioned 403, yes, I think the court did accurately read my mind, which is fine with me, but it's it's it's unfair prejudice of a constitutional dimension, and 403 is a rule of evidence. >> All right. So, Miss Hunt, as it relates to that uh publication, help me understand whether it's it's it's it's audio or video. What's the difference there? Help me understand that. >> I disagree that it's a distinction without a difference. Um, as we've discussed prior in this hearing, UCG JA sub2 subj states that exhibits are presumed to be public court records and it does give the court discretion to regulate access when necessary to protect the integrity of the exhibit or ensure a fair trial. So I I do want to recognize that but that discretion should be exercised narrowly as as we've talked about before with publication uh regarding this this case. Um what the state is proposing we believe is is a narrowly tailored accommodation. We don't want to display the full exhibits. Obviously the it within states exhibit 16 the video of Lance Twigs he is shown and then it can be seen uh exhibits that the state will then uh in the future move to admit 16.1 16.2 the text threads the discord threads. So, we're thinking that what if if it's displayed visually, what the cameras will be able to do is pause that, duplicate them, replicate them, essentially have access to those exhibits. Um, what we're trying to do and and and and maybe they, you know, can do the same thing with the I'm sure Mr. Novak will say they'll do the same thing with audio. Um, but the hearing the tone, the context, all of that, that's why the state chose to do we could have done a written 1102 statement from Mr. Twigs. We chose to do as as is allowed by 11:02. We we chose to do a recording uh because that's how the state is choosing to present this evidence. We believe that the appearance of of or the the tone, the context um hearing Mr. twigs actually talk and and talk through these exhibits, talk through his experience is is a meaningful way of presenting our evidence. And so that's the difference we're seeing. >> I see. >> Um I obviously it's up to the court's discretion on how publication is to be made here. We've made our arguments generally about that issue and we'll we'll submit it to the court. Our our prime issue is that the the exhibits be admitted into the record, that the court consider them as part of the preliminary hearing standard and bind over. Uh but we'll submit it to the court on on publication, but that's the state's position. >> All right, Mr. Novak. >> I learned a long time ago that when >> that when the opposing party says, "Your honor, we're submitting on it," there's a suggestion that maybe the court is going to make a ruling which doesn't require more evidence, more argument from me. But I am going to say that it is fair for Miss Hunt to say, "Your honor, we wanted the court to see the witness and hear the witness so that the court could make reliability determinations because as your honor has said, that's really up to you." That's a different issue from the constitutional consequences publishing what the state will call a confession. Now, I've changed the word from television to electronically publishing because I'm trying to be in the 21st century. And the Supreme Court used that the citation to state standards for what is or is not a public document are not the issue. We have a there's a constitutional issue here. And I think that the court has already heard from me at least three times about what we think the court should do here. It's a preliminary hearing. It's not a jury trial. There may be a jury trial in the future at which we have to vo dire on yet another issue which is whether potential jurors were exposed to media um replaying of what the state called a confession. That's exactly what was structural error. There was no prejudice question in Redau versus Louisiana. And that's why in SDS v. Texas, the Supreme Court said, "We have a rule. You can't televise what a prosecutor calls a confession before trial." Thank you. >> All right. Thank you. I I appreciate both parties uh advocating and arguing. It It's All right. So in taking in consideration the argument which again I appreciate the parties articulating uh the further edits that the court is going to require uh to be redacted starting on page eight and I apologize I don't have a time stamp uh starting on Sorry, it's starting on page seven. Well, let's let's let's start starting Well, Starting on page six, after 6 minutes Going to 20 minutes and 27. 7 seconds uh for reasons such as 403 uh under rule 403. And again, this is this is simply for publication. This is not taking out what the court will consider. The court is considering the entirety of states exhibit 16, but the court is trying to take a narrow approach in recognizing and balancing transparency with constitutional rights and doing so in such a manner that it is meaningful the court's duty as a magistrate under All right. >> State those times again, your honor. or or 2027 just so until 2027. and then the pre and then what the core indicated previously from 3255 until 3548. And I apologize, Judge. Just to clarify, these timestamps that you just gave, the two 3255 to 3548 and 656 to 2027, those are just not being published, but they have been admitted for your honor's consideration. >> Right. So, so kind of going through