Court Proceeding — Tyler Robinson's Defense Seeks Restricted Access to Evidence and Media Restrictions | COURT TV

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Court Proceeding — Tyler Robinson's Defense Seeks Restricted Access to Evidence and Media Restrictions | COURT TV
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=zJKjeI5bWSs) — verbatim ASR, not a certified court transcript.

I'm calling case number 251 501576 State of Utah versus Tyler James Robinson. Counsel, please enter your appearances. >> Chad Rubner, Ryan McBride, Chris Ballard for the state. >> Good morning to the prosecution. >> Morning your honor, Richard Novak, Stacy Viscer and Michael Bird present in court with Mr. Robinson and Ms. Nester is appearing by WebEx. >> Good morning to defense. Good morning All right. Uh before we begin, I want to address first issue which is the issue of the December 11th transcripts. I'd appreciate an update as to the status of any proposed redactions. We've talked about this before, but I want to address it and see when I'm at expect those. Okay, so counsel, sorry. Let me begin. Uh in an abundance of caution, we have turned off the microphones at the desks, so nothing can be captured. You have to come to the lectern. Uh so uh doing that to to ensure uh to be cautious. Ms. Viscer. >> Uh your honor, I actually think the court reporter filed the transcripts with the court last night. Uh the redacted version, fully redacted, so I believe that's taken care of. >> All right. Well, that's good to know. Uh Mr. Ballard. >> Yes, sir. >> And you have to come forward. Sorry. >> Just going going to uh agree that that's my understanding is that's been filed. We've agreed on the redactions, and so that should be taken care of. Thank you. All right. Uh I wish to address media coverage and related considerations as it relates to this hearing. The court wishes to remind all parties that the February 25th, 2026 standing decorum order is in effect and will be enforced to protect the constitutional rights of all parties while preserving the integrity, fairness, and orderly conduct of these proceedings. We will also ask counsel to be mindful of that the microphones, and we've turned off the microphones at your counsel table, but uh just to be mindful that microphones, even from the lectern, can pick up conversations. Uh counsel may wish to consider using screen protectors on laptops and taking respon- reasonable steps, such as covering one's mouth when speaking, to avoid the inadvertent capture of private communications, whether by camera, microphone, or by those present in the courtroom. Third, the court would wishes to address the camera operator and still photographer. And so, I respectfully ask Ms. Sites and Mr. Dolan if you would step forward to Thank you. Uh this is not to intended to cause you any embarrassment or discomfort. I simply want to ensure that the expectations for today's proceedings are clear. Um So, turning to Ms. Sites first, during today's hearing, what is your primary role? >> Still photography, pool photographer. >> All right. Mr. Dolan? >> Uh video and pool video. >> Have you read the court's February 25th, 2026 standing decorum order mis-sites. >> I have. >> Mr. Dolan. >> I have also. >> Thank you. And so, do you understand the guidelines as they relate to your responsibilities as outlined in the decorum order? >> I do. >> Thank you. >> I also do. >> Thank you. Do you need any additional time to review the order or to reposition yourself or the camera to ensure full compliance? >> I do not. >> Thank you. Do you anticipate any difficulty complying with the order? >> I don't. >> I do not either. >> All right. Thank you to you both. >> Thanks. >> And I appreciate your cooperation today and uh that we can make this proceeding move forward smoothly. Uh first, I want to turn to the state as it relates to discovery and just want to see if we could have a just a brief update. Mr. Gruenander. >> Thank you, Judge. Um yes, um for the record, uh we dis- sent another batch of discovery to the defense as recently as last night. As far as the files that we in our possession, we have provided 93.9% of those files to the defense at this point. We also, for the court's information, met with the defense yesterday and uh part of the discussion uh centered on discovery. And we hand-delivered to them a hard drive containing information with respect to digital devices that have been seized as part of the investigation and analysis done uh by the RCFL, which is the Regional Computer Forensics Lab. That was a 24 terabyte hard drive. I don't imagine it was entirely full, but there was a a large amount of information that was provided there. Um as I said, we met and talked about discovery. We talked about some of our expectations. We We candidly still waiting for some information. Um we had a a meeting yesterday morning with some of our uh federal law enforcement partners, the FBI, uh the ATF, and talked about this issue of discovery and and impressed upon them the need to have everything in their possession. Um we were assured that it's coming quickly. Um the ATF, for example, we expect to have their entire case file within the next week or so that we will disseminate to the defense. Um and we believe that that will have um all of the underlying data um from in its original form that the defense can then use for their purposes with their experts. Um >> We are in the process also of reaching out to all of the local law enforcement agencies to ensure that they are in possession of all of the the body camera footage from that day as well as other information and we will continue to work on that. Um as far as our um discussions yesterday as well, the probably the primary purpose of the meeting with the defense yesterday was to forecast what we anticipated presenting at the preliminary hearing. That's currently scheduled for May. Um as far as uh the individuals that will testify as well as exhibits, we will be preparing, while it's not required under the rules, we are going to prepare a witness list and an exhibit list that we'll disseminate to the defense uh with Bates numbers so that it could be easily found in the case file. Um >> Do you have your phone with you? >> We are also helping the defense to facilitate a meeting for them to examine the physical evidence that's in the possession of SBI. We anticipate that probably happening next month uh when we're we're back here. Um I think April 17th. Uh and then lastly, we did also coordinate a meeting to meet with the defense today this afternoon sometime to walk the UVU campus. Um, so that we can they can take a look at the scene. >> Okay. Thank you, Mr. Grenander. I appreciate uh the details. Does any party wish the benefit of the record as it relates to the discovery? Mr. Novak. >> Richard Novak for Mr. Robinson. Um, we can either address this now or obviously later this morning um as the court wishes, but there's a um connection between the discovery that we have not yet received that the Utah County Attorney's Office has not yet received and going back one layer further, the State Bureau of Investigation has not received, which is directly related to our ability to meaningfully prepare for the preliminary hearing. >> Okay. >> And that is what I will generally describe as the federal forensic files. We're talking both about case files as the ATF calls it and data files from both agencies, which relate directly to forensic analyses, which led to forensic opinions, which it appears the state intends to move into evidence at the prelim through 1102, but we don't have much I should say most of the underlying data. Um, we don't have data that we've been able to give our experts on stuff that relates to those opinions. So, um we did meet and confer after yesterday's meeting about the fact that we need to ask this court to postpone the preliminary hearing for that reason. We can put it in writing if we need to do this by written motion. We can discuss it in more detail today. Um, but it's not little tiny bits of witness statements here and there and reports and some photographs that we're missing. From our perspective, this is core fundamental data that underlies expert opinions that the state wants the court to consider and we have no ability to either get our own expert opinions or meaningfully cross-examine um the state's witnesses or frankly even call the forensic experts themselves because we have a right to put on our own witnesses because we don't have their data. Um and our experts can't advise us on the data if if we don't have the data. So, we can't we can't meaningfully cross-examine, we can't meaningfully examine the state's forensic experts if the state decided to call them as live witnesses as opposed to a 311.2 process and we can't be prepared to put on our own witnesses because they don't have the data. So, I don't want to pre-argue it unless the court wants to get to the merits of that. I did go back and I looked at the court's comments back when the court set the May preliminary hearing date in December. Um and I don't think I need to read back to the court what the court said. >> No. >> Um that's our concern. So, we can either from our perspective discuss what is a realistic preliminary hearing date based on the representations that we will get certain data in the next couple weeks which I know and I there's total good faith from the state council. When they said they met with the federal partners to impress upon them, I know what that means. That means they've done everything they can do but there are federal agencies which haven't produced fundamental forensic data and files underlying very um important expert reports. So, we have the reports, but not the data. >> Sure. >> Um so, we can either address that later today after the court hears the argument on the pending motions. Um we can move in writing and the court could set a briefing schedule