Court Proceeding — LIVE: UT v. Tyler Robinson, Hearing | Charlie Kirk Assassination

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Court Proceeding — LIVE: UT v. Tyler Robinson, Hearing | Charlie Kirk Assassination
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=0J6e4vlCX5Y) — verbatim ASR, not a certified court transcript.

One app, one platform for [music] you to do all your messaging, all your communication with your team. >> Connect Team made our forms and checklists so much easier. It just really Novak, Michael Bert, Stacy Visser here on behalf of Mr. Robinson. >> Good afternoon. Good afternoon to you, council. Mr. Robinson, good afternoon as well. All right. Before we turn to the defense's motion, the court would like to address address four preliminary matters. First, in regards to the transcript from the December 11th hearing, council, I would appreciate your input regarding the transcript from the December hearing. The transcript has been designated as private and copies have been are available to the parties. Consistent with the court's prior handling of the October 24th transcript, the court intends to release a redacted version of that hear that transcript. Uh, but I want to get your input uh >> Judge, we we intended to do that as well. Um, we we haven't stipulated, we haven't come together to stipulate on a version of that transcript that should be redacted. We certainly can do that and we're happy to do that. >> Thank you, Mr. McBride. We will meet and confer with Mr. McBride and his colleagues on that. >> All right. How much time is needed by >> Two weeks. >> That's fine. Couple weeks. >> All right. A couple of weeks and then we can address that. Uh, next I want to turn to um address media coverage and place on the record the potential consequences of any willful violation of the court's December 23rd, 2025 standing decorum order. Under Utah Code section 78B-6-310, if the court finds a person guilty of contempt, the court may impose a fine of up to $1,000, order incarceration in the county jail for up to 30 days or both. Any alleged violation will be carefully evaluated and the court will impose only those sanctions which are appropriate and proportional under circumstance under the circumstances. The court will make specific findings on the record before imposing any sanction. In addition, the court may impose the following remedial measures if warranted. First, immediate suspension of video transmission of the hearing with proceedings continuing on audio only basis for the proceeding where the violation occurred and disqualification if necessary and nar narrowly tailored of the news organization that filled that filed the request in order for electronic media coverage of court proceedings for the hearing in which the violation occurred. from providing pool camera operator services in this matter where the court determines that such a measure is required to ensure compliance with the standing decorum order and to protect the rights of the parties. Council will be allowed to provide their input before the court makes any final determination regarding sanctions. I want to emphasize that these measures are not intended to have a chilling effect on open and transparent courts or on responsible news gathering. And the court remains fully committed to the presumption of open proceedings under applicable rule. >> Have you seen anything like this at the drugstore? No, you haven't. Look, Optic is making the most beautiful readers. This is Laurel in champagne. I'm wearing the progressive lens, which means it's clear up top. I've got magnification in the bottom only where I need it. So, if I'm looking at my cell phone or reading a book, I'm going to be looking down. If I'm driving a car or watching TV, I don't have to suddenly put my glasses on to read something because >> it's not my intention to cause you any embarrassment or discomfort. I simply want to ensure that the guidelines for today's proceedings are clear. Uh Mr. Yberg, during today's hearing, what is your primary role? >> To provide video coverage of the proceedings for the public. >> All right. Have you read the December 23rd, 2025 standing decorum order? >> Yes, sir. >> Do you understand the guidelines as they relate to your responsibilities today? >> I do. Do you need any additional time to review the December 23rd, 2025 standing decorum order or any time to reposition the camera to ensure full compliance with those guidelines? >> Do I need more time? I'm sorry. Was that the question? >> Do do you need more time to review the decorum order? And I'll I'll pause there because that was a compound question. Sorry about that. >> No, I I am I am I have read it. I fully understand it. I'm good to go. >> All right. To the second part. Do you need any additional time to reposition the camera to ensure full compliance with those guidelines? >> No, I think we're in a good position now. >> All right. Mr. Uleberg, do you anticipate any difficulties complying with the December 23rd, 2025 standing to quorum order? >> I do not anticipate any problems. >> All right. And is there anything that the court can clarify to assist you? >> Uh, no. I think we're good to go, sir. >> All right. Thank you, Mr. Yulberg. Thank you. Uh before I let you go, I'll turn to councel uh based off the questions asked to turn to you if you have any input or questions. >> Nothing from the state. >> Thank you. >> No, your honor. >> All right. All right. And um the court, I appreciate your cooperation and it's my hope that we all do our very best today together. >> Absolutely. Thank you. >> Thank you. And and finally, before we turn to the the issue, the motion before the court to the state, could you please provide a brief update on the status of discovery disclosure? Um, yes, your honor, we don't I don't have the percentage of materials that we have that have been disclosed, but I think we're above 90% at this point. Um, there still is discovery coming in. There reports and so forth coming in from uh various entities. Um so I think we're moving expeditiously towards uh completing at least this initial uh batch of discovery. Of course discovery will be ongoing probably for the duration of the proceeding. Uh but we have provided um nearly all of what we have to date. >> All right. And to defense any input? >> Not at this time your honor. >> Thank you Miss Netor. All right. Thank you, councel, for your patience as the court covered those uh preliminary issues. Let's turn to the defense's motion to disqualify the Utah County Attorney's Office. Miss Nester, or sorry, Mr. Novak. >> That's fine, your honor. That's okay. We actually have some preliminary um things we want to discuss with respect to the posture of this motion. And I also think at some point the court needs to decide the hearing on this motion remains open and becomes closed. So I'm going to >> absolutely >> keep bear that in mind in terms of my and when I say we, I mean Mr. Robinson's council. Um, we fully expected that what the Utah County attorneys would do is refer the motion to the attorney general's office so that the Utah County attorneys are not in the position of representing their own interests as potentially conflicted attorneys and a potentially conflicted office and representing the state's interest in the prosecution. um we heard informally from the state's attorneys that they were preparing a response and when it would be provided and then what we received and again I'm bearing in mind that we're in a open hearing at the moment was a brief where I'm going to say the unsworn representations of two attorneys from that office are basically integrated into points and authorities attorneys. We don't have affidavit from Mr. Gray or from the the other attorney. We have argument. Um, we noted in our reply that we were surprised, um, that's in footnote two at page four, were representing themselves in connection with a motion alleging that they have a conflict of interest and that the state was not being represented through the attorney general's office. Um, we did some further research on this and and you know we have some some case law that we can provide the court. suspect that the court is very familiar with the fact just from its own experience that in appropriate circumstances the attorney general's office can either one represent the state in what was a county prosecution with respect to a disqualification motion so that the boundaries are clear or if uh there's an ultimate finding or conclusion that there's a conflict of interest take over the prosecution or assign it to another county. So, um we're we're very concerned that we're getting off on the wrong foot, if I can use that metaphor, because officers of the court who are both representing their own interests in continuing to be the prosecutors in this case. and representing the state in a situation where there should be what I would call at least temporarily conflict council. I'm not sure that's the term the attorney general uses um representing uh the state's interests. Um there's a Supreme Court decision which is called state v Jimenez Jim M which I can provide citation for. Um, there are subsequent cases, but it's pretty clear that this is the type of a case. I'm not saying that Jimenez compels that action, but it seems to me to strongly suggest that where there is a showing. Uh, I'm not I'm not sure what the what the threshold showing is. I I don't want to say it's a primmaaccia showing or a reasonable concern, but where there's a a showing that there very well may be a conflict of interest um that hasn't been handled by a particular state attorney's county attorney's office that um what's in the the interest of of the litigation of the public of the parties is for the attorney general to um to step in and the the citation for state vimemenzes if I may um is 588 P2707. Of course I can provide the court with this court actually has the authority to direct the attorney general to step in, not for the entire case at this stage. That's not what we're saying is necessary because that requires a finding of a conflict of interest, but to step in or to designate somebody to step in for the purposes of litigating um that motion. >> Okay. Um, and so we're very concerned that even going forward with an evidentiary hearing where members of the Utah County Attorney's Office are both litigating as representatives of the state in a prosecution and essentially defending their own um propriety of proceeding in this prosecution um is is problematic. As far as being prepared, we're of course prepared to go forward with an evidentiary hearing, but we think that it's improvident and we think that what the court should do if the Utah County attorneys um have not or don't if given the opportunity do this on their own is that the court should designate the attorney general's office for the purpose of litigating this motion. Um, the court might ask hypothetically the question, has the Utah County Attorney's Office conferred with the attorney general about this particular question? Um, and we are not in the dark because as Miss Ms. Netor will tell the court as an officer of the court, she's spoken with the attorney general's office and they have not been consulted about this. Okay. So, this is a motion to disqualify a county attorney's office based on what we believe is a material significant conflict of interest that it's clear they haven't even tried to address by way of a screening, which of course is a term of art, because their position is no screening was necessary. We're not even here to discuss whether the way in which a particular attorney was screened off was adequate. Their position as their own advocates is we've already decided no screening is necessary. So what we've been told by the attorney general's office, Miss Netor can represent to the court exactly what she was told, but basically that there has not been consultation. And while that is Mr. Gray's prerogative. We think it's wrong and we think that this court needs to exercise its authority to intervene and say in this case for this kind of a motion, the court needs to hear from a representative of the state who does not even appear to have a conflict of interest. So, um, that's our preliminary statement about these issues. And again, I I I hope I've avoided saying anything that should have been said in a closed hearing. I think I was pretty good about that. Um, so that's where we are. um before we even get into the litigation of it. And I don't want to be formalistic and I'm certainly not trying to be confrontational, but I think actually what the court what we think the court should do is the court should strike the Utah County Attorney's response to our motion and direct the attorney general to take up the responsibility for responding to our motion in whichever way. clearly non-conlicted attorneys representing the state think they should how it should be responded to and if I've muddled I always say this your honor if I've muddled anything or confused anything please say so and I'll and I'll try to clarify >> thank you I do have some questions for you as it relates to this I I wish to consider uh all the authority that you wish to cite to I mean obviously you came into this hearing knowing that this is something you're going to present uh in this court wants to be uh efficient with time but thorough yes >> and not jumping to conclusions. Can you give me all the authority that you wish for me to consider in considering your your request today? >> Yes. And I think what we could also do which maybe would be more helpful to the court is that we could um file a short brief on this particular issue because I will acknowledge that while we were surprised that the brief was filed by the same lawyers who um are alleged to have this conflict of interest. Um it took us a little bit of time to and we wanted to get that filed in time for today's hearing because the court had set the hearing. It took us a little bit of time to think through these issues. So there are Utah authorities. There are authorities from other jurisdictions. There are also ABA guidelines on the prosecutotorial function which we think strongly suggest that there should have been what I'll just call a referral to the attorney general's office for this particular motion. I can stand here and I can give the court case names and numbers and sections from the ABA standards, but it was not our goal to of course put the court on the spot and require the court to, you know, like go back into chambers, think about it for, you know, some pressured period of time and come back out and make a decision. So, if it would benefit the court for us to file something, and I don't mean in a month, I mean very soon, uh, so that the court has thoughtfully presented points and authorities. Um, we're happy we're happy to do that. Um, as far as I know, the only people who've traveled out of town for this hearing are Mr. Burton and myself. So, I'm thinking about the convenience of witnesses and the court and council. Um, it's important that we that we do this in a way where the court has the opportunity to um make a thoughtful reason decision as your honor always says. So that's that would be our proposal is that if um the court is open to receiving authorities that we um recess this hearing for you know whatever whatever meets the court's schedule whether it's a week or two weeks or a few days and we can provide the court with something and we'll come back but we we do think this is a serious issue because I think the question of who litigates this issue on behalf of the state is in itself wrapped up in this conflict. and we want everybody to get this right. >> Thank you. >> Once. >> My question for you is knowing this, why didn't you file a motion prior to today's hearing knowing that this the court would be in this position based off your request to prepare the court, prepare opposing parties, and to be efficient in our use of time. I'm trying to understand I I understand what you're saying and I understand that things evolve, but I I'm trying to understand why that wasn't filed in in advance of the hearing to put the court on notice at the very minimum and just to allow the court to do what the court does. I hear