my three-step process. Exhibit 16 is an entirety, not the transcript, but the because the exhibit is not the transcript. The exhibit is the video that has been admitted in its entirety for the court's uh determination as it relates to this case. So what I'm talking about here is this is only what will be published in the courtroom and on uh and captured by the video um is is is the differentiation. So what's being redacted for the lack of a better word or cut out is what's going to be published in the courtroom, not what the court's going to consider. The court's considering it in its entirety. There's the court's not going to redact anything in here. It's going to make its own determinations regards to re uh uh uh everything that Mr. Novak noted. I I I'm taking that in consideration and making those determinations, which the court will do again because it it this is not something you do watch once and and then make your decision. This this requires analysis and the court is committed to doing that. But hopefully that gives you an idea of where as it relates to publication. >> Yes. Thank you. >> Thank you, your honor. I I know how much time the court's already dedicated to considering this and I appreciate the additional time being afforded the media. There's just one additional thing that two additional things that I wanted to to mention to the court. I I do want to reiterate the point that I made before about the fact that if this is in fact a key consideration that the court is entering into um when trying to make the determination that it is going to make at the conclusion of this hearing, Utah case law, including the Archeletta case that the defense has referred to over and over again stresses that the same considerations that urge for access to a preliminary hearing itself, allowing the uh proceedings to be televised, allowing people to be in in the courtroom also advocate for access to documents on which the court bases its ruling. Disclosing documents used this is from Archaltta uh on page 238 to 239. Disclosing documents used by courts in reaching a decision in a preliminary hearing will discourage decisions based on improper means and will promote conscientious performance by all officials involved in the criminal justice system. Therefore, providing a presumptive right of access to documents filed in connection with preliminary hearings can play a significant positive role in the functioning of that process. Do want to reiterate the belief that providing access to the documents on which the court bases its proceeding bases its decision in this proceeding is critical. The second thing that I do want to mention because the court referred to it before is the fact that without going into the content of this the um interview itself I believe I understand from the arguments being made today that many of these references are to text messages. Again the um public doesn't yet have access to that. Um, but I do believe that the documents filed in this case, including the information that was filed days after this contain many, if not all of the text messages that are now at issue that are going to be kept from the public in this proceeding. I know the court in previous occasions has said if this information is in the public already, I shouldn't be in the business of trying to now keep that from the public for two reasons. One, it's already out there. Second, it suggests to the public that something else lurked in there, something else is being kept from them that isn't. And so, not only does it run counter to the idea that um of transparency generally, but it seems to suggest that there is something embedded in there that the public doesn't already have access to when the court denies access to materials in a proceeding like this that are already public. And so I I again recognizing how much time the court has already invested in this, I I I believe it's wise and I believe it would help avoid potentially making a mistake that the court later on then thought, "Oh, I I wish someone had brought that to my attention to check whether or not any of the materials that are now cons under consideration to be withheld from the public are actually already in the public's domain because they are part of the information and probable cause statements that were filed at the outset of this case." That's all I have here, your honor. >> Thank you. And all rights, council, if you would like to state your name. >> Your honor, Jeffrey Nyman, on behalf of the Kirk family. Uh, I've been very hesitant to speak up at these proceedings. We understand it's the state, the defense, and the judge. You're all doing your job. Uh, but I feel as if we need to. I want to be clear as to what the Kirk's family's position is on all of this. The Kirk family believes strongly that if the evidence is being admitted in this preliminary hearing, it should be made public for the world to see. No redactions. This court has tools at its exposure, tools at its disposal to make sure the defendant receives a fair trial. You'll use them if you find that you need to. That's it, your honor. to not be transparent here, to not be open, to not let the world see what happened will create doubt and distrust in the judicial system. And that's not what anybody wants. That's not what any of us believe should happen here. And we'd ask the court to consider the position