for that. We are cognizant of the fact that at the last hearing the court said if I may we've got a really busy calendar. We don't have any openings. Um so, I wanted to we wanted to bring this to the court's attention today because if we just let this go and we file a motion and then there's a response and then there's a reply and then I don't know when that hearing is going to be because of the court's calendar, that preliminary hearing date may be further out than these preparation issues require. Because of the court's calendar. >> Now, I appreciate that. I appreciate that heads-up. Um and we'll revisit it at the end of this hearing. I, you know, it's hope springs eternal in regards to discovery when it's passed over and and obviously the defense needs the necessary time to prepare as as provided uh and the constitutional rights allow. And so, I'm I'm cognizant of that. So, I appreciate the heads-up and I appreciate the work between the parties to to move this forward. Let's revisit that at the end of the today's hearing. >> Absolutely. Thank you, Mr. >> All right. Well, let's turn to the matter that's before us as uh this is the defense's motion. I will turn to you uh for your uh arguments and And just as a heads-up, I'm battling a cold, so if I take a drink of my water, it's to it's to uh spare you from coughing or overly rough voice. >> No problem. >> sir. >> Yes, thank you. Um I will be addressing the motion to classify the January 9th motion, kind of taking these in chronological order here. Um I know this court is kind of drowning in First Amendment briefing, so I don't want to delve too much into that aspect. Um certainly I'm open to answering any questions the court has, but I kind of want to start with um just the very base level, we are asking the court to classify this motion and the attachments as private under rule of Um the reason that we are asking the court to do this fundamentally is because we believe that the release of this motion and the evidence has uh a reasonable probability of impacting our ability eventually to impanel an impartial jury and for our client to have a reliable penalty phase, should that occur. I want to start kind of with a little bit of a procedural history here. Um back in October, November, early in the case, the defense and the prosecution met and conferred about how uh the government would preserve evidence in this case. And when the government uh the prosecution and any law enforcement agencies sought to conduct testing that might impact the evidence in particular ways, they were to provide us notice. And if we could not come to an agreement about that, we are required to file something with the court to ensure that the testing doesn't move forward. That's what occurred here. In December, on December 22nd, we received notice from the state. They filed a certificate of service for that notice. And they also informed us in the correspondence essentially that they were not filing the notice because they were concerned about their ethical considerations under Utah Rule of Professional Conduct 3.6. Which basically says we should avoid making public comments that influence a case. And the comment specifically talk about particular evidence that might impact a case, more likely to impact a case. We agreed with this. We did try to come to a resolution, but ultimately at the end of the day we needed to preserve the issue. So, in order to preserve the issue, we had to file something with the court and honestly there was a lot of back and forth about whether or not we could file it publicly, how we wanted to do that because we have the same concern that the state voiced in that initial email. Are we putting something into the public sphere that will inappropriately enter into the minds of potential jurors and impact the case? Ultimately, we decided that we have two obligations. One is to preserve the issue. Two ensure our client's right to due process and his right to effective assistance of counsel needed to be preserved. We needed to file this and put the court on notice in a way that this court can make a ruling on it should that become necessary. And I will say, Your Honor, that we continue to work on this issue with the state. We're still negotiating it. We are not asking for a hearing on the underlying motion because we think we can likely resolve it. It was almost to the point where we contemplated potentially asking to withdraw the motion, but of course that doesn't really cure the record issue. So, we are here. Um in addition to that, the other obligation, of course, is to ensure our client receives a fair trial. So, we filed a motion classify. Um when we filed the motion classify, we did notify the state, and they took a slightly different position. They basically said, "Well, now that you filed it, we don't have the same concerns under rule 3.6." I think those concerns remain. Um I don't want to talk about the evidence specifically in a public setting. So, I'm going to choose my words carefully and maybe read a little bit more than I normally would. >> Sure. >> Um but the evidence is important enough. It is important. It is evidence that will be at issue in the case. But it is also in process, which is the whole point of the underlying motion, right? It's in process. There is more to be done. There is more the state wants to do with that evidence. So, it is not in a place, in a position, where we are going to be arguing about admissibility because it's not done. Right? So, what we're talking about is releasing preliminary evidence into the public sphere that has the potential to impact jurors. And it is important enough that we are concerned that it will sway people's opinions one way or the other. And I want to make clear that our concern here with selecting an impartial jury really it goes both ways, whether the evidence is good for my client or bad for our client. Whatever it is, it makes it harder to find impartial jurors if they are entrenched in an opinion about our client's guilt or innocence, either way. So, we don't want to be putting out evidence as the defense that will sway the public opinion. We've already told the court we're not fighting this case in the public. We're not trying to sway the public in favor of our client's innocence. That's not So, um I also want to address one issue that I've seen generally, um arising in this case, and I think it deserves some comment. There seems to be an idea that flooding the public sphere with information or evidence from this courtroom will somehow dispel conspiracy theories or shift public narrative. That in and of itself is concerning to the defense. No one should be worried about that. All we should be worried about is protecting what happens in this courtroom. We believe that preemptively releasing evidence that we needed to provide to this court in order for this court to make an is just one of those actions, is one of those things that will negatively impact our ability to have a fair proceeding for our client. So, we are asking that the motion and the evidence be classified as private, that this court consider our client's unqualified right to a fair trial, and a reliable penalty phase should overcome the qualified right of access at this point. We understand things may change. This evidence may come in in other ways at other points in the proceedings like a preliminary hearing or when we actually challenge the admissibility of evidence. But, at this preliminary stage, we believe this is the appropriate course to take to protect the proceedings and our client's rights. Does the court have any questions for me? >> Well, I do, but I'm going to wait till all of um defense has presented. Am I Is there another attorney that's going to be presenting? >> Yes. Yes, Mr. Burt is going to present on the other motions to classify and the motion to close the hearing in part on April 17th if the court is prepared to hear that. >> All right. Yeah, I I want to hear all of it and then I'll have questions for you all. Thank you, Mr. >> Morning, Your Honor. >> Good morning. >> Michael Burt for Mr. Robinson. I'm going to be addressing the motion to classify the what I'll call the camera motion, the motion to restrict electronic media. Um so, there's a motion to classify that motion as private. And then there's a motion that was recently filed to close the uh portions, select portions of the hearing that is scheduled for April 17th. >> Mr. Burt, just for a clarity, would you mind uh referencing the docket number of these motions and >> Certainly. >> And for Ms. Ms. Rowe as well. I just want to make sure we're tying it well in the record. So, >> Yes. >> because sometimes we use different terms about talking about the motions and if we use the docket number uh in conjunction with that, it just clarifies it for everyone's benefit. And I didn't mean to catch you off guard or >> No, not at all, Your Honor. So, let me take a chronological uh the motion to classify, motion to exclude still photo photographers, TV cameras, and microphones from the courtroom as private. That's docket number 310. >> Thank you. >> Um motion to close >> Thank you. >> And there are, of course, uh oppositions to those motions. If the court would like, I can outline what those are. >> No, I'll I'll have the other side. I I don't don't want to deprive them the opportunity of doing the same thing as you just did. >> Sure. So, in in all, there's a lot of uh paperwork in front of the court. And obviously, I'm not going to repeat everything in there. But one of the cases that's cited by all parties, I think, is the Utah um Supreme Court opinion in in Kearns Tribune uh Corporation, which is 685 Pacific 2d 515. And there are a number of key points in that opinion that I'd like to focus the court's attention on. And as the court may recall, the issue there was whether there was a a public right of access to a preliminary hearing. And one principle the