what the court's saying and I think we can take responsibility for not sufficiently presenting the authorities that we think compelled what I've just suggested should happen. We noted in our reply brief that the county attorney should not be representing themselves and that's probably an inadequate message to the court. But we did file a motion to disqualify. And inherent in a motion to disqualify based on the conflict of interest, we we anticipated would be that the state attorneys would seek representation from a clearly non-conlicted appropriate prosecutorial authority which as I've done further research and Mr. Bird and Miss Visser and Miss Nester and I have all done further research literally up until um earlier this morning. We think it's pretty clear um that this court has the authority to make that I'm going to call it a referral. I think it's an order referring it to the attorney general um if the state if the Utah County attorneys choose not to do so. And the additional information which we did receive today, >> I'll just tell you that was that there had not been um any communication between the county attorneys and the attorney general's office concerning this issue. Um so I'll fall on my sword if the court thinks I should be sanctioned for not bringing this up sooner. I I hear the I hear the court. But we are um um we're juggling many aspects of this case all at the same time. Some of which the court is aware of, some of the which the court um uh probably is not aware of, but the court can imagine. >> No, and I appreciate that. It's not the intent to sanction you. I understand that um issues come up and there's a lot going on and so it the court appreciates your cander and representation today. Uh these these items can involve and so the court is not finding fault with you. It's just hoping that as is as as it requires a lot of time and resources for you and for fellow attorneys and and for the opposing party and for other parties, we just might want to make sure we use make the best use of our time when we're together. Um, >> I hear everything the court is saying. I take it to heart. I understand um what the court's saying and we are cognizant of the time that the court devotes to preparation for these hearings. Um, and uh, so that's that's all I can really say. >> And and and also for Mr. Robinson himself and the victim of representative uh Miss Kirk as well. We we just want to um do our best and I understand and I'm not finding fault with you, sir, or or your team. I just we've all been in court. We all know what happened. So, I understand. I'll turn to the state. Oh, and I'm sorry. Is there anything further that you wish to >> No, like I could provide the court with more citations, but I'm just wondering if that's really the best way to give the court a list of verbal citations. I think with all consideration for um and we probably have yeah with all consideration for um the fact that the court wants to be thorough and careful um and we do as well um we don't want to shoot from the hip but I I I think that we just decided that this was something that we needed to bring to the court's attention in a much more wholesome way um once we understood stood um not only the way this was um developing but you know frankly the way um the Utah Supreme Court, the ABA guidelines um courts of appeals subsequent to state vimenez um and you know the information that we received today from the attorney general's office which isn't a secret. It's just we had a conversation and we learned that there hadn't been any consultation. If there had been consultation and the attorney general had said, "No, we're think we think you're good to go," then that would be different and that's what we learned this morning. >> All right. Well, I'll go ahead and take those authorities right now if you'd like to list them. Court is ready. >> So, the second one would be State V. Robertson, and that is also a Utah case 886 P285. There's the ABA prosecution standards. I would refer the court to section 3.1.7 and 3.2.5. 2.5. Um, and those are, I think, the places to start. >> Is there any Utah rule on point that addresses this issue? >> So, the case of state vimenez, which I referred to, which is the Supreme Court, does actually site a statute. >> Okay. Anything further that you wish for this court to consider at this point in the proceeding as it relates to this issue? >> No. And depending upon the statements of council, we may we may have some response if the court permits it. >> Of course. >> Thank you. Turning to the state, Mr. Gray, >> your honor, I'm not sure why this is coming before us today. Um, if it was such a surprise to them uh more than a week ago, I don't know why they wouldn't at least notify the court. Um, I too represent the state. I'm an elected official constitutionally elected to represent the state. Um, where does this end? Um, I don't know these cases. I I'm very interested to see whether or not um they refer to trials. I know that the attorney uh the Utah attorney general's office um they've done the same thing that we have in rule 11 motions where one council um on the team crossexam or examines uh their boss in fact on the matter. Um, so I just think this is ambush and another stalling tactic to delay these proceedings. There's no reason that they could not have at least filed the motion and asked for uh asked And where does it end? Do we get to respond to their motion to have the attorney general's office respond or or does the attorney general's office have to respond to that one, too? Um, I I'm not Well, anyway, I I've I've stated my um it should have been done far earlier if if that was their ca if that was their claim. And I'm if I could just turn the time over to Ryan in case he has something else. >> Thank you, Mr. Gray. >> Ryan, and excuse me. I you know, this is we're tag teaming this somewhat because it's a surprise uh to us as it is to the court, but um in the in the five minutes I've had to read read Robertson and Jimenez, um which could have been provided to me before this hearing, it looks like those cases don't stand for conflict of interest cases. is there actually does the attorney general's office have have authority to prosecute cases that occur within a um prosecution district or county attorney's jurisdiction and the answer is yes. It's not about taking conflicts from the the few minutes I've had to read those uh this is of course the first time this has been raised to us. Um the defense has known that we were going to respond to this motion for some time. We requested an extension for our filing deadline back in December. The defense agreed to that extension. Um our reply was filed January 5th. Um the defendant's reply was filed thereafter. Um and in that reply that the tone of that reply is um mentions that they thought that perhaps a special prosecutor would be appointed to handle the conflict case. But and the alternative says we'll be able to we we want to subpoena uh witnesses to establish the facts that are laid out in the state's opposition motion a memorandum and that was what we understood was going to happen today. Uh you have a a family member of a prosecutor who has been subpoenaed. Um an affidavit has been supplied to the court. We believe that affidavit is adequate but it wasn't adequate from the defense perspective. So, they subpoenaed that person. Um, prosecutors have been subpoenaed for today's hearing. We have two investigators that have been subpoenaed for today's hearing. Um, and we are ready to go, your honor. Um, I think that the motion or that the request the defense has made assumes that a conflict does exist and that um and that there's uh an inability of the uh party who has been accused of a conflict to defend themselves. And I just don't think that that's true. If there is a conflict, which is the question that this court is to decide, the case will be referred. Until that conflict has been established, the case is properly in the jurisdiction that in the in the jurisdiction that has statutory authority over that offense. And until that conflict has been established, um the Utah County Attorney's Office has this case and can defend its involvement in this case. I got just a moment to review my notes and see if there's other points we want to make on this. Um there is one other point I wanted to make which is the the idea that the case would be referred that alleging a conflict would cause a special prosecutor to be appointed. um that really assumes that there is a that there is a conflict and until that conflict has been has been established there is no duty for the case to be uh referred to another jurisdiction or another special prosecutor to handle and it raises um some of the issues that have been brought up in some of the case law um regarding uh creating or alleging conflicts. Um there's a lot of case law that talks about um how it can be a tactic to uh try and remove cases from one one prosecutor's authority to find a more lenient prosecutor, find a more favorable prosecuting authority that's not going to seek, for example, in this case the death penalty. Um and there's a lot of case law that talks about you can't call opposing counsel as a witness in a case um unless they're absolutely necessary. And the reason is because it can be a a forum shopping effort. And we're concerned with that same kind of um motivation or tactic that could be uh used in this case or other cases like it. Anytime you as opposing counsel, you don't like the offer you're getting, the way the the prosecution is being handled, you allege a conflict of interest and all of a sudden the county attorney's office has to spend $10,000 to hire a special prosecutor just to handle that one issue, regardless of whether or not it's um supported or whether or not a conflict exists. That's a concern we have. Ron, we're ready to go forward today. We think the evidence that will be presented today will um illuminate the issues adequate that your honor can make a decision about whether or not a conflict exists and we don't need to delay this proceeding any further. Um we're confident uh the court will uh see the facts as they are and be able to make that determination. >> Mr. McBride. So, the motion has been made by defense to continue this hearing to allow the filing of a a motion addressing more fully this issue. And to that request, what is the state's reply? >> We object to that to that um motion um to continue or to strike. Uh we asked the court to go forward today. Um we think the motion is untimely. Um the court has or the prosecution has subpoenaed witnesses and uh every delay that happens, the witnesses that we have, we have now family members of the prosecution being subpoenaed. Um these people are ready to move forward and get this out of the way. Longer we delay this, the more anxiety uh that this uh procedure has. >> All right. Thank you, Mr. McBoy. Uh to defense, any response? Um, first I want to say this is not This is not about tactics at all. And this the county attorney's office who informed us back in October that their was a family member of a prosecutor who was present. >> At this point, you're probably not avoiding therapy because of stigma. You're probably avoiding therapy because you've become [music] very good at coping. So good that you stop noticing how heavy everything feels. As a therapist who goes to therapy herself, it's important to remember that your mind and body hold on to every stressor you don't have [music] time to >> tactic. The Utah County Attorney's Office informed us in late October that that we needed to know about this and we informed them. Fine, that's your position. It's not a conflict of interest. We think it is and we intend to litigate it. So, it's not a tactic. It's not something that we've made up out of bull cloth because, like I said, we found a a needle in a haststack. something that they properly brought to our attention. But we firmly believe that the law supports the conclusion that that particular prosecutor should have been screened off. There's good case law on screening, which we did fully cite in our briefs in a timely way. And there was no effort to screen off that prosecutor. And that has now created a problem for the whole office. That is not made up out of a whole cloth. And like I said, it's not about tactics or lenience or delay. This isn't delaying anything, at least on our part. The other thing that I want to point out is to say that until this court decides there's a conflict of interest, um, somebody else shouldn't be handling this issue is circular because by that point in time, you've already the court would have already allowed the conflicted attorneys to represent the state in a hearing on their potential conflict. So I actually think the way that you avoid that circular argument and the um sort of harm that arises if the court were to find that there is a conflict um is to um at least temporarily have the attorney general's office handle this. Um yes, Mr. Gray is an elected official, but that doesn't mean that his office doesn't have a conflict of interest. Conflict of interests arise. A judicial officer decides to become a prosecutor. A prosecutor decides to become a judicial officer. That's actually where most of the case law comes from. As you're on your notice, a defense attorney changes careers and becomes a prosecutor. There has to be a screening. The case law is very clear that the screening has to be adequate. There's been no screening here because Mr. Gray decided we don't think there's a conflict of interest. And what we're saying is it's not a needle in a hay stack. It's not a tactic. It's not a fiction. It's not a, you know, a a a thin read. Um the evidence that the court has uh suggests number one that there's a very good possibility that as a legal matter there's a conflict of interest. why we need to have an evidentiary hearing because the court doesn't have all the facts and number two that the Utah County Attorney's Office because they decided early on without consulting with anybody that they didn't have a conflict of interest didn't put any screening mechanisms in place. And so I understand that um they want to defend the decisions that they've made, but the question is shouldn't the state be represented by somebody else in the course of this court resolving whether the those decisions were right? Because to quote the law and to quote the ethics, the Utah County Attorney's Office is now serving two masters. I don't like that word, but that's the word in the in the doctrine. They're representing themselves and they're representing the state of Utah, and that's why the attorney general or somebody else designated by the attorney general should be representing them um in this matter. And I do want to say one more thing, if I may, your honor, and I appreciate the court's patience. I think that the way we raise this issue in our reply brief is not as um accommodating to just letting it go as council suggests. is we asked the question is whether it is even appropriate for the UCO to litigate this issue on its own behalf. While the UCAO may have provided this court with the information that it has deemed relevant to this issue, the scope of the disclosures and litigation of this motion should have been assigned to another state agency such as the attorney general. We didn't suggest that this court should appoint a special prosecutor for all purposes um or that um the filing of this motion means that the Utah County Attorney's Office is automatically disqualified from the litigation. That's the point of the motion is whether they had a conflict of interest and if they did whether they handled it. And it's our position correctly and it's our position that the answer is yes and no. So I understand there are witnesses here. People are ready to go. Um we think that um the court should either accept briefing or agree with us that the referral is appropriate. And I want to cite if I may the citation by the Supreme Court in Jimenez. So this is 588 PC. It's 707, but this is at 708. This is the statute quoted by the Supreme Court. If at any time after investigation by and a finding and a recommendation from the district judge involved that the county attorney in any county is