of the family in making its ultimate decision. Thank you. Anything further before I issue my final ruling to clarify what's been stated just so it's clear to all parties? Mr. Novak and Yes. We just want to say that we totally respect um Miss Kirk's position in this situation. um, media council's suggestion that because the state in our view improperly disclosed what the state is going to call a confession in charging documents does not mean that this court can just let it go. This has been the most transparent criminal proceeding I've ever been involved in and I am sure it will continue to be transparent. But there are some things which the Supreme Court has said the public has to wait for the jury trial in order to hear evidence because the number one preeminent question is how do we protect Mr. Robinson's right to a fair trial? And with all due respect to the Kirk family and with all due respect to the media and with all due respect to the public, the number one concern in this proceeding is Mr. Robinson's right to a fair trial, which means a jury which has not been exposed before it's in this courtroom under this court's supervision with this court's guidance. um to pre-trial information of this nature. >> All right. I I do have a follow-up question for you. Uh Mr. Novak, returning to the ST's case, it's an important point. I want to make sure I fully understand it before I issue my final ruling. Uh my understanding is ST cited to a dissenting opinion in in Reu >> Reau. Yes, >> Redau. My French is bad. >> Mine too. um that constructed a rule that publicizing a confession runs a foul of the 14th amendment that didn't appear to be the holding. It was the opinion talked about coerced confessions being put out to the public. Could you cite to SDS that that supports >> the the portion that the court is looking at is exactly what I would read to the court. It says we constructed a rule. Now I understand there's a parenthesis there where it refers to a dissenting opinion in redo because I think that was a case where there were multiple opinions and we all understand how complicated it is to figure out what comes out of a Supreme Court opinion when there are multiple concurring and dissenting opinions. But what the court says in Estes is that televising, I'm going to paraphrase a little bit, televising what the prosecution calls a confession de facto violates a defendant's 14th amendment right to due process without a prejudice analysis, without even looking at what happened in the trial visav that earlier televised analysis. So yes, we could go down a you know what lawyers like to do. We could go down the rabbit hole of what were all the different opinions in redau and why is Estie citing to a dissenting justice. But what Estie said is we constructed a rule. It's not a reference to a dissenting opinion. And I think when the Supreme Court says we have a rule, we should just take it at face value that that's the rule. I understand what's in parenthesis there is a little confusing but what the Supreme Court is saying in Estes is we The Estie's opinion was written by There was a concurrence by Chief Justice Warren, Mr. Justice Douglas, Mr. Justice Goldberg and then there were dissents by justices Stewart, Black, Brennan, and White. So, we could spend some time um destruct deconstructing that, but it's a five4 opinion of the United States Supreme Court saying what rule they adopted in Rudau versus Louisiana. And I would have to sit down with the with the cases just like your honor probably is wishing it had time to do right now. The court had time to do right now. But it's a five-4 opinion of the United States Supreme Court saying what Rudau what the holding in Rau is. >> Thank you. All right. I appreciate that guidance, Mr. Novak. So taking in consideration all the factors I believe I said starting at 6 minutes 20 minutes and 27 seconds. Does that comport what I previously said? >> Yes. until 3548. Does that comport with what I previously said? >> Yes. >> All right. and then from 3548 to the remainder 37 can be included. So there is that gap but that can be included and part of the reason in responding to the media and and it's an important point and to uh the representative for um victim representative Erica Kirk is I recognize the importance of transparency. I also recognize the importance of balancing constitutional rights and it is a fine line. One of the reasons why uh for these edits includes under my analysis under 403 going to the last part uh needlessly presenting cumulative evidence and based off the representation of the state that the text messages may be introduced. The court is ruling that this may be revisited in case that doesn't happen. But uh to to throw back the curtain, uh much of this is the text messages to be clear. And again, all of this is going to be considered by the court. I'm balancing all these competing rules, constitutional rights as well as transparency. And sometimes it is an an imperfect balancing act. But I'm trying to act in the interest of justice in making this balancing act and for transparency to actually be transparent. And so that is the ruling of the court as it relates to states exhibit 16. Turning to the state, do you wish to make the edits as uh identified by the court and play it tomorrow to publish it or do you wish to go a different route? I think just to make sure that