court sets forth in the opinion is at page 519 where the court says, "We believe the issue {quote} we believe the issue should turn on the precise nature of the proceedings in question. We limit our review to cases involving preliminary hearings." And then the court proceeds to uh explore the nature of a preliminary hearing and decides that because of the nature of that preliminary hearing, uh it, like the trial itself, should be classified as one that the press and the public have a right of access to. And the key portion of that discussion is that uh the following page where the court says, "Utah's preliminary hearing is different from the preliminary hearing in some other jurisdiction in that it does not include hearings on motions to suppress evidence. Rule 7D1 provides and then it quotes the rule." And the court goes on and says, "As a result, the added risk of prejudice through pretrial disclosure of evidence targeted in a motion to suppress are not present in Utah's preliminary hearing. If the prosecution elected to try to use such in the preliminary hearing in advance of a ruling on whether it should be suppressed, the defendant could seek special measures to avoid its public disclosure." So there I think the court is signaling that in a in a preliminary hearing context, if an issue of inadmissible evidence comes in, uh the appropriate procedure is for the defense to seek closure of at least that portion of the hearing where the evidence is going to be discussed. Um so the first point I wanted to make is court looking at the procedure we're asking to close a portion of. And that is the motion to uh preclude further electronic media coverage of the case. It is unlike a preliminary hearing in the sense that that hearing on the 17th is not going to include a motion to suppress evidence, obviously. It's going to include a discussion of the nature and extent of prejudicial pretrial publicity. And I emphasize prejudicial pretrial publicity because the case has defined that term um as a term of art. It does not include all pretrial publicity. We are not complaining about all pretrial publicity. We're complaining in that motion to close the hearing which is uh the motion to prevent further electronic coverage. That's document 305. Uh our only focus there is on what the courts have characterized as prejudicial pretrial publicity. And that uh categorization includes the same type of information that rule 3.6 prohibits lawyers from commenting upon. Things like confessions. Things like evidence before it's been admitted. Personal opinions as to guilt or personal opinions as to the appropriate penalty. Evidence which is clearly inadmissible. Those are the categories of prejudicial pretrial information that the courts and the rule focuses on. So our motion to preclude further electronic coverage details uh and what the media says uh um in too much detail. Uh the kinds of prejudicial pretrial publicity that that have characterized this case so far. So, the hearing and and the standards that the court um is governed by under the under the rulings that we cite, particularly the James case, the Utah Supreme Court case says, "In deciding whether there's a reasonable likelihood of prejudicial pretrial publicity, the court has to consider a number of factors." And one of those factors, uh the size of the community, uh the nature and extent of the pretrial publicity. So, as part of our burden, we have to show the court uh through evidence what is the nature and extent of the prejudicial pretrial publicity. And by definition, that prejudicial pretrial publicity is inadmissible at trial. So, we're not dealing with a situation where the court is not yet ruled on a motion to suppress. That issue comes up in relation to the other motion that Ms. Visser just talked to you about. We're dealing with a motion that by definition is putting forth in front of the court evidence which is clearly inadmissible at the trial of this case. Confessions, alleged confessions, uh opinions and statements by uh Ms. Kirk, statements by the President of the United States, statements, opinions by the Vice President, by the Governor, by the prosecution, by law enforcement officials, all of that prejudicial pretrial publicity is by definition inadmissible evidence. So, in that kind of a hearing, uh is that the type of hearing that we're going to hold on the 17th that should be subject to a right of access, the first issue which uh Kern says the court should consider. And and my argument to the court is that it's not it's not a traditional uh procedure such as a trial or preliminary hearing where courts have recognized a right of access. But even if there is any sort of right of access to a hearing on whether the media electronic media should be excluded. The nature of that hearing has to be considered. And as Kern dictates. I think the best description of the type of hearing we're talking about on the 17th is discussed in by the US Supreme Court in Estes versus State of Texas, which we cite in our 305 pleading. In that case like this one there was extensive pre-trial publicity. Prejudicial pre-trial publicity. And in that case like this one there was a motion to exclude further coverage by way of electronic media. And the court addressed the issue of whether that type of a hearing is something that in itself can give rise to prejudicial pre-trial publicity because of the fact that the evidence that's being brought forth during that hearing is going to be by definition prejudicial. And the court in Estes, this is Judge Clark's opinion, says as it page 535 of the Estes opinion it is contended that this two-day pre-trial hearing, that is the hearing to exclude the press cannot be considered in determining the question before us. And the question before them is whether Mr. Estes was deprived of his right federal constitutional right to a fair trial. And the court goes on, we cannot agree. Pre-trial can create a major problem for the defendant in a criminal case. Indeed, it may be more harmful than publicity during the trial for may well set the community opinion as to guilt or innocence. Though the September hearing dealt with the motions to prohibit television coverage and to postpone the trial, they are unquestionably relevant to the issue before us. All of this two-day affair was highly publicized and could only have impressed those present and also the community at large with the notorious character of the petitioner as well as of the proceedings. The trial witnesses present at the hearing as well as the original jury panel were undoubtedly made aware of the peculiar public importance of this case by the press and television coverage being provided and by the fact that they themselves were televised live and their pictures re-broadcast on the evening show. So, that kind of captures why we had to bring this motion because we don't want to be in a position of inflicting another wound on Mr. Robinson's right to a fair and impartial jury by re-publicizing either net right now in arguing this motion or on the 17th when the court hears from us what the nature and extent of that pre-trial publicity is. >> Well, let me stop you right there, Burton. Mr. Burton, so you you cite the Estes case, but Estes was overruled by Chandler v. Florida because in Estes there was an assumption of prejudice. But in Chandler, it required uh the defense prove actual prejudice. And And so, it it it changed a little bit. Can you talk a little bit about that? >> Yeah, certainly. The The Chandler court court, first of all, uh was asked to, but did not overrule uh Estes. But, what it did clarify, as the court just indicated, is that if the defendant wants to prove up a fair trial federal fair trial violation, it's his burden to prove prejudice. And the Estes court uh outlines that that can be done through an evidentiary hearing at which uh the defense would have the burden of showing again, the factors under the James case, nature and extent of publicity, how it prejudiced the defense, whether there are reasonable alternatives. That's going to be the very purpose of the hearing to comply with Chandler's mandate that we have the burden to prove that prejudice. And so, we're going to be taking on that burden, and we think uh well establishing that we're entitled to the relief that we seek, which is some restriction on the type of prejudicial information that is flowing uh not only from the electronic media, but that electronic media being amplified by the uh widespread use of social media, which we discussed at length in the motion. I'm not going to get into the merits of the motion itself, but to address the concern uh at the court had about, well, if really Estes is no longer good law, Estes is cited favorably in Chandler. It's cited favorably in Hollingsworth versus Perry, which is the Supreme Court's most recent discussion of cameras in the courtroom. And the court is correct that Chandler put a gloss on it that we have to show there is no presumption of prejudice, but there is a presumption of prejudice in regard to certain types of prejudicial pretrial publicity. And the the clearest holding to that in that regard is the Schilling case. Schilling says there is no presumption of prejudice unless certain categories that the courts have recognized as prejudicial are proven and then it's inherently prejudicial. And the example that Schilling sites is publicity about a confession. And it sites back to the Wilbert Rideau case, Rideau versus Louisiana where the court reversed the conviction because the defendant's confession was broadcast prior to the trial. So we have that type of prejudicial pretrial publicity in this case and it's outlined in the motion. And so yes, if you don't have those categories of prejudicial pretrial publicity, you have to prove prejudice. But there are certain well-known categories that do give rise to a presumption of prejudice. And that's reflected