unable to satisfactorily and adequately perform his duties in prosecuting a criminal case without additional legal assistance, the attorney general shall provide such assistance. That's very broad. What that means in this case is it's inappropriate for the Utah County Attorney's Office to represent itself when it is also representing the state and that in for this motion this court has the discretion we would say respectfully the obligation to designate the attorney general to represent the state the people of the state of Utah in this motion and depending upon how the court rules on the motion then we have to see what happens next. >> So is it your position that the court has discretion to make that decision? >> I think that the court has the discretion to say to the Utah County attorneys, you shouldn't be representing yourself in this case at this stage as to this motion only. continue to do what you do while this motion is pending and we will resolve this motion. I am not suggesting that they should stop the work that Mr. McBride talked about about preparing discovery, having their agents interview witnesses. Um, we want to get this motion resolved in a timely way. It is not a stalling tactic. But, um, I'm not saying, let me let me be very careful because I I don't want to misinterpret the court's question. I'm not saying that whatever this court decides is the right decision because the court has discretion. We believe that the law requires that the state that the county attorney's office be represented by somebody else for this motion. What I'm saying is the to compel that when the state attorney and the attorney general haven't done anything about that yet. I'm not saying you that the court I mean I don't know what the what the standard of review on appeal would be. So I'm not just saying it's it's an abuse of discretion standard. What I'm saying is the legislature gave this court the authority to direct refer to the attorney general representation in a criminal case where there's a showing of a potential conflict of interest. And I you know I've been a a criminal litigator although on this side for a long time. So understand what council's talking about is sometimes defendants come up with um questionable grounds and move to disqualify. And I don't think that that's a finding that the court can make in this case. It was actually, as I said before, the Utah County attorneys who were concerned about this enough that they brought it to our attention. We have profound disagreements about the significance of the conflict and the way it was handled. Okay. And otherwise I think I would be repeating myself if I said anything more without answering a direct question. >> All right. I I do I just have a brief question. Do you have your witnesses here today? >> All the witnesses are here. We have no problem as a pragmatic issue the subpoenas that we served which were filed with the court. So but so to be clear, I don't think the court is inferring this. We're we're not unable to proceed if that was the court's conclusion. We are prepared and the witnesses are here. I'm just saying we think that it would be improvident and it could result um in errors of law and it could result in problems down the road. >> Thank you. Do you need any additional time in regards to your argument to continue this hearing based off the the citations you've provided the authorities you've provided the court? No, thank you. >> All right. Thank you. What this court intends to do is this is an important issue and I realize the totality of of what's been presented and and my question in regards to your witnesses is it was informatory. I just wanted to see if if depending on what the court rules if if the parties I don't want to disadvantage either party um in in in that. So this is an important issue and this court wishes to take a a brief recess. I want to look at what's been provided uh and make uh see where the court needs to go. It's it's I I want to inform myself uh take a moment to look at it and as opposed to just making a snap decision uh and taking into consideration all parties and the constitutional rights of all parties as well. With that, we will be in a brief recess. I I always hesitate to give the time because sometimes >> I appreciate you being here. Court is in brought up are important and the court wanted to take the necessary time to examine what has been presented and and make a decision on how we move forward today. the defendants our defense's argument and the defense relying upon Jimenez and Robertson cases if there is a showing of conflict of interest under rule 1.7 then the court should exercise its discretion and require the Utah Attorney General's office to stand in for the Utah County Attorney's Office. Mr. Novak seeded there has to be a very good possibility of a conflict or showing of a conflict. No authority was given to the standard of proof necessary to satisfy that showing. This court wishes to address the issues of the issue of the showing of conflict of interest under rule 1.7 and regard with regards to the first question whether the prosecutor has a conflict of interest under rule 1.7 the defendant asserts the following facts and I'm drawing from the motion itself and reading from it. One of the prosecutors on the case has a family member who along with approximately 3,000 others attending Turning Point USA at UVU on the day of on the day Charlie Kirk was shot and killed. The family member texted the prosecutor almost contemporary I said that word right with the event and shared that they had heard the gunshot and that they had run with the crowd and other observations feelings and reactions thereafter the prosecutor went to UVU and investigated how far away his family member was to the shooting the family member had left the backpack where they fled. Prosecutors determined that the family member was approximately 85 ft away from Charlie Kirk when he was shot. In my view, those are the alleged facts that the court must consider to answer the first question. Does the prosecutor by virtue of his relationship with a family member who witnessed the shooting have a conflict of interest under rule 1.7? Just looking at my notes, I appreciate And so turning to defense, I accept the facts as you have alleged in your motion as true. Is there any reason to call witnesses to answer the first question before the court? And before you answer that, I understand that there are other relevant facts that pertain to the effect of the alleged conflict. Those facts would include whether the prosecutor was properly screened from the case, what conversations he had with other prosecutors, and whether the family members experience impacted the state's decision to seek the death penalty. It is the defense position, as I understand, those facts may need to be explored through witness testimony. >> [snorts] >> If we're just talking about the first question, whether the prosecutor has a conflict of interest under rule 1.7, is there a need >> Yes, your honor. I understand that the court is trying to get to the threshold question that we have put before it with respect to who should be representing the Utah County Attorney's Office in this motion. But the answer to the court's question is yes because it's not just the mere transactional event that this um that the offspring witnessed the shooting. Um it is the evidentiary development will get at and again we were only provided with an affidavit which was very if I may narrowly drawn at communications that happened after that between that offspring and their parent between that offspring and other family members that that may have been communicated to the parent um communications between the parent and other people in the office impact. Okay, so now I'm going to just say if I had found out that my child was at an incident where somebody was shot and killed, I would have an incredibly strong emotional reaction even if they were safe. Okay, so give me a second. Okay. Um, there was a horrible shooting incident at Brown University a few weeks ago and um, I have a child who lives within 20 miles of there who [snorts] was in Providence that day and everybody in our family was really freaked out until we knew that they were safe. And then even when we knew they were safe, the question was, "What did you see? Did it affect you?" Turned out everybody's fine. But it's not just, oh, I was there, right? And and and my family member didn't witness a shooting. Wasn't in a crowd with 3,000 people who all had to run and take cover in case there were more shots fired, in case there were some other harm that occurred. Okay. So, it's not just the fact that this person was 85t away from Mr. Kirk. that that begins to that that you know that scratches the surface if I may of the um the totality of the circumstances which we think um created a a conflict of interest. So the answer is yes and that's why both the parent and the offspring are here and are under subpoena and agreed to be here and agreed to testify. Obviously, it's the court's proceeding, but nobody has moved to quash. And I think it's obvious that that's because we need further factual development. And our reply brief, if it did anything, it communicated to the court the case law, which shows that this is a fact intensive inquiry and that affidavit are required. And here we don't have affidavit from the parent or from Mr. Gray. We have argument in a brief, but we also believe that testimony from the offspring is necessary and they're here and they agreed to be here and they agreed that Ms. Visser could sign an acknowledgement of service of a subpoena. So, so the very very long answer to the court's question is yes, definitely we need we need to have an evidentary hearing. But isn't the defense required to to um make the threshold showing from from the facts that you're asserting? Uh isn't isn't that where we begin? Not necessarily the state's response, but don't you have a responsibility to show uh that there's a that you've uh made a thresh threshold showing of what you're asserting would would rise to what you're asserting in your motion. So the state uh so the Utah County attorneys informed us that this um offspring was present in a crowd was caught up in um the ensuing chaos. Heard a shot fired. Had to leave their belongings behind. witnessed the trauma of other people. Um, we can't really get beyond that without fact. I mean, if what the court is saying hypothetically is, I want you to go sit down and interview people, that's one thing. But if the court's saying that we somehow should have more information than the county has given us, we can't do that without evidentiary development. Okay. We have questions about whether there were more non-recorded communications that we haven't been told about. Um I think we have a good faith that the court could imagine that a family would talk about such an incident and it wouldn't just be the text messages that the court has in the exhibit. And I don't purport to say anybody should run their family the way my family operates. I'm just talking about what I think would be natural, which is families talk about these things because we want to take care of our kids and we want to make sure they're okay. And then we need to make sure that our responsibilities to the public and to justice aren't impacted by our personal experiences. And I think that we can only get at that, your honor, um through evidentiary development. >> All right. And that's why and and I think that the state would agree with that because that's why they provided the court with some affidavit and some fact in the course of argument. So I think that it needs to be fully developed through the very limited number of witnesses that are present. >> I understand. Um let me turn to the state. >> What's the state's position? >> So I want to make sure I'm understanding there's two there's two layers here, right? The first layer is when an alleged conflict arises, does the in this case the county attorney's office have to conflict the handling of that allegation to another special prosecutor, attorney general's office, right? Your question is, doesn't the defense have to make an initial showing before that first conflict has or or occurs that requires that delegation? >> Yes. >> Okay. My answer is yes. I mean, otherwise we have to have a hearing to determine if another entity has to handle the substantive issue and then you have to have another hearing to determine if there actually is a conflict. I think there has to be at first a a a showing that there is, you know, a basis for a conflict. Otherwise, someone can come in and say, I think there's a conflict without any evidence whatsoever. Um, or not evidence that's that's that's uh credible. I think and for that reason, I think the court should be able to make this threshold showing based on the affidavit, right? the affidavit and the facts have been profered. I think there's enough there for you to say yes, the county attorney's office can handle this motion on it on its own or no, this motion needs to go to the uh attorney general's office, whoever whoever else um to handle the substantive issue of whether or not there's a conflict. Um I mean, I want to be clear. I >> New episodes Mondays. >> Even after all these years, I never tire of this view. >> Your favorite community [music] returns. action >> with open arms and open hearts. >> Do you think they're official? >> Hello, Bill. >> Hello, Georgie. >> We've sure had adventures in these woods. >> Hopefully, we'll have some more. >> And the moment [music] you've been waiting for. >> Don't mess this up. >> When Calls the Heart, new [music] episodes streaming Mondays on Hallmark Plus on YouTube Prime Time channels. not to determine whether or not the issue of whether or not there's a conflict should be conflicted. >> Okay. I I I think there may have been a little bit of confusion there and I'll take responsibility for the question in regards to the threshold showing uh so threshold showing of a conflict of interest under rule 1.7. So the the AG's is is a is an it seems to follow after in time to see if there's a conflict initially. So in regards to establishing that uh defense and and I don't wish to speak for you, but my understanding is you wish to call witnesses to to put that evidence on. >> Then I misunderstood the court's We need to take testimony in order for this court to make a finding on one under 1.7 that conflict free council should represent the state in this motion. I am not suggesting and I didn't mean to that That's not what So, so if I misunderstood the court's question, I thought the court was saying, "Do we even need an evidentiary hearing on your motion to disqualify? Isn't it [clears throat] enough for the court to just read the papers?" >> But that was not Was that your question? >> Well, that and I'll take full responsibility uh on my question. I was that was really the push on it because my understanding is that determination needs to be made uh based off what you told us uh in the beginning. Um that showing of a conflict of interest um there has to be very good possibility of a conflict or showing of a conflict is the very first step before we go down the further road of addressing the AG's office. And so I was alluding to based off that, does that require an evidentiary hearing from your perspective? >> I don't think that it requires an evidentiary hearing, but I don't want to um predict or make assumptions about the court's view. I believe that the um Utah County Attorney's disclosure to us on October 20th um of this situation and our assessment that it creates a conflict of interest is not frivolous. It's not taken for the purposes of delay or tactics. It's a real potential conflict. I don't know what the threshold showing is that permits or requires the court to authority under what is now in justosition to the you know the Utah legislature changes its code so often like we have to figure out all the new code numbers but it's now section 17-68-304 which gives the court the authority to appoint um the attorney general in this situation for this purpose 1768304 as opposed to the code section cited in the law is the same but the code sections have changed but what I'm saying is I