we are um completely in line with the court's ruling, I think we would like to take the evening to make sure the edits are all correct and and start out tomorrow by playing it. >> And if you wouldn't mind when you have that final copy, if you could send it to defense to review to us to form just to make sure it comports with the timestamps that the court has identified. And I know this has been a long conversation, but I just want to make sure everyone understands, okay, this is what the court said and and we're all on the same page. Uh that that what is before that's being presented reflects that. So not downing the state, simply allowing everyone to review it before it is introduced into court. >> Absolutely. We will do that. >> All right. On this issue, anything further >> as to this exhibit? No. All right. Well, Miss Hunt, uh, let us move forward. Being that you indicated that you're going to, uh, prepare this for tomorrow, how would we like to proceed >> If we have just a moment, And I know the state's engaged, but if someone could send a copy of that to the court after it's been reviewed by council so the court can review it to double check that it comports with what I said to make sure that it reflects what I was intending to reflect. That way we can save time as well. Judge, it's the state's position that that we close for today. Uh come back once those edits have been made. Um we can start tomorrow with that and and proceed from there. >> All right. Um >> Uh no, your honor. I I do want to point out that there is one additional exhibit which we think the state will offer through Mr. Davis. I'm sorry, Agent Davis. Yes, >> agent Davis as to which we proposed redactions. It's five screenshots of Mr. Twigs's phone. It's not a 25page transcript. Um, I'm not suggesting that we should argue about that now, but I'm just um putting making the court aware of that. It's a much simpler um exercise. It's not nearly as complicated. Um I think that's the only one where we proposed other redactions. Um but the publication question still remains as to all of the um asserted statements by Mr. Robinson. So it's according to Mr. Twigs, according to the text messages, according to the discord and the note. All of that is part of the SDS's issue. And I just want the court to be aware of that. Um, and I understand it's hard because the court doesn't have all those exhibits in front of it, but I just want the court to understand. Um, I think that all of the argument that we've had with respect to the transcript sort of lays the foundation for the legal issues, but it's going to come up with respect to those exhibits as well. And I the the comments that the court made about 403, I understand it with respect to relevance and admissibility, but I'm not sure how 403 applies to the televising of [snorts] statements that the prosecution will call confessions. So maybe that's something >> it was a different prong that I was addressing. >> Good. Okay. the the duplicative part or cumulative part as it relates to the text messages and that's why reserved that if it doesn't come in then it can be revisited to the redactions that's made public >> for evidentiary purposes as opposed to for publication purposes. >> Right. >> Understood. >> Right. >> But if if the court wants to recess, we have no problem with that. And so just going to your point and and again trying to maximize our our efficiency given that your arguments which you articulated well would you would you mind perhaps preparing preparing a memorandum or a a short brief that can help us move forward because I want to look at the in detail what you're citing to I it's difficult on the fly to jump into SDS and go to a portion and I want to give your argument full consideration. And it's a suggestion if you can. I know you're extremely busy, but it may be helpful if you choose to. If you choose not to, I will certainly allow the time to for argument. I just want to make sure I'm fully up to speed as opposed to trying to shoot from the hip there. >> When the court says, I'd like to know which exhibits and what the legal issues are ahead of time so that at 9:00 a.m. the court has had an opportunity to already had an opportunity to understand what's coming. We're happy to do that. and I'll try to get something to the court by 8 a.m. >> I appreciate that. Thank you, Mr. Novak. >> And if you wouldn't mind obviously uh sending a copy to the state as well, exparte. All right. >> Is the court referring to a formal filing? No, just if you >> a bench memo, >> a bench memo and that all sides can have a take a look at just to prepare again in in in in light of efficiency and trying to maximize our time and give as much weight and time to addressing these issues fully as opposed to trying to hit them at the moment and going doing a deep dive when when it is it's a little bit more difficult. So >> happy to do so >> if you'd like to. I I would I I I would entertain that to the state. If you want to confer and talk to see where you are and want to do the same, certainly you are entitled to do so as well. >> I think we we plan on doing that. Thank you, Judge. >> All right. All right. Is there anything else for this this afternoon? >> Not from the state. >> All right. To defense. >> No. Thank you very much for your time, your honor. >> All right. Cory will be in recess until 9:00 tomorrow morning.