also in rule 3.6 which says there's certain things lawyers should not be commenting about. And so we'll we'll show both that we have categories of prejudice that are recognized as presumptively prejudicial and we'll show that beyond that the overall picture of this case is one of extreme prejudicial pretrial publicity that justifies the kind of relief we're asking for. But how do we show that without re-inflicting the very harm that we're seeking to avoid here and that's the purpose of our motion. Um and and the main concern um is the tendency in this case for the press to first of all highlight all of the prejudicial information in virtual virtually every story they feature on the case, which has its genesis in the prosecution's initial press conference before the court imposed its uh publicity order. There was an extensive press conference which got got before the public a great deal of the kinds of evidence which rule 3 3.6 says should not be disclosed before the court had the occasion to enter that order. And then that evidence has been re-amplified, commented upon, uh ex- so-called experts have been brought in, lip readers, body language experts, all of that is outlined in the motion. The kinds of reiteration of this prejudice that we're most concerned about, the best example of that uh in document 344, which is the um reply brief on this closure issue. Uh at page six, there is a link to an article. And that article concerns a story by one of the media's clients in which they were supposedly reporting on a defense anticipated motion to modify the court's publicity order. And the story does not concern is the television story, and the court has to see it to understand what the what the issue is, but the story does not concern what the merits of the motion is. The story focuses on, let's repeat for our audience in a very dramatic fashion, all of the prejudicial statements made by uh politicians from the president on down uh characterizing Mr. Robinson as an animal, characterizing him as evil, characterizing him as deserving of the death penalty. And they string together all these quotes uh and rebroadcast them. And and that's the kind of coverage that's in I cite that as one example, one example. But if the court sat down and touched on all the links we have in the 305 motion, the court will see it's repeated over and over again. So, we don't want to be in that position of putting in front of the court uh all of this prejudicial information and having the press regurgitate it uh yet one more time uh and re-inflicting the wound that we're seeking to avoid. That same link to that same article is in document 305 at page uh 175. Um the media's answer which I'll discuss, but I think I first need to return for a minute to the Kearns case. Um To continue with the other points that I I wish to emphasize from that case. The third point from that case is the standard that governs what what we have to show in the court uh in the opinion says we we don't have to show a clear and present danger to Mr. Robinson's right to a fair trial, but a realistic likelihood of prejudice. That's That's the standard the court will apply. And if the court looks at the standard for excluding uh electronic media, it's similar, reasonable probability, reasonable likelihood of prejudice. That's That's the applicable standard the court will apply. And the court also outlines the procedure to be followed on the motion that we're conducting right now. That is the motion on the hearing of whether the proceeding should be closed. And the court says, "First, the hearing on the motion for closure should be open to the greatest extent possible." Referring to this hearing that we're conducting right now. Um And then the court says, "Second, if disclosure of the alleged prejudicial material is essential to the conduct of the hearing on the motion for closure, the court should first seek a voluntary agreement from the parties who wish to be present that they will not disclose the alleged prejudicial information until it until it is disclosed at the trial or the trial has concluded. Absent such an agreement, the court may close the courtroom in order to conduct in camera whatever proceedings cannot be conducted without disclosure of the allegedly prejudicial information. So, as I read that, the court's referring to the people presently in the audience who wish to be present during this hearing today. And that if they can't promise that they will not use uh information that I want to disclose in support of the motion today, then the court should conduct procedures in camera. Now, is it necessary for me to disclose to the court what my prejudicial information is? The media says in their motion um that they filed yesterday, which is I don't think I have a docket number for this, but it's entitled News Media's Memorandum in opposing motion to close portions of the hearing, which is filed on the 12th yesterday. I don't have the docket number. I'm sure the media does, if there is one. But, what they say is it's really not necessary for me to disclose to the court all the prejudicial information that we're relying on to justify moving to close because at page two they say, "If the defense does not want highlight certain information at the evidentiary hearing, it can choose not to. The information is already cited in the motion to ex- cluded, so the court can find it there." That would be a good solution except for the fact that the media is also opposing our request to keep the motion uh private. So, it doesn't do us any good to refer the court to all the prejudicial information in the motion if the court accepts the media's position that that motion in itself has to be disclosed to the to the press because if it is disclosed, they're going to take that motion and they're going to reiterate all the highlighted prejudicial information in that motion um and again defeat the very purpose of of filing the motion. Um a couple of other points that I wish to emphasize to One is in both the present motions that I'm talking about and the motions that Ms. Visser just uh The media and the state and and the state are in and the media are mini-mes of each other on this issue. Their pleadings are virtually identical, which calls into question why the media is even a part of this hearing. The court has not yet decided whether they have standing on this particular issue. And in your December ruling, you said that we were not obligated to file with the media the motions concerning restricting electronic media. In In their latest opposition to the closure motion, they discuss their standing. But one of the issues in standing is whether we need the voice not only of one media lawyer, but of two media lawyers um asserting the same position as that the state, one of the parties in this case, is asserting. So you you're being presented with three different lawyers arguing essentially the same uh position. And when the court denied intervention to the media in this case, uh it cited the uh Utah Supreme Court decision in Society of Professional Journalists of Utah versus Bullock. And there the court Utah Supreme Court addresses the issue of standing in detail. And one of the And there were multiple media agencies in that uh case. And one of the points the court makes is that although there multiple media agencies, they're all representing the exact same interest. That is the interest of the public in open access to the proceedings, which is, coincidentally, the same interest the state is asserting in reference to this motion. So, we do question whether the state even has standing, but >> You mean the press? >> I mean the press. I'm sorry. I misspoke. Uh but putting that aside, both the state and the um media stressed to the court that the court should uh deny the motion to close, should deny, obviously, the motion to restrict media access, and allow the kind of prejudicial publicity that has characterized the case to continue because we can all sort it out at trial through uh venue motions for change of venue, through uh voir dire, or motions to expand the uh jury pool. And I wanted that issue is addressed in detail in our uh underlying motion, the the lengthy motion. But just to highlight a couple of the points that we raised there, one of them is the Utah Supreme Court in a case that Ms. Nester is currently involved in, the Richins case, and it's cited in our motion, said that the court does not have the authority to expand the jury pool. So, that remedy is is not one the court can adopt. And in terms of the other remedies that are being suggested, neither the state nor the media sites what I think is a controlling case on this issue, which is uh Gentile versus State Bar of Nevada, which is 501 US 1030 discussed in our motion. But there Chief Justice Rehnquist writing for the court who is no fan of the criminal defendants uh said {quote} even if a fair trial can ultimately be ensured through voir dire, change of venue, or some other device, these measures entail serious cost to the system. Extensive voir dire may not be able to filter out all of the effects of pretrial publicity. And with increasingly widespread media coverage of criminal trials, a change of venue may not suffice to undo the effects of statements such as those made by petitioner. So I don't know how many capital cases that media lawyers have been involved in, but for the last 40-plus years, I've done nothing but those trials. And I've been involved with with using jury questionnaires, extensive individual sequestered voir dire, and and the fact of the matter is that voir dire is not an effective means in these cases. And to the extent it is effective in excluding people who hold prejudicial opinions, it calls into question other rights that are implicated. For instance, in a death penalty case, the jury has to be death qualified. Both those who would automatically impose death and those who would