don't want to predict or gamble with what showing this court thinks is necess necessary in order to appropriately exercise its discretion to make that referral. And so if the court says I need more, then we should have an evidentiary hearing because the the the important thing is to get it right, not for me to bargain on whether our papers show enough. The only thing that we know that we can show in our papers is what we were told and what we were given. and we were given um some text messaging between family members and maybe some some other people. I mean, the court has that. It's an exhibit. Um that's all we really have. And so, I don't want to just say, "Oh, yeah, there's enough there." And then have the court say, "No, there isn't." Because it may be that the court wants to take some preliminary permit us to take some preliminary testimony in order to make that decision. But what I really think in instead of starting an evidentiary hearing on a motion to [snorts] determine if there should be a referral, I think that there's a sufficient showing that there should be a referral by this court um because of 1.7 under the court's authority under Utah code section 1768304 before we even begin to take testimony. I mean, the fact that Mr. Gray is going to be the first witness we call already s and s and and that the state hasn't moved to quash because it's a frivolous subpoena or it doesn't have we there's no basis in the factual predicate to examine Mr. Gray about these things suggests that there's a problem here that Mr. Gray's office is representing Mr. while also trying to represent the state. And that's an inherent problem. And I understand it's a thorny question. It's what's the what's the showing that's necessary? And does the court have discretion or is the court compelled to is the court going to commit error if it doesn't? That's why I think that maybe some some thoughtful briefing is an appropriate thing to do um before we start an evidentiary hearing uh and then realize that we got off on the wrong foot because there should be somebody else seated at council table when two members of the state's attorney's office who are members of the prosecution team are two of the four or five witnesses in this hearing. So I I I'm not trying to dance around the court's question. What I'm really saying is I don't know that we can be stuck with only being able to give a court a showing based on the evidence we've been given when all we've been given is a memo that says this person was there. We don't think it's a problem. They were 85 ft away when Mr. Kirk was killed. And so, and I appreciate what you're saying, council, but what I'm trying to determine is in your regard, in in your understanding, I want to address is the sufficiency of the showing, is it your request for an evidentiary hearing for you to present to the court enough evidence for the court to make that determination or or something else? If um if the court doesn't believe that the papers themselves sufficiently demonstrate that for purposes of the motion to disqualify the state should be represented by somebody else, then the answer is yes. We want to have an evidentiary hearing up until the point where the court reaches that conclusion because um that would be the only way for us to satisfy whatever sufficient whatever showing the court deems necessary. So I'm not going to wave an evidentiary hearing if the court saying well I don't think we have enough evidence here. Obviously the answer is yes. What I'm really just saying is I think I think that based on the papers, the court can say, "Yeah, this is a significant problem in a serious case that has really, really serious consequences for Mr. Robinson, for the people of the state of Utah, for the victim's family. And we should do this carefully and correctly. And I think the way to do that is to have the attorney general of Utah designate somebody in their office to represent the county for this limited purpose until the court determines the scope of the conflict. We think the conflict requires disqualification from the case. But ultimately, obviously, that's going to be a judicial determination. >> All right. Anything further from the state before the court make this ruling on this issue? >> I just want to clarify. You're talking about the need for an evident jury hearing in order to determine whether or not the states that the county attorney's office can handle the motion to disqualify? >> No, I determining just an initial showing of a conflict that exists here. Like it it >> Well, for what purpose? To disqualify the office or to have the attorney general's office step in and handle the disqualification? >> Can I take a crack at it? >> If you wouldn't mind, Mr. Gray, just step into the the the left room just so the the record picks you up. And sometimes these microphones are a little long. >> If I could take a crack at it. >> Basically, I think what you're saying, it's kind of like a Frank's hearing where you have to allege sufficient facts. Um so that based on those facts um if there if you take if the court takes that as true then um you would need a whether or not there would be a legal basis to conflict it out or or find a conflict, right? And so if they don't make that showing, then the court can rule straightway. But if they do make that showing, if what's alleged is true, then we go to an evidentiary hearing. is out >> mostly. It's the initial showing of a conflict and what what happens after that will be determined because it it they're bringing this up for the first time today. >> Basically like a primacious showing initially. Is that what you're saying? >> Essentially. >> Yeah. >> Okay. I Yeah, I think that's >> Yeah, I'll let you. >> No, I appreciate your clarification, >> Mr. McBride. All right. It's the court's uh and I've read the briefing by all parties and and and listened to the argument today and and I don't believe a sufficient showing has been made for the court just relying upon the briefing itself and um and so I can't make that finding based off well I I would find that that threshold showing hasn't been met based off the briefing. And and turning to Mr. Novak. Um, based off that that finding of the Uh, our view is that if the court is concluded that the briefing does not proof, but the court should at this time make a referral. Then we should begin, the court should begin to take evidence and there may be a moment where the court says, "Okay, I've heard enough. Now I'm ready to make a referral and we're gonna stop and pause and wait for the attorney general to engage and then um we'll have to see where that goes. But it may be that we have to finish the evidentiary hearing. But you know to um and I can I think all of us can attempt to um prioritize the portions of our examination so that the court can make that finding as early as possible. I'm just trying to avoid doing the hearing twice. I understand >> because right now it's our view the state is not being represented by the attorneys who should be representing it. And so if the state's going to come in later and say, "Well, we want to redo the evidentiary hearing because the state wasn't represented by the right parties." I mean, it just or by the right lawyers that that's something that we would want to avoid. You know, we want we want to do this once out of a courtesy to the court and to um a couple of witnesses. >> No, I appreciate that. And Can this be accomplished by profer? >> I don't know what the witnesses are going to say because they've only given us very limited information. Um, the state elected to give us information in their briefing, some of which is, like I said a few times now, is not sworn by affidavit or declaration. It's in the nature of argument. I mean, there are portions of Mr. Gray's brief. He signed it where he makes many many assertions of fact in the course of arguing the legal issues and none of that is sworn and uh I mean I'm sure that um and and I think so so I don't think there can be a profer because I don't know what the profer is. I know that I have a lot of questions about things that we were not that the court was not told about in the briefing and the affidavit. So, so the answer respectfully is no. It can't be done by profer. >> All right. And which witnesses are you intending to call today? And I understand you're saying you wish to to just put on enough and focus on on the key issues, but just just if I were to grant I'm just trying to understand the scope. >> I think Mr. Gray is the first witness. The second witness. >> We may approach Yes. Parties to the bench, please. >> Okay. >> [clears throat] >> Thank you, councel. In regards to the question, what witnesses do you anticipate calling? >> Mr. Gray, I'm going to get his title wrong, but is an investigator with the county attorney's office, the prosecutor who we believe is conflicted off, and their offspring. Okay. >> All right. Um, >> No. >> All right. I I'm assuming the next portion that we need to address is is your motion in regards to the hearing itself, the evidentiary hearing, whether it's closed or open. >> Correct. >> Is the court looking over my shoulder at >> No, no, at you. >> Sorry. It's there. There is someone behind you, but I was trying to look at you that monitor's in the way. But I >> When the county attorneys informed us of this factual issue and we told them that we thought that um there was a disqualifying conflict, we had an agreement that we would file our motion privately, I think is the correct term. >> So that certain identities were protected. And that was at the request and we've to accommodate that and we have no problem with that. So we are not pushing for this hearing to be closed but we totally understand why it's appropriate to do so and um it is um and Mr. Nick Bride has verbalized this very well in conversations on the council. The the record is going to be very very muddy if we can't have examinations that use names and identities. It's just going to be super >> five things people love about look optic progressive readers. [music] I can see clearly like this way from top and then on the bottom it's magnified. [music] You can see >> say we view as an appropriate um difference to the requests of the county attorney. >> All right. To this day, >> given the given the uh extreme publicity and the issues that surround this case, we would ask that this portion of the uh the hearing be closed. Um we've had communications with council for the media. believe that they agree to that um after taking a balancing test of uh the public's right to know and the right to an open uh proceeding and the privacy interests at issue. >> All right. One of my concerns that I have and is there any other parties weighing in? >> I think there may be your honor. Um both events and and here in person. >> All right. Well, >> your honor, this is this is Jeff Hunt. Uh can you hear me? >> I sure can, Mr. Hunt. Thank you, >> your honor. Thank you for the accommodation and courtesy to allow us to appear remotely. With me is my colleague, David Ryman. We represent the Desireette News, KSL, KUTV, and other news media. We would like to speak briefly to the the closure issue if that's okay. >> All right, I'll hear from you. >> Uh, we did meet and confer with council for the state and council for the defendant concerning closure. and council has explained that they believe it would be impossible to conduct this this hearing or even portions of it in open court without causing prejudice to the privacy and personal safety interests of the family member witness involved. uh they've told us they believe it would not be feasible or practicable to approach this on a witness by witness basis or an issue by issue bas basis because they believe the names of the prosecutor and the family member would be used throughout the examination of witnesses. Uh so we have no reason to doubt uh the statements and representations of council and in reliance on those would not be objecting to closure of the evidentiary uh hearing on the disqualification and the referral issues unless the court has a different view and believes that we could parse this on a witness by witness or an issue by issue basis. That said, your honor, we understand that council for the state and the defendant have agreed to review a transcript of any evidentiary hearing and make limited and appropriate redactions so that a public version of the transcript could be released. And with that, there are just a couple other brief points I'd like to make. First, we think that this should be the rare exception to conducting these proceedings in open court. There's a strong constitutional presumption of open and public court proceedings and of course enormous public interest in this particular case. That openy that openness and transparency is an institutional value that serves this court, the participants and the public well. The facts and circumstances of this particular motion given the fact that it concerns a family relationship of the prosecutor uh makes it a very extraordinary and and unique situation uh that that we feel given the represent representations made can justify the closure. Although we do believe in most cases just the fact that a motion implicates a witness will not be grounds for closure. Second, we just wanted to get on the record that we believe that release of a transcript is not an adequate substitute for the ability of the public and the press to attend and view the proceedings themselves. For this particular evidentiary hearing, that may be the only practical mechanism for the public to obtain some information about the case. But again, we would expect this would be the exception uh and not become a regular practice. And finally, your honor, it's our position that any oral argument on the disqualification motion or the referral motion should be conducted in a public hearing. Um, as this hearing itself has shown, a lot can be done um and argued without disclosing the names of family members or or the witness at issue and jeopardizing those those uh those interests. Council can refrain from identifying the the prosecutor or family member uh to protect the asserted privacy interests and and we have experienced counsel. they could be mindful of that issue during oral argument and it's not unduly burdensome for for them to take those steps and any burden would be greatly outweighed by the public interest in learning more about the motion and having at least an open argument. So we do believe that the argument um and I understand the argument will be made at a later date not today but that should be done in open court. That's all I have your honor. >> Thank you Mr. Hunt. Anything further from the parties? >> Your honor, as to the oral argument, um it is our uh it is our request that it be closed. And the reason why is that um we're not perfect. Um names names slip. Uh it's happened in uh trials. It's happened in arguments before. Um, and I'm concerned of the risk that that could have um if uh one of the parties, one of the attorneys were to slip and identify um those who ought to be protected. With that said, um a fallback position could be not live streaming the event and requiring any redaction should an inadvertent um mention of a name be made. >> Thank you, council. One of my biggest concerns is I have to make findings of fact uh that are very specific. I I can't redact my findings when I issue an order and I will have to cite to the relevant facts and and and quite honestly the name of the prosecutor is a relevant fact. I I can't simply glaze over that and make an assertion. It's important because it relates to various factors that that you may address and which has been brought up in briefing. And so this court is is uh going to deny the request to close the hearing as it relates to and I will take this motion witness by witness. I understand that there may be a witness that this is applicable to and the court will entertain that. But because this court has to make findings and has to sight to the facts, I need to be able to do that. And since I'm going to do that anyway, which I will, I'd rather address it in an open court. And again, I will entertain any motions witness by witness that are going to be called and and be respectful uh of that. Uh but going to Mr. McBride's point, uh you both have that duty. I it's it's in regards to how you present and and if you're talking about a name that needs to be protected, that's on you on on how It seems inappropriate to create a safeguard to prevent you from making a mistake on accidentally saying a name that I don't I don't believe that's that would be a proper reason to close the hearing just for that. And and I understand the pressure, council. I know it's difficult but um I I I cannot accept that as reason to close the entire proceedings for the evidentiary hearing portion but again as the witnesses are called I will entertain the motion whether to close the hearing uh per witness and and we will address >> Mr. Novak. >> Yes. >> With that how would we like to proceed? Well, first, is there any clarification needed on this court's ruling as we're proceeding into the evidentiary hearing? >> Um, I just want to I just want to clarify. Uh, are we are you going to entertain motions to close at the outset of every witness? Is that is that what I understand? >> If the motion is made, yes. >> May we have a moment? >> Yes. >> [clears throat] Oh, looks like I'm Would it be easier just to go into a brief recess? I don't want to make you feel rushed. You have obviously important conversations. Uh so [clears throat] the court's intent to enter a brief recess to allow the party sufficient time to discuss whatever you need to discuss. >> I think we're I think I'm comfortable moving forward making a proper right now um and asking you to reconsider that motion. And the reason is because um courts, the Supreme Court of Utah, appellet courts um refer to witnesses by their initials all the time. Um in our pleadings, we often refer to witnesses uh by their initials. In Supreme Court United States opinions, witnesses are referred to by their initials. And that's because there's a privacy interest. In this case, I don't think a privacy interest could be greater. Um this case has polarized the nation um in many ways and uh there have been uh death threats made uh against other witnesses. Um there have been death threats made my understanding there's been threats against uh council. Our office has received threats. Um uh doxing is a real thing. You know uh finding people online um harassing them online with with the technology that we have now. It's not that hard to find out just about every detail about a person through internet searches, um paid uh subscriptions to um programs that do background checks. Um and we are extremely concerned that uh we will have a a uh a person that does not need to be subject to death threats, to harassment, to doxing, to um all of those things that can be avoided. We're very concerned that that will happen and happen to this person for no other reason than her than this person's um father is a prosecutor on the case. Your honor, I think that there's a way around this that we can avoid uh those threats to her, those risks to her, and I think it's by referring to um uh substitute names like we have in the in the public pleading. So, your I would I would just really ask you to please reconsider your opinion. There's a stipulation from the media to shut this portion of the of the hearing. There's stipulation from the defense. I think the court in it ruling can refer to the prosecutor as a prosecutor. Uh I think it can refer to uh the child as adult child. I think that that would be adequate. I think in a sealed record um there can be references to names. That would be my request. Mr. I I am I I can't ask more adamantly than I am >> We take no issue with anything the council has said. That's why we completely deferred to the state attorney's sorry the county attorney's initial request that all of the briefing as much as possible be um under seal and then redacted. Thank you. The one of the points that when I was considering this as a potential issue is that both parties filed a public version of your motions and you used a mechanism to convey that same information and and I understand it was the choice of the parties to do that to issue to um publish those uh public versions. and and the court is fine in regards to uh particular witnesses referring to those terms that were used in the motions, but this court is does not agree um that the entirety of the evidentiary hearing needs to be closed. Uh and and it is a very broad approach to a narrow issue and and I and I understand and I respect the concerns made by Mr. McBride and I and I understand that and the court is willing to go witness by witness. If you feel that a particular witness that that needs to be closed, the court will entertain that. I understand the issues of safety and the court feels um the the urgency and and the importance of that as has as has been uh stated. But this court cannot find that the closure of the entirety of the evidentiary hearing is proper. uh given given the motions that have been filed publicly online and I have to leave it to council in deciding how you present the evidence, how you state the names, I I'm willing to to abide by the format used in those public motions, but this court denies the request to close the evidentiary hearing. And again, we'll take witness by witness uh a motion if if that particular witness needs closure uh uh from well that that particular witnesses >> If the court's ready to begin the evidentiary hearing, we would call um Jeffrey S. Gray as the first witness. >> All right. >> If the court wants to take a little break, we can do that, too. >> The courts uh can can move forward. If parties need a break, I'm happy to to give a a break. I know it's we're >> Yeah. Go ahead. >> In fact, let's go ahead and take a brief break. We need to relocate our court reporter, so this is a natural spot to take a break. Can we have one moment of sidebar? >> Absolutely. different. All >> Council, >> I believe the exclusionary role is being invoked. >> Yes, your honor. We would ask the court to exclude um all witnesses during the testimony of other witnesses. >> All right. and uh to the state any input. >> We agree. >> Okay. >> And at this time uh would it be convenient to just take a a brief recess? >> Yes, please. >> All right. It's 3:20. How about we come back at at 3:30 and resume on the record? >> Sounds good. All right. I understand there may be an issue. There is your honor. Um Michael Berg for Mr. Robinson. We filed uh today a motion to be heard in the future about excluding cameras in the courtroom. And one of the issues that's reviewed in that motion, which of course court hasn't had a chance to look at it yet, is the cameraman's repeated violation of the portion of the decorum order, which requires that the camera not focus in on Mr. Robinson's lips uh to allow a lip reader to translate confidential communications between council and Mr. Robinson. And that order has been violated in the past. It's been used by the media to interpret falsely the content of conversations between Mr. Robinson and his lawyers. And it happened again just uh while the court was in session. I have the clip and I'd like the court to look at it to see if I'm correct because I think the court will see they're zooming in on Mr. Robinson's lips and it's going to allow the media to offer these same sort of false narratives they have in the past. So, with the court's permission, I'd like to present that to the court. >> Well, Mr. Bert, um, is is it this is the violation or is there anything else? I want to make sure I hear your your argument and and view the evidence in its entirety and and so if there's anything else, I I want to consider it all at the same time. >> Yes. and and for purposes of the motion I'm going to make to the court now, which is to ex either exclude the court either to exclude the camera for purposes of this hearing and of course the court will take up the issue uh with regard to future appearances when the court considers the motion or in the alternative to order the cameraman not to focus at all on Mr. Robinson. And so I think for the purposes of that motion, the court needs just to look at the clip that we would uh profer to the court as showing that there was a clear violation of the court's order. >> Thank you, council. I appreciate that. Um before I turn to that, I'll turn to the state if they wish to weigh in the request. >> Um I think it [clears throat] it raises a legitimate concern. I think the court ought to consider the uh evidence that the defense council has. >> All right. >> It's very brief. We have it on a phone and the court can look at it. >> And has have you shown that to the other parties? >> I have. >> Okay. Thank you. I appreciate that. >> What is the length of the first video? >> And do you want the benefit of the record to articulate what this first clip shows? >> You know, I think the clip shows that the camera is zooming in uh the first clip on Mr. Robinson's lips as he is trying to communicate with me uh sitting next Thank you. >> If I may reapproach with the second video here. >> Yes. >> And your honor, the second video is a clip from a Court TV posting showing Mr. Robinson's lips moving as he's attempting to speak to And your honor, one last thing I'd like to add if I could, which is I think the court very uh correctly and very cautiously admonished the cameraman about your December 23rd order before this hearing began and he said he understood the order and I think the order is very clear as to this lipreer provision. And I can elaborate further why it's damaging, but I think it's obvious to the court if the if the uh media is allowed to interpret the conversations between council and his lawyer, it it creates all sorts of problems in terms of Mr. Robinson's right to a fair trial. >> Thank you, Mr. B. And >> just one more question. I apologize. Just for the benefit of the record, uh and and from your position citing to the standing decorum order the violation itself so we can connect it all from your argument. >> Yes, your honor. I forget the paragraph but there is a paragraph in the court's latest uh December 25th decorum order. >> It's paragraph 48. >> 48. And it's been a feature of every decorum order. I think we're on the third one. But from the start, the court has prohibited zoomins to allow lip readers to interpret what's being said between council and and the uh defendant. And finally, um I think you led with this in in regards to the sanctions being requested. uh you you cited to the court sanctions and then there was a second one uh referring to and I I wanted to make sure I wrote it down right because >> sure >> uh something along the lines of not showing Mr. Robinson at all like I want to make sure I understood that request. >> Sure. The uh request was either to exclude the cameras for purposes of this hearing in its entirety because of the violation and because we can't be assured that the cameraman's going to comply with the court's order. The second request is if the court is not going to exclude the cameras, then it should at the very least order the cameraman not to shoot any footage of Mr. Robinson. That the camera should be focused on the court and the witnesses if the court permits that, but it should not be zooming in on Mr. Robinson. His demeanor, his conversations with his lawyers have nothing to do with the newsworthiness of this case. And what it's allowing is very prejuditial information to be leaked to the public through these lip readers and body language interpreters and it's creating uh massive prejuditial publicity for us. So that's the request. >> Thank you Mr. Bur. >> Thank you. >> I'll hear from other parties if they As your honor, Michael Jud on behalf of the media entities. I want to take the court back to that specific paragraph of the decorum order because I do want to make sure we're on the same page about this. It's the second sentence of paragraph 48 of the decorum order that I understand is at issue here. It does say no visual recording is permitted of a person's lips so as to be decipherable by a lip reader during conferences involving council at council tables or bench conferences with the judge. The zoomin language that you have heard referred to previously doesn't fall in that sentence. The zoomin language comes in the next sentence which says no one may zoom in on anything on council's table or the bench to identify any writing. So those are two separate things. Um the first that we learned about this was during the break. Um I briefly reviewed the two videos that the court has reviewed. I understand that those were 9 seconds and 5 seconds long. Um I identified the provision of the decorum order that I believe applied here. Spoke to the pool cameraman about that. ensured that the rule about um capturing conversations involving council at council's table or at the bench so that they may be decipherable by lip readers was an important provision um in the court's decorum order that it should be followed. I understand that the uh cameraman understands that rule that any capture of those conversations was inadvertent. I understand the concerns raised by defense in this case about potential prejuditial effect of something that is intended to capture conversations. Um I don't believe that that's what occurred in this case. I believe that uh the court's order should be understood and applied as written and done so uh strictly. [clears throat] Um but I don't believe that there's been a violation here. We've been now on the record for 3 hours. I believe that the total length of the two videos that were shown to the court were 14 seconds long. Whether or not either of those conversations rises to the level of capturing the movement of somebody's lips so that it can be decipherable from a lip reader, I'm not in a position to judge. But I can assure the court that uh the media is aware of that provision of defense's concern about the potential violation of that order and that they will take that seriously. already been raised, already been uh discussed. As far as the remedy sought here, I think that excluding all cameras from the courtroom for this important part of this important proceeding uh would be broader than any sort of remedy would be necessary here. Uh as would the direction that the cameras not show Mr. Robinson in any way. I understand that potentially any shot on a still camera, on a video camera, of a defendant in a criminal case could potentially be twisted or used by some to try to uh impute some sort of thought or some sort of idea. Um, but I don't believe there's anything in the court's rules. I don't believe there's anything in the ruling so far to date that suggests that the way to address that kind of concern is to say that a defendant, a critical figure in a case like this and one that the decorum order clearly allows to be photographed and videoed um be kept off camera altogether. The media continues to take this seriously before every single hearing. We speak about the decorum order uh and what it requires. We recognize the importance of doing it and that there can be consequences if that's not kept. The media understands and hears that. um and don't do not believe that any further reprimand or any sort of further exclusion is necessary here. >> Well, before I turn to you, I I want to turn to the stage. I want to give all parties an opportunity and then then that allows you to respond to whatever they say. >> No, we have we have nothing to add. We'll submit the issue. Judge, the problem with that explanation, that's the same thing they said last time on December 11th. And on December 11th, there was an same violation, lipreer. I can pull up for the court what the electronic media did with the prior violation. They hired a lipreer. The lipreer purported to derive a confession from the incident and they posted that. It's still up there. So, it's great that they apologize, but once this kind of damage is done, it it is irreparable and we can't continuously have violations where the media gets up and does this media copa uh and they just continue to do the same thing. And I point out to the court, this is the same pattern that happened in the Corberger case that's discussed in the motion we filed today. And eventually the court there had to order that all coverage