automatically impose life. And there's a lot of research. This is an issue which will be explored down the line, but there's a lot of research which shows that death process skews the panel uh uh as unrepresentative. It excludes people who are knowledgeable because they read this media coverage. It excludes the evidence shows uh minority groups, women, and people that normally would be included in a in a representative jury. So, yeah, you can voir dire jury on whether they've heard the President of the United States say that Mr. uh Mr. Robinson should be executed, and you can exclude that juror from serving on this case, but given the demographics of this county, you're going to be excluding a large portion of the population. And then when when you add to that the death qualification process, you no longer end up with a representative jury. You you you end up with what the US Supreme Court in Witherspoon versus Illinois uh called a group organized to return a death verdict, but it's not a representative jury. So, as Chief Justice Rehnquist said in his opinion, uh even if you employ these other means, they come with a great cost and and in this case a great constitutional cost. So, those are the uh main points I wanted to make to the court, and I hope I haven't repeated things that the court is already familiar with, but I'm certainly happy to answer any questions the court may have. >> Well, what I think I'm going to do is wait till uh the state makes their argument, and then I'll have questions. That's going to put the picture together for me. >> Great. >> And then have questions for all parties. I just want to make sure I hear it all, and I appreciate your arguments. >> Makes sense. Thank you, Your Honor. >> All right. >> Your Honor, Christopher Ballard on behalf of the state. Um first of all, let me just set the table for the court because I think there's a motion pending um the defendant didn't mention and that's the motion to classify the reply brief in support of the mo- their motion to exclude cameras. Would your Honor like that docket number? >> Yes. >> That That motion is docket number 400. So, as I understand it today, we've got four motions in front of the court. Three of them dealing with classifying documents that have been filed. First is the January 9th motion. Then we've got um a motion to classify the motion to exclude cameras, which Mr. Burt has just addressed. Uh a motion to classify the reply in support of that motion to exclude cameras, which I just mentioned is docket number 400. And then also a motion to close portions of the hearing in April uh that Mr. Burt has also addressed. Uh so, it's my understanding that we're here on those four motions. Would Would it be helpful for the court for me to give you the state's oppositions to those motions, the docket numbers for those? >> That would be helpful. >> Okay. Thank you. >> Sure. So, on the January 9th motion, uh On defendant's motion to classify the motion to exclude cameras, the state's opposition is docket number 346. On the defendant's motion to classify the reply supporting its motion to exclude cameras, the state's opposition is docket number 431. And then on the motion to close portions of the April hearing, the state's opposition is docket number 448. Thank you. I think part of the problem with this is on three of these motions, we don't have any requests to submit. Um there is a request to submit that that uh the media helpfully filed uh on the January 9th motion, and that lists all of the docket numbers of the relevant documents. There's been quite a few on that one. So, hopefully that's helpful for the court. >> Yes. >> Um Okay, the next thing I want to clarify is uh the standards that apply to these two different categories of motions. The defense here has not been very careful about articulating and applying the correct legal standards that govern these motions, because there are different standards that apply to classifying documents as opposed to closing a hearing. The The standard that applies to classifying documents is found in the Utah Rules of Judicial Administration. That's Rule 4-202. Uh point 0 Let's see. point 04. And but the standard that applies to closing a hearing is the state apply uh explained in its uh opposition is governed by case law, and that's the Kearns Tribune case and subsequent cases uh following that case. Um And then I also want to just clarify that Rule 3.6 of the Rules of Professional Conduct that's also been mentioned, that rule, while it might be relevant because it talks about pre-trial publicity, it does not govern any of these uh motions. Because rule 3.6 talks about lawyers making extrajudicial statements. We don't We're not concerned about any extrajudicial statements in any of these motions uh or in closing the hearing. Uh obviously, everything that's going to occur in the hearing is going to occur in court. Um and I also just wanted emphasize that rule 3.6 makes it clear that there's nothing improper about a lawyer commenting on information that's contained in a public record. A public record like the information that's filed in a criminal case. Um Now with respect to the first motion to classify defendant's January 9th motion that has to do with the evidence, the state did mention rule 3.6 when it uh submitted its notice of intent to test evidence. Um the state did that because the state recognizes that under rule 3.6, there can be concerns about statements that deal with evidence and testing and results of tests. Our hope we and I guess it's proved to be overly optimistic was that if we could do this without having to file something in court, we could get this issue resolved of whether we could go forward with the testing. We'd get that resolved, we wouldn't need to be here in a hearing like this today arguing about whether something needs to be public or private. We could uh hopefully move forward, get the testing done, and get us that much closer to trial. Uh the state was not suggesting that there would be anything improper about filing a motion and having this type of evidence uh listed in a public document. So, that was not the state's intent in originally mentioning mentioning rule 3.6. We were just recognizing that there could be concerns and hopefully uh in hopes of avoiding any kind of hearing like this and getting this this issue resolved as far as the testing goes um that we could move forward, but we find ourselves here. Now, the other another thing I want to clarify is we are not media lawyers. We are not representing the interest of the media. Our our client is the people of the state of Utah who do have uh an interest in the uh public nature of these proceedings. But, whether a docu- whether any particular document in this case is public or private is really of secondary concern to the state here. We're not trying to represent any kind of media interest and I I think it's improper for the defense to suggest that. Um uh although maybe the media might want to hire us because we we probably charge much lower rates than than the media's lawyers. Um but uh we're not representing the media's interest. We are just uh our primary concern is moving this case forward and applying the correct standards in the law. So, with that, let me turn to the the substance of the our response to the motion to classify the January 9th motion. It's clear from the rules of judicial administration that that document, having been filed with the court is a presumptively public document. And a general allegation that it dis- it discusses evidence that might be inadmissible is not enough to deny public access. Um if that were enough, then any motion that discussed evidence before there was a ruling on the admissibility of that evidence would have to be private. And even if there were some basis for ultimately finding that the evidence um discussed in the motion was inadmissible public exposure to that kind of evidence does not necessarily justify um or it does not necessarily prejudice defendant's right to a fair trial and justify sealing that document. And uh the controlling case of State versus Allgier here from the Utah Supreme Court in 2011 is very instructive on this point. Um it's instructive to all of these motions. Allgier was a capital case. Uh and the issue in Allgier concerned a letter that was sent to the court from a fellow inmate of Curtis Allgier, the defendant in that case, who'd been charged with capital murder. And the letter stated that um the defendant had confessed to aggravated murder and also threatened the inmate and the inmate's mother if the um if the inmate revealed that confession. I can't imagine any more prejudicial potentially prejudicial information in a capital case. It's a clear admission of guilt. It's a clear admission of future dangerousness. So the defendant in that case obviously wanted to keep that letter private. But the court denied that request because that information that was in the letter was already contained in the public record. Now, that fact is not necessarily um relevant to this motion to classify the January 9th uh filing, but it is relevant to the rest of the uh the motions here. But, what the court said next in affirming the trial court's decision in Allgeyer to release that letter is really instructive. Because the court recognized that despite already circulating reports of highly prejudicial information, there were there there were alternatives to restricting public access to the document. And those reasonable alternatives are the time-honored tools of jury selection. That's how we screen out jurors whose prior knowledge renders them unable to objectively view the evidence. And I think it's interesting in Allgeyer that the court said those tools would be effective to protect the defendant's right to a fair trial, regardless of whether the balancing of how that balancing came out, whether the court said, "Yes, this is so prejudicial it shouldn't be released." or the prejudice is the the risk of prejudice is not high enough to justify restricting access. Um that that ruling, that holding in Allgeyer coincides perfectly with the United States Supreme Court's uh analysis in Press the case of Press Enterprise 2, where they mentioned as well that through voir dire a court can identify those jurors whose prior knowledge of the case would disable them from rendering an impartial verdict. And as far as this notion of the court can't expand the jury pool, um that's certainly not the case. The court can summon as many Utah County jurors as it deems necessary to be able to seat a fair and impartial jury. Um, what happened in the Richens case is that um given that Summit County is a smaller population county, they tried to expand the Summit County uh jury pool with jurors from Salt Lake County. And there's nothing that allows you to take jurors from a different jurisdiction and add them to the jury pool. But we're here in the second largest county in the state. There's there's not going to be any problem with expanding the jury pool here. Um I'll just briefly touch on as far as the other two motions to ex- to classify the motion to exclude cameras and the reply in support of that motion. Um, I think basically the same arguments apply. The The only thing I would add there too where there's so much media coverage that it's it there's you've got to necessarily find that there's some prejudice. I I don't know that it necessarily works that way. I think that um the fact that media coverage becomes so pervasive can also tend to dilute the effects of that media coverage because when something becomes a constant drone, people tend a lot of people tend to tune it out. Now, for sure there'll be people that are fixated on this case. But we weed those out through uh careful questioning during voir dire. Um, and I also point out that not all media reports in this case have been uh unfavorable to the defendant and favorable to the state. It it's gone both ways here. There's there's media that the state's concerned about as well. So, just saying that this is a a content tornado or a or there's been a barrage of media coverage doesn't necessarily mean that there is uh going to be prejudice to the defendant. Um I'll turn then finally to uh the motion to close portions of the hearing. And again, there's a different standard that governs that motion. It's not governed by the rules of judicial administration. Um to close a court hearing, a court has to look at the specific nature of the proceeding at issue and determine first of all whether there's a presumptive right to public access to that type of proceeding. Now, uh defendant's waived any argument that there's no presumptive right of public access because he hasn't argued otherwise. He instead he's assumed that there is a right to public access and has argued for the court to close that hearing. But again, defendant has relied on the has incorrectly relied on the standards that govern classifying documents rather than the standards that govern um closing a court proceeding. And But the the same argument still basically apply that the defendant would have to show that the closure is necessary to protect his right to a fair trial. And we don't believe that he could make that showing where um most of the documents or most of the evidence that's going to be discussed at that hearing is already public. And that's where that other portion of the Allgeyer case comes in. Um if you're going to be discussing things that are already public, that tends to favor keeping the proceeding public rather than closing it. Now, the state does agree with the defendant on two points in that motion. Uh to the extent that the the hearing is going to discuss media coverage that has violated the court's decorum orders, we would agree that those portions of the that hearing should be closed because that would be just committing further violations of the court's decorum orders by repeating that evidence. Um and then defendant has also mentioned that there are personal privacy concerns uh to to some people and that they want to discuss media reports that have uh created concerns about personal privacy and safety, and the state would agree that those concerns are sufficient to justify closing the hearing. So, we would agree with the defendant that portions of the hearing that discuss decorum order violations and um that implicate personal privacy and safety, those should be closed, but otherwise that April 17th hearing should be open, especially where it's just going to be talking about things that are already public. Right. Does your honor have any other questions? >> Uh not just yet. Thank you, Mr. Bell. >> Any other argument? >> Uh yes, your honor. >> Thank you. And counsel, remind me your name. And uh for your honor's benefit, I intend to handle the argument on the motions to classify, and Mr. Judd intends to handle the argument on the motion to close the April 17th hearing. >> Thank you. >> So, I'll start with uh the motion to classify the January 9th, 2026 motion. That's docket 285. And for the court's benefit, the news media oppositions are at, um, docket 302, docket 337. And then we also filed a supplemental opposition, um, on March 10th. I don't believe that has been filed on the docket yet, because we filed it under seal and there wasn't a way for us as non-parties to file it on the docket. Um, I will note that I do think the court granted our motion to file under seal, but it looks like the motion that was sealed, the opposition that was sealed, was, I think, the incorrect opposition. I think the sealed one, um, was docket 451 and that should have been kept public. Whereas the one we sent to the court via email is the one that should be sealed privately. >> Thank you for that clarification. >> Yes, and we can clarify it again later if that's helpful. So, starting with the motion to classify the January 9th, uh, 2026 motion. And before I get into our arguments, I'll just clarify that I don't intend to comment on sort of the substantive arguments in the motion or the underlying, um, evidence referred to. So, as the state argued, um, filings are presumptively public. That's in the rule, it's clear as day. I do want to differ from the state a little bit though. So, rule 4-20202 sort of explains what the court needs to do when it's deciding whether or not to keep a filing public or to allow it to be sealed. What that rule doesn't exactly do is tell the court what sort of is the standard that it's applying when it's weighing the interests. And for that standard, I would refer to the court to Press Enterprise 2. That's 478 US 1. And I know Mr. Judd intends to talk about this a little as well, so I won't go into too much detail. But that's the case from the US Supreme Court. It was decided after Kearns Tribune, which the parties already referred to. And in that case, the court said that when a court is deciding to close a proceeding, so it wasn't referring to filings or documents specifically, but it was talking about a proceeding like a preliminary hearing. It said the court has to make specific findings, and there has to be a substantial probability that fair trial rights will be prejudiced. And the court was very clear that the standard is substantial probability. And then the court also said there has to be no less restrictive alternatives. So that really maps nicely onto rule rule 4-20202. The only difference being that in Press Enterprise, the court clarified the standard is substantial probability of prejudice. And although that case was referring to hearings, open hearings and open court filings are just two sides of the same coin. They're stemming from the First Amendment. They protect the same interests. So there really is no need for the court to consider or apply a different standard for open filings or open proceedings. It can really be that Press Enterprise 2 test. But really, whether you're looking only at rule 4-20202 or whether you're looking at Press Enterprise 2, the outcome for this motion in particular is the same. And that's because as Mr. Ballard referenced, filings are presumptively public. And that doesn't change just because the court hasn't ruled on the admissibility of the evidence. Um you can look at for that standard, you can look for cases like State v. Archuleta. That's 857 P.2d 234. That's the Utah Supreme Court. Also the Allgier case, 2011 UT 47. There the defendant made the argument the letter would have been inadmissible, and the court still said it should have been made public. And then also even United States v. McVeigh, which is a case cited by the defense, and that's 119 F.3d 806, and And then I finally just the final point I want to make on this motion is the arguments from the defense about why this motion needs to be kept sealed are really quite generic arguments about pretrial evidence. They could have been applied in any type of case to any type of evidence. And I understand that the defense is being careful because we're in a public setting. I understand and appreciate that. But the arguments in their sealed filings were just as generic and just as applicable to any type of pretrial evidence. Um and as we argue in our underlying in our supplement opposition, we don't think the actual arguments made in the motion justify that this type of evidence needs to be kept private. So, unless your honor has any questions about that motion to classify, I'll move on to the next two. >> Yes, go ahead. >> So, the next two motions to classify are relating to the motion to exclude cameras. And that is docket 310, that's the motion to classify the primary motion, and then docket 400, which is the motion to classify the reply in support of the motion to exclude. And the news media oppositions can be found at docket 323 So, for these motions in particular in the reply, I just want to make very clear that you