of Mr. Corberger's face uh was prohibited and we attached that order to the motion that was just filed with the court. And I understand the media's desire for dramatic coverage. I understand how they want to incriminate Mr. Robinson, but that process both is supposed to happen in a trial, not in the media. And it's a serious violation. It's one that the court should not just blink away and say, "I accept the apology." Especially after the court was so clear this morning calling the cameraman up asking if he had read the December 23rd order and his response was, "I'm good to go." Meaning he had read it and presumably he read that provision about zooming in on lips. There's no excuse for it. The court should take some action. >> Thank you, Mr. Thank you. >> Anything further from any of the parties before this court makes a ruling on this issue that's before it? No. >> I just want to make one note, your honor. Um, those clips that I showed you are just small portions of much longer footage that was available in the live stream. Um, that was just what we needed to compartmentalize to get it to your honor, but it was a much more extensive period of time. >> Okay. All right. All right. I appreciate uh this being brought promptly to the court's attention. This is an important issue and uh the court takes it very seriously as it relates to today. Uh well, first um I did put on the record uh very clearly that uh there would be potential consequences for any violation of the court's December 23rd, 2025 standing decorum order for the first part. Well, and and I've also had a chance to view the two clips that was presented. It was shown to all parties. The first appeared to show uh an attorney and Mr. Robinson uh speaking uh for about 9 seconds is is what my memory showed uh tells me and reminds me. The second clip was for about 5 seconds. Uh I believe it was from a slightly different angle uh but uh it also captured that. And in both instances, I could see uh Mr. Robinson's lips moving. And um I don't remember about the second clip, but I believe in the first clip, it also showed council's lips moving, but uh notwithstanding uh that was in place. I also uh refer to statement made by uh the council for the news media and going to uh it is paragraph 48 and I will read it in its entirety. No audio recording is permitted of the conference involving council at council's tables or during bench conferences with the judge. No visual recording is permitted of a person's lips so as to be decipherable by a lip reader during conferences involving council at council's table or bench conferences with the judge. No one may zoom in on anything on council's tables or the bench to identify any writings. Now I in regards to the zooming I know it was there was a a representation and and it's it's easy to as you're reading to kind of combine it but I'm not finding that zooming in uh relates to the lipreer portion but that's that's not material. I I do find that um and I'm not a lip reader so I don't know what the standard is for lip reading but I do note that nine seconds in that first clip one could see his lips moving and it is a it is a significant time for as it relates to this particular issue. It wasn't a passing shot. it was focused on these two persons and and so I find that the decorum order as it relates to section paragraph 48 as it relates to no visual recording is permitted of a person's lips so as to be decipherable by lip reader I find that that has been violated in regards to the second clip 5 seconds where it shows Mr. Robinson and I believe one of the one of council that I was able to view Mr. Robinson's lips moving. It wasn't a passing shot that they just so happened to capture. It was focused on them. I find that that is a violation of paragraph 48 as it relates to no visual recording is permitted of a person's lips so as to be decipherable by a lip reader. Turning to the next section, finding that the violations uh have been shown as the court has reviewed uh the uh purported evidence of these two violations, I turn to the sanctions. Previously, I stated uh that under Utah code section 78B-6-310, if the court finds a person guilty of contempt, the court may impose a fine of up to $1,000, order incarceration in the county jail for up to 30 days or both. I find that applying this sanction would be disproportionate uh to what the the conduct was in those two clips and the court notes that it is the court's discretion on whether to apply it or not. I find that that uh the court is well the court will not issue this sanction. Uh in addition uh the other court the other uh sanctions the court stated earlier today. In addition, the court may impose the following remedial measures if warranted. Immediate suspension of video transmission of the hearing with proceedings continue only on an audio only basis for this proceeding where the v violation occurred and disqualification if necessary and narrowly tailored of the news organization that filed the request in order for the electronic media coverage of the court proceedings for the hearing in which the violation occurred from providing pool camera operator services in this matter where the court determines such a measure is required to ensure compliance with the standing decorum order and protect the rights of the parties. The court also stated that before making a decision, it would allow council to make uh argument or statements and which the court has done and that the court's actions are not intended to have a chilling effect on the open and transparent courts or on responsible news gathering and that the court is fully committed to the presumption of open proceedings under the applicable rules. That being stated, uh, and as the court was listening, uh, Mr. Bert has suggested that one of the potential sanctions is that, uh, for the camera for the remainder of the hearing, not to focus, not to show Mr. Robinson at all as a sanction for the remainder of today's hearing. Uh, and and and so This court does not wish to make a disproportionate decision on on the actions and it does note and does not minimize the violation. Therefore, this court will uh will take up the suggestion by Mr. Bert that during the remainder of this hearing that the camera shall not uh photograph Mr. Robinson at all and and that will be the sanction of this court. I will allow uh the pool camera operator to reposition the camera to to adhere to that. Um well, first um sir, I'm going to ask you to come forward because I want to make sure that's even a possibility. And and again, I don't mean to put you on the spot. I'm simply I I don't want to set anyone up for failure. I don't want to make an order and if it's not possible, then then further sanctions could apply. Uh, and I recognize that uh it wasn't your anticipation to be on your own camera, but uh as it relates to not uh showing shots of Mr. Robinson for the remainder of this hearing, uh what are your thoughts? >> I I can do that from where I'm positioned now. I can shoot this this lectern. I can uh shoot the bench um and I can avoid the attorney tables altogether if that is what is desired. >> All right. Do you need to do any repositioning of the camera to accomplish that and I'm willing to give you that time to accommodate that? Um I I I just again I don't want to set you up for failure uh at given given what's happened. Um and so what are your thoughts? No, I I think the position I'm in, I am okay to uh avoid the attorney tables at this point and just shoot, you know, this forward part of the courtroom. >> All right. >> Thank you. >> Thank you, sir. >> All right. Uh turning to the parties, any clarification needed about the order of this court and the sanction that is imposed? >> No, you're I only have one. It sounds like this issue is specific to video coverage and that um the order not to uh take any imagery of u Mr. Robinson would not apply for example to the still photographers. Do I have that correct? >> Well, I'll I'll hear from the parties before I offer that clarification. Do just to indicate to the court that one of the problems is not just with the a with the video coverage, but most of the coverage is not covering the proceedings so much as close-ups of Mr. Robinson and comments about his demeanor. So, if they catch him in a moment speaking civily to his attorneys and he happens to smile, that then is twisted into evidence that he's some sort of a remorseless killer. So that applies to the still photography as much as what's going on with the video. So we'd ask the court not to permit still photography at least for purposes of today. And I think after the court sees the motion we we'd be in a position to talk about the future. But I think for now that's our request. >> Thank you Mr. B. >> Thank you to this state. >> Nothing further honor. >> And any other input? All right. This court narrowly tailor its decision as to the violation and the violation comes from the camera the pool camera providing live feed. It doesn't come from uh the photographer. Uh the photographer is the still I don't know what the exact term is in this moment. It is eluding me but the person who is operating the camera to take still shots uh is under the same requirements for this decorum order. I am not going to uh sanction them because what was before me with the 9-second clip and the 5-second clip doesn't apply to them. And so I'm I'm I'm going to limit uh the the sanction as it relates to the pole camera photographer. Again, recognizing that the uh standing decorum order applies equally to the still camera photographer. Thank you, council. I appreciate uh you bringing this to the court's attention and uh the seriousness and professionalism that you presented uh this to the court. So, thank you to all parties and um again to the the camera operator. It you need time to test out to ensure that there is no any inadvertent capturing. I'm willing to do that. I just want to make it clear as day that Mr. Robinson is not to be captured in a sweeping shot in any form for the remainder of this hearing. >> Understood, your honor. >> All right. All right, council. Um, with that in mind, how would we like to proceed? >> Proceed. >> Uh, we'd ask the court to um and the clerk to swear in Mr. Gray. >> Mr. Gray, if you would approach and stand before the court clerk to be sworn in. [clears throat] >> You'd be solely sorry that the testimony you're about to give now before the court will be the truth, the whole truth and not be but the truth. So I hope you got >> Thank you. >> Mr. Gray, if you'd like uh have a seat. Usually we have water bottles. If not, there's one right here. And Mr. Gray, I'm sure you've heard this before, but if you could position the microphones close to you uh just to ensure that the record picks up uh your testimony today. Thank you, >> Mr. Novak. May I proceed? >> Uh Mr. Gray, how long have you been associated with the um Utah County State Attorney's Office? >> Three years. >> Okay. And it was it three years ago that you were elected um to be the chief prosecutor of that office? >> Yes. >> All right. And had you ever previously been associated with the Utah County Prosecutor's Office in any other capacity? >> Um I've defended um on criminal in on criminal appeals. I was a criminal appeals attorney for the state of Utah for 23 years. So, um, I represented the state of Utah on those criminal appeals, which would include Utah County. >> Okay. And, um, did you ever have any professional relationship with the Utah County Attorney's Office in any other capacity other than the appellet work you did before you were elected? [snorts] >> Um, not to my recollection. No. >> Okay. [clears throat] Um because we're in an open session and based on some of the guidance from the court um I'm going to ask you questions um well let me back up. How many prosecutors are in your office right now? Well, that are with with our courts that are actively engaged in in our court system is three 30 and then we have screening prosecutors as well and that that would be another seven or eight. >> Okay. So, I'm going to try to >> I I should stop because I I also my executive team um they don't have courts. So, there's another five of them as well. >> Okay. So, let's let me ask a better question. How many prosecutors in your office um represent the state in felony matters? >> Well, all of them that I just described. I mean, even the screeners, yes, the screeners, um my executive team, they are assigned to special cases. Um usually my executive team, for example, aggravated murder cases, some homicide cases. So we they also are prosecuting and represent the state in trials. >> Can you explain what you mean by the executive team? The executive team would include uh obviously myself, my I've have two chief deputies, uh one chief deputy, another chief uh deputies, general counsel, and then I have a um I have a division chief over major crimes and a division chief over general crimes. So, is it fair to say that there are at least two dozen prosecutors in your office who have substantial experience prosecuting um serious offenses? >> Two dozen? Um I don't know that I'd go as far as two dozen. Okay. >> Um certainly all my SVU attorneys have that experience. Um most of my violent felony attorneys have that experience too, but not all. >> Okay. And do you know how many attorneys in your office have actually >> I don't know the exact number, but I I maybe 15. >> Okay. But but I I guess I should clarify not all of them um have the experience in aggravated murder cases and that's why we specially assign those those attorneys. >> Understood. And how many do you believe have experience in aggravated homicide cases? >> Probably seven or eight. And are all seven or eight assigned to >> Are the five other than you who are assigned to this case experienced in aggravated felony cases? >> Four. Well, I've either three or four >> of the five. >> Yeah. >> Okay. >> All right. Now, I'm going to ask you some questions about um a specific member of your office. Um and because the court may or may not ultimately order that that attorney's identity remain sealed, you know what I mean by the word sealed, right? >> Yes. >> Um I'm going to refer to that person as um prosecutor A. Okay. You all right with that? >> Sure. >> Okay. Um, so how long have you known prosecutor A? >> About three years. >> In your work um as a pallet council for the state, you had did you have any contact with prosecutor? >> Um I may have I don't recall. Um, we generally send something out to when we get an appeal, we generally send um the AG's office, we send something out to the prosecutor, ask them to fill out anything that we should know. More often than not, they never send us anything. And because it's an appeal, I mean, we're bound by the record. So, there's not usually an occasion, but sometimes there is. But I couldn't say for sure that I've never talked. I I certainly don't remember ever talking to him, though I could have. >> Okay. Is prosecutor A a member of your executive team? >> Yes. >> Okay. And did you select prosecutor A to be a member of your executive team? >> Yes. >> And that was at the beginning of your >> tenure as the Utah County Attorney? >> Yes. >> All right. And um so you had close working contact with prosecutor A, who's a member of your executive team for the past three years. >> Yes. And that um unless you're out of the office traveling or on vacation, that's basically every work day of the month. Correct. >> Yes. >> All right. And um have you met members of prosecutor A's family? >> Let's just start with ever. >> What's that? >> Ever. Have you ever met members of prosecutor A's family? Um, I have met his wife. Okay. >> Um, I don't know if I've met his kids. Um, I may have in passing, but I don't really if I did it was like at a function they say this is my family and introduce me. But I I don't remember. >> Have you socialized with prosecutor A and his wife? Um, I think we I just I think we went out to dinner um once after a conference in St. George with with some other prosecutors and their wives. >> Okay. Um, have you ever been to prosecutor A's home? >> No. >> Has prosecutor A ever been to your home? Um, >> you engage in recreational activities in any way with prosecutor A? >> No. >> Whatever you do, running, pickle ball. >> No, I I I need to do more running, but I unfortunately I don't. >> All right, understood. Um, okay. Now, um, prosecutor A has an adult child who was at the September 10th rally at Utah Valley University. Correct. That is what I I I mean, I don't have personal knowledge of that other than what they have told me. So, like I never saw that adult child, but I'm assuming yes, that's true. >> Okay. But on September 10th, um, 2025, at the moment that, um, Mr. Kirk was shot and ultimately died from that shooting at Utah Valley University. You were in Davis County, right? >> Yes. I I indicated in the motion that it was Ogden, but it was actually Leighton. So, it was Leighton. >> Leighton. >> Yes. >> Okay. And I I think that's Davis County. >> All right. That's what I thought. And prosecutor A was with you? >> Yes. >> Okay. And isn't it true that while you and prosecutor A were in Davis County, you learned from prosecutor A that one of his adult children was at the rally and was texting him about their experience. >> Yes. I mean, we had just broken for lunch and he showed me the text. Charlie Charlie Kurt got shot. >> And that was a text that he showed you was from one of his children, right? >> Yes. >> And you knew at the time that it was a text from one of his children, right? >> Yes. >> What did he say to you? So, I'm talking about prosecutor A. >> He said, "Look at my do look at what my child just uh showed me." And that that's about it. And then he said, you know, I should be getting down to UVU. >> Okay. And then he left. >> Yes. >> And he, as far as you understand, he drove down to UVU. >> Well, he drove towards UVU. Yeah. He he drove in the area. >> Okay. >> Ultimately, I met him and then we drove together to UVU. >> Okay. So, you um according to the um pleading that you and you authored the pleading that was filed. >> Yes, I did. >> Okay. Okay. So that for the court's benefit, that's the um state's opposition to the motion to disqualify. You authored that, correct? >> All right. >> And um in it, you said that 10 to 15 minutes after prosecutor A left the event that you were at in Davis County, you left. >> Yes. I >> did you also head in the direction of UVU? >> Yes. >> Okay. And then you and prosecutor A met up somewhere. >> Yes. and then traveled to UVU together in your vehicle or in prosecutor A. >> Um >> I guess there's a third alternative which is you met somebody else and traveled. >> No. Um I don't remember where whose vehicle it was. >> All right. Did you talk to prosecutor A? >> It was it was my vehicle. I'm pretty sure I Okay. >> So, >> and was that just about logistical convenience like let's just go in one car or was there some specific reason? >> Yes. No, that that was no other reason. >> Okay. And on your way to that what I'll call the meeting point, >> did you have any conversations by >> Well, yeah, because we needed to meet. Um, he left. Um, I thought I would get some lunch first before I went to the command post. I got about halfway through that and said my mind was not on it. I needed to go to there. And so then we we called I believe I called him or he called I'm not sure who called who but uh then we met. We we hadn't we hadn't arranged that um when he left. >> Understood. Um but did he convey to you any more information about his child's experience in those conversations? >> No. >> Okay. And did you inquire like how's your kid or anything like that? so you met up and then you went to the command post which was established near the university. Correct. >> It was at the university. >> Okay. Was it in inside one of the buildings? >> What's at? >> It was inside one of the um academic buildings. >> Yes. >> All right. And was did you see prosecutor A's um child there when you were there? >> No. >> Were you introduced to that person? >> No. >> Okay. Did you have any conversations with prosecutor A about whether um they should um stick around and wait? >> No. >> Um >> my my understanding based on well my understanding was that everybody had left. We were told that most of the students had left. They they had not or okay. Okay. So, as far as you know, um, prosecutor A's, um, adult child had left the university before you. >> As far as far as I know, I I my understanding was that, you know, most of the students had fled that first they they went into buildings or whatever and then they made their way out. Um, you are aware I'm sorry, that's not a question. Give me a second, your honor, if you would. Okay. So, did you spend time with prosecutor A at the command post on September 10th at UVU? >> I mean, yes. I mean, we were going different places, but there would be times that we would meet up. Um, but off and on is all I can say. >> Okay. Um, and did there come a time either on the 10th or shortly thereafter where he provided you with some information about how his adult child was doing having been at the >> You know, I don't remember him ever saying anything about that and and I never asked. I probably should have. Um, but uh I don't I don't remember any Was there anybody else at the rally who you are friends with or is a relative of yours or a close coworker that you're aware of? Um, I know that there were some people in my LDS ward whose children were there. >> Okay. And when you say some people, could you be a little more specific? Like how many different families? >> Two members of the ward. >> Sure. But do you know how many different families that would be? >> Um, I think I was told about two. >> Okay. And who told you that? >> Um, one of the one of the families. >> Okay. So, one of the families in your ward informed you that one of their own children had been there and then another one had been there >> and that somebody else from from the ward had been there. >> I see. Um, and do you know you know who those people are by name? >> Um, >> I'm not asking you their names. I just want to know if you if you came to learn who they are. >> Yeah, I came to learn who they are. Yeah. >> Okay. And are you close with those people? Um, I mean, we're casual friends with one of them, but I don't think I learned that until well after we filed the information. >> Understood. When did you learn that? >> Sometime after. I don't know. >> Um, so the information was filed in obviously in midepptember >> just in six days. So, >> right. >> Okay. And do you know like if you saw these the the children of the families in your ward who you understood whether if you saw them on the street would you recognize them? >> Um I would recognize at least one of them. >> Did you ever have any conversations with them or their parents about their experience? >> I tried to stay away from that other than they told me that the one was doing just fine and the other one was shook up. Okay. And um the other one was shook up. I mean is that was that is that the term used or is that just your way to summarize? >> That's my way of summarizing. I mean what did they tell you? >> Having a hard time with it or something of that nature. >> I'm sorry I interrupted you. So somebody told you somebody who you know from your ward told you that their their child is is their child a student at UVU? >> Um probably. I mean, they're young adults, so I'm assuming that. I I really don't know for sure. >> Yeah. >> And I think what you said is that they told you that their um child was was having a hard time with it. >> What? That not their child, but the other family's >> other child. Okay. So, it was like a secondhand thing. >> Yeah. >> Okay. And um do you know if either of those young people who were at the rally Well, I'll put it this way. Do you know where they were? Uh, in terms of in what I'm going to refer to as the amphitheater area, >> The one who was having a hard time with it. >> Did you share that information with um the prosecution team? >> I may have. I I don't remember. I may have in passing. Um, did you ever suggest to any of the law enforcement officers that that person be interviewed because they were impacted by the by what they experienced? >> No, we we don't interfere with the investigation. We try to assist, but um law enforcement, they identify who they want to locate and who they need to interview and I leave that to them. Did the person giving you this information, so this is another adult in your ward, tell you more specifically about what their child and the other child actually saw and experience? >> No. >> Okay. So, you don't really know um much more about where they were, what they saw. All you really know is one of them was having a hard time >> Yeah. >> with the experience that they had. Yeah. I understand you say that you don't interfere with law enforcement, but if you learn, even if it's somebody you know through your community, that somebody has suffered some emotional criminal act that you are responsible for prosecuting. That's not information you would give to an investigator so that they could determine whether or not so that they could go interview that person. >> Um, I didn't consider that as really the um the fact that this young person was having a tough time with what they experienced is what you're saying isn't relevant. When lawyers use the word relevant, we you know, we got to >> Well, it's relevant to them. Um as far relevant as to our case, I don't believe so. No. Now, there was a point in time in October, I think it was October 20th, where prosecutor A sent Mr. Robinson's council an email disclosing that his adult child had been at the rally um providing us with some information. >> Yes. Um and so my first question is um were you part of a decision to disclose that information? >> Yes. >> Okay. And um were you part of a decision as to how that information would be disclosed or how much information would be disclosed? Like what what led to that email? >> Well, there there was no no there was no decision needed as to how much. Um the decision was is to provide the information that we ultimately provided you and that is not because we were we believe that there was a conflict of interest but that was out of an abundance of caution. >> I understand it's your position that you don't think that there's a conflict of interest but I think that's clear. >> All right. Um, [clears throat] did the entire prosecution team as of as it was constituted on October 20th discussed bundle of information that was being disclosed or was it just you and prosecutor A? >> Um, I know that me and prosecutor A discussed it and he may have discussed it with others. I don't believe anybody else was there >> when you discussed it. >> When we discussed it there, one of them may have been or two. I I don't know. >> But it but the information that you obtained sort of in, if I may, in the heat of the moment back on September 10th in Davis County that prosecutor A's child had this experience. Um and the the text messages that went back and forth in the family um that information was shared with the prosecution team. Correct. Everybody knew eventually. >> Eventually. >> Sure. >> I mean, yeah. Eventually. >> Okay. So, I mean, I only knew the fact that she was there at at the time. I only knew that she was there and that that she left. That's all I know. Okay. But is it fair to say that you didn't set up any I'm I'm going to use a term like firewall to keep the rest of the prosecution team um isolated from this information that one of their colleagues children um had this experience at at UVU on September 10th. >> No. Is there a written policy in your office either that existed when you arrived or that you've prepared since then for how to evaluate whether one of your prosecutors needs to be screened off from a case? >> You know, I'm not sure. I mean, we have those conflicts um that that come. I mean, the biggest thing on screening for for us is if there's a potential conflict where information uh that the defendant uh has, one of our prosecutors has because we that that's why you screen cases is to make sure that shared confidences aren't also disclosed to shared confences with the defendant aren't shared with the prosecutor. But you could agree with me that there are other types of conflicts that can arise other than what we might call the um you know privileged communication. >> There there may be I mean I I think there there can be I I can't think of any right now but I think the rules are pretty clear with respect to shared confidences. um you can't uh screening isn't the end all of all you know of how you treat conflicts. I mean generally speaking we will just conflict out um to another office if if we feel like we need to. Um, one example, um, well, I won't go into that, but I mean, we've been threatened before and there was an investigation and of course, we conflicted it to a different prosecutor's office because in that case, we were potential targets of of um this individual. Understood? >> Okay. So, you're not sure if there's a written screening protocol, but what you're saying is um when we you know, we know it when we see it. >> Well, sort of what I'm hearing you say. >> Um sometimes we do. Sometimes, uh, I've had attorneys that felt like they they couldn't talk after they've been conflicted out to at least know the victim, but, um, notify the victim that there was a that we were going to switch the the prosecution. But there may be, I just honestly don't know. We we keep an eye on those things and rely on our attorneys to notify us when there is a conflict. But you knew as of September 10th that prosecutor A's daughter attended the rally, correct? Was in the crowd. Correct. >> Yes. >> Had heard a shot fired. Correct. >> Um that at that moment I don't know that I knew that. >> But you know it as of today. >> Sure. I know. >> Read their affidavit. >> Sure. >> Which which says that? >> Well, I I knew it. I knew it. um once all of that information was disclosed to me. >> Okay. And that they had to uh with many many many hundreds of other people run for cover and get out of the open space where they were. Correct. >> Yeah. I don't know that they had to, but >> Well, you've seen the video of you probably seen many videos of that day, right? >> Yes. Yes. >> And weren't there law enforcement officers basically directing everybody to leave the open space so that they could >> I don't know that I remember seeing those videos of the students or attendees leaving. Um I mean I know that they left. I know that they ran away. Um I'm just what we learned later is that the shooter left immediately after the shot. So, >> but at the time of a shooting, you don't know how many shooters there are, if there's going to be followup, if there are explosive devices, like all those things, right? >> Sure. >> Um Okay. So, let me ask ask you these questions about um um well, instead of giving you a headline, I'll just ask the question. Um, once you had all of the information about prosecutor A's child's experience. Okay. >> Mhm. >> Um, what they saw, what they heard, what happened to them, the fact that they were separated from their personal property, all those things. Okay. Um, what I'm hearing you say is you never really discussed that with prosecutor A and this family. No, I mean I did discuss I don't know if it was day two or day three. Um law enforcement was there on the day of the shooting the next day and I think into Thursday or Friday. I I don't remember exactly which day. And at some point I was told that prosecutor A's child left her back left the back there. >> Okay. Um, so, so, but if you never really talked about it with prosecutor a about the impact on his child and the family, >> I I didn't say that. Um, not not on the day of or I mean in the intervening time, he reported a couple of times that he talked to his child and said that she was doing fine. She she reported to him Did you ever ask him? Well, what about you? I mean, your kid was at this I didn't. Um, [snorts] anybody in the attorney general's office concerning whether prosecutor's a [clears throat] child's experience raised a um potential conflict of interest for your office? >> No, that's what I did for 23 years with with prosecutors is consult on that. And so I didn't feel a need to to go to those folks. I mean, I know how to try to figure that out. So when you're when one of your