cannot make public information private by putting it in a court filing. That's because filings are presumptively public, but also because again the information is public. You can't take a public thing, put it in a public forum, and it suddenly ends up being private. That just is not how the rule works. There has to be some sort of showing as to why this information can't be made public, but again, it already is public, including in fact information that was created by the public. So, if the motion to exclude is kept private, what that's saying to the public is you can't have access to information that you in fact created. Similarly, the court cannot prohibit the public from discussing information that is already public. That is a prior restraint on speech. If there is news articles, if there are comments from public officials, the news has a right to report on that. The court cannot control that. So, making this this motion and this and this reply private or sealed, it that's just not something that can actually control the speech. It So, this attempt to sort of control the public discourse it is just ineffective and it's also unconstitutional because it is a prior restraint on what can be reported on. The defense's argument there is that they shouldn't have to republish the information, but nobody is asking them to republish the information. They have decided to assert these arguments in the motion. They have decided to include all of this evidence. That was their decision, and they put it on the court docket. So, the presumption is that it is public. And the news media in our opposition to that motion, not the motion to classify, but the motion to exclude cameras, one of the points we made is that a lot of this stuff doesn't even deal with electronic media coverage. It's referring to statements made by public officials before the proceedings even began. So, the defense's position that they had to include these things, we would push back against because we don't think a lot of the things cited are even relevant to the actually narrow question that is before the court about whether electronic media coverage should continue. Because some of those statements aren't even really connected to electronic media coverage. They're connected to things that public officials said or did before the proceedings began. And we don't have a dog in that fight. We're not trying to litigate whether or not that was lawful or not. We're just trying to litigate should electronic media coverage continue. And so the defense really didn't need to include, we argue, a lot of the things they did include that again are public statements that the public has a right to see and have access to and in fact already has access to. So there is no reason to exclude the public from seeing those things. And for that argument in particular, I would again refer the court to Al Guyer where the court talked about that very specific point saying if the information's already in the public, then there's not anything the court can do by trying to restrict that information. Again, the best tools available to the court are the time-honored things that the court can control. The court cannot control public discourse, but it can control the jury that is actually seated and ensure that that is a fair and impartial jury. Are there any questions your honor had on that motion? >> No, thank you. >> Yep. And before I sit down, I also wanted to add I am prepared to address standing. I didn't know if that was something you wanted to hear from the news media today, but I am prepared to address that if you would like. >> Thank you. Thank you, your honor. As Ms. Gear asked suggested, um I'm going to address briefly um the motion to close the April 17th hearing in part. Uh the docket numbers for the briefing on that are docket number 425. That's the defense's opening motion. Uh docket 448. That's the state's response. And docket 451. that's the media's opposition. Um Ms. Fisher at the outset uh said something that I'm sympathetic with. I know the court has a lot of briefing before it on these motions. And she mentioned that it felt like we were drowning in a First Amendment briefing. I don't think anyone wants to drown, but if I had to drown in something, I think I would drown in First Amendment briefing. Um that would sounds the court ultimately needs to make a practical decision about each of these motions in front of it. And that's a tough task. And I want to help the court with that the best that I can. Um if the court is going to close or seal anything, the court has to make findings. And the court has to explain which interests it's weighing. It also has to do an important thing in determining that the the restriction it's imposing on public access is the narrowest possible way of protecting the countervailing interests in favor of secrecy. So, that's tough. And the court's been through that several times already, including with the motion to disqualify and the hearing there. How do we identify an interest that we may believe justifies an exception from this rule, this rule that the public gets access to these proceedings. Um and then how do I make that as narrow as possible to ensure that if that interest needs to be protected, I am, but it's narrow. I'm grateful therefore that the defense at A got this motion on file in time for us to discuss it today. So, we can talk about that April 17th hearing today in advance. And I'm also grateful that that motion and both oppositions recognize what I think has to be the case, which is most of that hearing, if not all of it, needs to be open. The two sides have talked about the kinds of hearings that are presumptively open. This is one of those. Uh there's no reason that it shouldn't be. It's not a juvenile matter. It's not another type of sensitive matter that would qualify. And any argument to the contrary has been waived. So, we start with the presumption that this is open. The defense also recognizes, I think, that um most of it should be anyway. That the things that they seek to protect are some narrow categories of information. I think where we run into challenges is a lack of specificity. And if we can't get to the specifics, justifying what exactly would need to be closed and why, then the presumption wins and it stays open. I see in the motion an argument that something about what they call a litany of potentially prejudicial statements, um, may not want to be introduced. But of course, for the court to enter a ruling saying, "Okay, that part of the hearing will be closed." We have nowhere near the kind of specificity we would need to say what that would even look like. Would there be some sort of short colloquy where certain pieces of evidence would be introduced? If so, what? A certain statement by a public official? A certain news clip? A certain statement? We don't know. Because the motion that will be discussed at April 17th hearing is 185 pages long and it has, again, a litany of information. It's possible that there may be some part of some piece of evidence in that weighty motion that the court may be better to review in camera, right? So as to not publicize it again and risk this republication problem. Um, but we don't know what that is at this point. Another suggestion is that the December 11th closed portion may be discussed there. I think that's gone. I think we now have a transcript that has almost all of that hearing open. The last piece is that there may be some kind of private and and personal information. Sorry, there's two more. There may be some sort of private personal information potentially for a witness. The court has, very narrowly, in the past in this case, identified one instance where keeping at least one bit of identifying information, um, off camera may be appropriate. Maybe the court would see fit to do so again here, but we don't know what the ask is. And at this point saying, "Okay, I will grant the motion to close a portion of that hearing to the extent that it implicates some kind of private information" would be impossible for the court to do because the court can't do that balancing test that the rule requires um without that type of clarity. The last piece is um uh alleged violations of the decorum order. Again, I struggle a little bit to understand exactly what would be presented that would justify closure. I think discussing, "Hey, we believe in these cases in these types of media coverage, there was something that was a violation. Something was shown that shouldn't have been and here's the problem that it creates." Again, if it's we want to show the media clip in which that decorum order violation was broadcast, I think that wouldn't justify or necessitate closing the hearing. The court could look at it on its um uh uh screen. The defense could refer to what we're going to show you right now is the following kind of violation. Uh in short, I think the task that's been put in front of the court to attempt to close part of that hearing right now is impossible. Um what would the court say, "I am going to close at this point" when everybody decides that the vast majority of that hearing needs to be open? Um it may be possible when we get to that April 17th hearing that the court may be faced with a a request to say "Here's what we're going to present. We're going to put this witness up and this witness is going to talk about this thing." Uh and it may have a more complete ability to rule on that specific issue then, but as of right now, I think not only should most of that hearing stay open, which everyone has agreed to here, but in the media's view, everything should. The last thing that I want to mention is the unique feature, the unique nature of this hearing. There's all kinds of different hearings and they may um preliminary hearings, evidentiary hearings, the trial itself. Those all may have different standards. What's unique about this hearing, of course, is that