responsibilities in the attorney general's office was to consult about um ethical issues, >> different matters, different it could be a variety of things. >> Okay. And I mean, if you're talking about ethical issues in particular, um I don't know that the criminal appeals division um was was the right folks to to consult, but I'm not even sure of who from the attorney general's office would. So, >> okay. But you worked in the attorney general's office for a couple decades, right? >> Yeah. And what you're saying is that um in your role as an appellet lawyer for the state, >> you would talk to prosecutors, I guess it's somewhat more informally about ethical issues. >> Yeah. Every once in a while. Yeah. >> Sure. >> And um so my question is whether you reached out to anybody in the attorney general's office about this particular issue. >> No. >> Okay. Um, did you and when I say you, I really mean you or anybody in your office on your behalf. Okay. >> Okay. Because it's because you're the chief prosecutor, right? So when I say you, I mean you and >> Okay. >> And people who work for you. What about the Utah State Bar? >> No. >> I mean, they give ethics guidance to attorneys on all kinds of issues, right? >> Yes. >> Okay. But no, no reach out. um other county attorneys in Utah, in other words, your colleagues who are elected um chief prosecutors in their counties. Did you discuss this with any of them? >> No. >> Are you a member of organizations of what I'll call chief prosecutors? >> I'm a member of the Utah County and District Attorneys Association. >> Okay. um UCDAA. I'm actually the president of of that organization. I'm a member of SWAP, which is the statewide association of public attorneys and prosecutors. I'm the I'm actually the president-elect uh of that organization. That's a lobbying organization. >> Okay. And do um these associations um have any mechanism for providing ethical guidance to their members? >> No, I mean when we have questions we may shoot out an email and ask about things. >> Did you do that in this? >> No, >> I I consulted no one other than my team. >> Okay. I'm going to ask you three more categories just to be clear. Okay. >> Did you reach out to any law professors who >> report to be ethics experts? >> No. >> Did you speak with any judicial officers >> Court get the question and the answer. >> Oh, there you >> Well, I I I I just said that I have talked to no one other than my team. So, >> okay. >> [snorts] >> Did you ever discuss with prosecutor A whether his child should or should not be interviewed by law enforcement? Um, no. >> Did Are you aware of it? >> Maybe. I don't I don't remember. I Okay, >> so that may be important. Do you want to take a minute to think about that? >> What's that? >> That may be important. Would you like to take a moment to think about it? >> I I don't remember. Um, the brief that you filed on behalf of the state. I'm sorry. The opposition to the motion has a couple affidavit attached to it, right? >> Yes. >> Okay. And one of those is the affidavit of Cole Christensen. >> Yes. >> And um which for the court's benefit in the record is addendum C to the opposition. Um, special agent Christensen writes in his um, affidavit that you and he in mid December, so that's after the motion to disqualify was filed. >> Yes. >> Went to UVU and basically conducted some observations and measurements, right? >> Yeah, he was investigating that part. I did go with him because it involved our it doesn't involve trial. It's never going to come out in trial. Um so I did go there um and assisted him, but he also had another officer there so that anything that I did could be corroborated by that officer. >> Okay. But isn't it fair to say that basically what happened there is you said generally Mr. Robinson's defense council I want to have some measurements done because I want to figure out what risks there were to prosecutor A's child based on where they were and where you believe the shooter was. Right. Yeah, we we have very good evidence of where the shooter was. >> Okay. So, I want to >> and it was based on prosecutor A's child indicated where the location that that uh they were use they um and and based on the evidence of where the shooter was. So, we wanted to confirm that conf. Now, she did obviously where the shooter was, but we wanted to confirm based on we knew where the shooter was. And so, we wanted to confirm that um that they weren't in the line of fire. and and that was important because that's critical to the to the state's case is whether or not they're in someone's in the line of fire. >> Okay. So, there's a few things that I want to try to make sure I cover. And if your honor, if there's any point in time where the court or staff need a break, just tell me because I can break whenever whenever the court needs that. >> We we'll be taking a break uh shortly, but I I appreciate that. and and if any of the parties do need a break, please indicate it as well. I want to be respectful to all parties. >> Thank you. So, the first thing I want to knew that the defense had filed this motion to disqualify based on the relationship between prosecutor A and somebody who was at the rally >> um and had the experiences that the court has already heard about. And so you basically went out with a law enforcement officer and you did an investigation and um uh took a number of measurements. >> He did. Yes. >> Okay. But at your direction, right? Cuz you're the one >> I asked him to do that. Yes. >> Okay. Um, you you say in connection with that that there are some um uncontested issues in this case. >> Yes, >> that's a term you use in your brief, right? I I'm sure sure that you will tell me where they're not where where they're uh not contested, but >> Well, every issue is contested, right? >> I mean, the Okay, go ahead. >> I'm not trying to have a um argument because the court reporter doesn't like >> I stop. I'm not >> And I'm bad at that, too, and I have been for a very long time. But your uh measurements as documented in um Mr. Christensen's affidavit, special agent Christensen's affidavit are of things that you say are uncontested, but um I just want to make sure. So can can I clarify that I never said that the measurements were not contested. I said what was not contested is the fact of the things that she could that uh child A could testify to. That's what I was referring to is what's not contested. Child A as demonstrated in the affidavit can testify that child A was there that her uh child A's location um and what the crowd did, what she did, and then what she ran in. That's what's uncontested. >> But aren't these also uncontested things which you contested issues which you seem to suggest to the court or uncontested. And that is that the shooter was on the roof. >> No, no, I didn't say that was uncontested. I said what she could testify to is uncontested. And if if there was something different than that, that's certainly what I meant. I understand that all those other you've made yourself a witness to evidence that you've used to try to advocate to the court that there's no conflict of interest, right? I mean, you basically, even though you're representing the state, you went out and you participated in a um what you hope is is a is a systematic way to measure whether prosecutor A's daughter was in a line of sight from the place where the state alleges the shooter. Right. >> Sure. >> Okay. But as far as making myself a witness, I was careful to make sure that there was Cole Christensen and then an officer from UVU. Um, if you look at the case law, um, the case law says that prosecutors can participate in these interviews and so forth. What we do is make sure that someone else is there so that we don't have to testify. And the defense can't force the the prosecutor to testify under those circumstances. That's the case law. And it won't surprise you that competent defense council have the same practice. We don't interview witnesses without investigators present. >> Right. >> Um and and this was no different than that. >> Understood. Okay, I do want to address another aspect of this um line of fire situation. Okay, so it's the state's theory of the case, if I may, um that the shooter was on a rooftop, correct? >> Yes. >> Okay. And what's the name of the building that the state believes the shooter was on? >> I don't recall. I Okay. And so these measurements that are in special agent Christensen's declaration, you're saying were designed to basically, if I may, I'm not trying to put words in your mouth, rule out whether the child of prosecutor A is um in some ways a victim of this incident. >> Not nec not as far as a victim. We already understood that based on where the buildings were that uh the child was not in that line of fire but we wanted to provide the measurements for this motion. So what is the significance of the measurement? What is the significance of whether the child of prosecutor A was or was not in a physical position where they could have been shot? What is the sign? >> The sign the the aggravator as you know is that we're alleging that um when the shooter killed Charlie Kirk that he placed others in grave risk of death. And you've >> so anybody within that zone, if you will, was placed in grave risk of death. >> Okay. And so you've now gone out and you've done these measurements from the place where you believe the shooter was. And anybody who can't whose positioning at the rally, there's no line of sight. You're basically excluding all of those people from being um among those uh referenced by that aggravator. >> That's our understanding. We have a very difficult time proving that others beyond that point were also in that line of danger. I mean, we could I guess we could make the argument, but um that would be difficult to prove. And so is it your position that because this adult child would not fall within the category of people um connection between those people and the prosecution. >> Not not the crime. I mean again I mean depending on whether again I rely on law enforcement to to provide us with whe whether they have something helpful or not. Um, we were able to determine based on what child uh the prosecutor's child there was nothing useful. There was no need to provide anything. I mean, we make those determinations when they provide it to us all the time. >> Um, did you work with um special agent Christensen on his declaration >> on on what? No. On his declaration, >> I didn't. >> Did somebody else? >> Yes. >> Another one of the members of your prosecution team. >> That's generally the practice. >> Okay. >> Was it prosecutor A? >> No. >> Okay. Now, we've also um I should say you also filed with the court addendum B to your opposition, which is the affidavit of the child of prosecutor A. >> Right. And um this person is a a young adult who um is a student at the university, right, at UVU? >> I >> Yes. Okay. >> That that's what I'm told. >> Okay. >> I have no >> Did you speak with this adult child in connection with the preparation of their affidavit? >> I did not. >> Do you know who did? >> I do. >> Who was that? >> It was Mr. McBride. >> Okay. And do you know whether Mr. McBride consulted at all with prosecutor A about that. >> Um I I couldn't answer that. I don't know. >> Okay. >> Did you read the affidavit? >> Of course. I wrote the I wrote the opposition. I better read the affidavit. >> Did you have any Did you play any role in the shaping of the affidavit in any way? >> No. >> It was just given to you. Here's the >> Well, I mean, we were aware of what the student I'm going to call student now. >> Um, we were aware with what the student had had said as far as what the student was aware of. And so, we obviously as I I I started writing based on what my understanding of that was. And I'm sure that Mr. McBride covered those areas to >> Are you saying that the affidavit followed from your briefing and your briefing was based on your >> No, that that's not it. My affid my briefing was based on what the information that the student provided. And so to that extent, I'm sure when Mr. McBride talked to the student that he would cover those things. >> Okay. So, what I'm missing is where did you get the information about what the student experienced if you had not seen the affidavit? >> That was from the the prosecutor that is the parent of that. >> Okay. So, prosecutor A told you this is what happened with my kid, >> right? I mean, I think that's pretty established. All right, Mr. Novak, this might be a good time to take a brief break. >> Whatever works for and and just um not meaning to pressure you, I'm just trying to anticipate how much time much more time for questions you have for Mr. Grant. Just for housekeeping purposes, um it's 4:06 according to this monitor. Oh, that's not right. It's 5:00. Um the monitor says it's 4:06. That must be some time zone that somebody else lives in. um >> at least another 20 minutes. >> All right. Uh so we'll take a 10 to 15 minute break. Um and perhaps council can confer in regards to housekeeping how we wish to address the remainder of the witnesses whether in a setting today or a different setting. I'm not saying which way, but if you wouldn't mind consulting uh and we can discuss that briefly when the recess is over. >> That's fine. Do you [clears throat] want to give us some guidance on what works for the court and its staff because like I didn't know it was five o'clock but it is >> right. Um let go ahead and discuss that and I'll talk with staff as well that gives me time to speak with them and then we can confer >> on with that. All right. We'll be in a brief recess for 10 to 15 minutes. There's actually a consensus among council and Mr. Gray um we discussed this with the court staff who didn't object that since it's 5:20 on a Friday, we should recess now and reconvene on February 3rd as previously scheduled. We have a hearing that day if that's works for the court. Um, so that's what we think we should do. >> All right. The uh and and so that that that was the consensus I was leaning toward. However, I think it may be uh appropriate to finish out this testimony and be done with that. That way when we start up, we're starting with a new witness. It's a little bit awkward to break especially over this space of time because he won't be able to talk. he'll be under on the stand and he can't talk to anybody about his potential testimony because he's he's under oath and he's still technically on the stand until February 3rd and that that could create complications given the nature of his profession in the office. >> I assume that the state has some questions for their witness and then I would >> Oh, I see. >> We're probably an hour and a half adding everything up. >> I You know what? I always You're right. All right. All right. Well, um, that makes sense. And and and to all parties, that's the the consensus, the stipulation. >> Yes. >> To the state. All right. Thank you. >> And Mr. Gray did tell us that he has a um a flight later this evening. And just for total transparency, Mr. Burton and I have a flight to California, which boards in two hours from Salt Lake. Your honor, obviously we're not asking that he not be allowed to communicate with the county attorney's office if they just don't discuss his testimony. That'll be sufficient as officers of the court. >> I appreciate that guidance. I just want to make that clear. It is a little bit tricky when somebody's on the stand and they come off the stand. >> All right. Well, I believe we do have a a hearing set for February 3rd at 1:00. Does that comport with everyone's notes? >> Yes. Yes. >> And we'll go ahead and reconvene at that time and continue this hearing and uh we can take it from there. Does any party uh wish the benefit of the record? >> I don't think we need to ask the court to order the witnesses to return or serve new subpoenas. >> Uh yeah. No, I think we're I think the witnesses are planning on attending to that hearing as well. We'll make sure that's >> We don't need the record for that. If we are told we need a new subpoena for any reason, we'll do it. >> All right. Thank you. >> Thank you, council. I appreciate your hard work today. Uh I wish you a good afternoon and a weekend as well as to Mr. Robinson. Court is in recess.