this motion asks the court to turn off cameras, to mute the microphones, and to no longer let the public be the kind of participant in this hearing that it has in this proceeding that it has been to date. Saying not only should the the be turned off, not only should the microphones be turned off, but the argument as to why that should happen should be sealed from the public and the public kept out of that hearing strikes me as the exact opposite of what the presumption of public access is meant to do. Of all the types of things that the public should be able to see argued, a question as to whether or not the public will be able to continue to observe the proceedings in the case seems like close to the highest potential instance in which public access should be granted in that case. Um we think this hearing should be open. The parties are taking all the measures that they can and I know we have hard work from our people here representing the media and the public to try to abide by the court's decorum order. The court has done uh heavy lifting so far to initiate and refine that decorum or order to balance the interests. Um we believe that that is the the approach the court should continue to take to continue to allow access, but to have appropriate restrictions to balance the interests. And we ask the court to do that with respect to the April 17th hearing as well. Thank you, Mr. Judd. >> Defense, do you want to >> Responding first to Mr. Ballard's arguments, Your Honor, um quote, "We are not concerned with extrajudicial statements." That is not correct. Uh the motion and also responding to Mr. Judd's argument that we're not specific as to what it is we we don't want publicized, that the motion sets forth 305 in great detail the specific prejudicial pre-trial publicity that we think prejudices Mr. Robinson's right to a fair trial. So, it it's hard to understand in light of the length of that motion and the detail uh at which the the prejudicial publicity is set forth, how a media lawyer can stand before you and make a statement that we have no idea what they're asking to be excluded. What we're concerned about, as I indicated in the argument, is the specific categories of prejudicial information outlined in 305 that state opinions, extrajudicial of public officials, extrajudicial opinions of the prosecutors, of law enforcement authorities. So, when Mr. Ballou said we aren't concerned with extrajudicial statements, we are concerned with that, and those extrajudicial statements are outlined in the motion itself very specifically, so the court has in front of it. And and if the court if it would assist the court, we could proffer proffer to the court a proposed redacted motion, which would take out everything identified in that motion as prejudicial pretrial publicity. I think it's obvious from the face of the motion what that information is, but if it would assist the media in understanding exactly what we're talking about, we're we're more than happy to do that. And and if that would assist the court, um the idea that one of the media lawyers said, "Oh, the the statements of the uh of public officials are not connected with the media." I I I can't understand for the life of me understand what that means. The media publicizes those statements, and if the court looks at all of the link uh electronic media coverage that we've got outlined in the motion, the court will see it's a very slanted, biased rendition of the prosecution's version that Mr. Robinson is guilty and should be should be sentenced to death. There's no impartial reporting in any of the electronic media. So, when the when the media lawyer says, "This coverage is they're just public officials. We have no control over them. We're not in any way responsible for what they say or what they don't say." That is false. They are responsible in the sense that they are putting in front of the public a distorted view of an incriminating portrayal of Mr. Robinson. And that theme of incrimination is repeated over and over in virtually every one of the clips that we provided to the court. And we've emphasized that those clips are are merely the tip of the iceberg. And we will present during the hearing much more than what's presented in the motion to prove that very point. And so, there is a connection. And it's not only the electronic media, but the social media media who is taking this information and spinning these theories of incrimination. And Mr. Ballard says, "Oh, well, it's not we haven't told the whole picture because some of that is pro defense." And he indicates in his pleading that they're going to put in at the hearing uh publicity concerning uh conspiracy theories that are out there. And the implication is that those conspiracy theories help somehow help Mr. Robinson. But we're on the side here of using this trial as a method to find truth. We have no interest in advocating conspiracy theories, whether they help Mr. uh Robinson or not. So, you can I think it'd be helpful for the court to see some of these conspiracy theories. But the main point is the public is not being educated by electronic media. They're being biased by it, and they're being slanted to extreme views on both ends of the spectrum. And that's where the court under the Maxwell case says the court trial court has a primary responsibility to step in and take measures that could lessen the impact of that publicity. That the idea that it's already out there. In the Alger case, I'm going to focus for a minute on that case cuz I think if anything it it supports the argument we're making. The court in that case was concerned with a letter from a jailhouse informant, a single letter, who claimed that Mr. Alger, I'm sure I'm mispronouncing his name, had confessed to him in a jailhouse conversation. And the trial court uh refused to see see of the letter because there was already uh other publicity. We don't know what that other publicity is. It's not detailed in the Utah Supreme Court's opinion. But, when the case reached the Utah Supreme Court, critical fact for the court the Supreme Court was that in the briefing in front of the Supreme Court, Mr. Alger had included the letter that had been sealed by the trial court pending the appeal. He himself disclosed the content of that letter. And uh the Utah Supreme Court said, "In firming the decision of the district court that the interest favoring unsealing the letter outweigh the interest that favor keeping it sealed, we note that since the time of the district court's decision, most of the significant information contained in the letter had been introduced into the public arena. Specifically, in his brief in this court, which is a public document, Mr. Algier included the third district court's decision to unseal the letter. That decision, which was filed under seal, quoted the letter. Because these portions of the letter have been placed by Mr. Algier into the public arena and are therefore accessible to the media, any significant interest that would be protected by requiring the letter to remain sealed are now greatly diminished. So, how does that case compare to this one? Well, first of all, we're not dealing with information that the defense has voluntarily put into the public domain. In Algier, there was no motion to file the letter uh under seal by Mr. Algier. In this case, we filed all the relevant pleadings here with a request that they be classified as private. So, counsel for the media miss- misspeaks when they say uh "Oh, well, once it's filed, it's in the public domain." The very purpose of the procedure to make something private is for the court to rule on whether it should be considered a public filing. So, that procedure was followed here, was not followed in Algier. He put the documents into the public domain. The second thing is um it I think strains credibility to say that the factual record in Algier is in any way comparable to the extent and nature of pre-trial publicity in this case. We're not dealing with a confession letter by a jailhouse inform- a single letter by a jailhouse informant. You can't compare the president of the United States, the vice president, the governor to a jailhouse informant in terms of the weight that the public is likely to give to that information. So, the court in El Geure was not saying, "We don't care what the pretrial publicity is." Uh we're holding that in every case where there's been any disclosure of information, no matter what it is, uh that's the end of the ball game and the court has no obligation to try and restrict further prejudicial pretrial information. The court never said that. And when Mr. Ballard says he can't imagine any more prejudicial information than uh a letter from a jailhouse informant, uh I would recommend to him the facts of this case. Because this is a case that goes way beyond a single letter from a jailhouse informant. It covers opinions by highly respected, in this county anyway, public officials who directly state that Mr. Robinson is guilty and deserves the death penalty. And uh Mr. Ballard says rule 3.6 has no relevance here. It has relevance to the extent that it defines what prejudicial pretrial publicity is. It defines what the categories are. And the Levitt decision, which is cited in our motion by the recent decision by the by the Utah Supreme Court, emphasizes that the categories outlined in the commentary of section 3.6 uh identify what those categories of prejudicial pretrial publicity are. And it's not again, unlike El Geure, we're not talking about a single instance. We're talking about repeated exposure to the most prejudicial information that is imaginable. And what will come out of today's hearing will be more of the same. In other words, right now as we're talking, there are media talking heads, law school professors, criminal defense lawyers who be who are being paid for their opinions and not disclosing that they're being paid for their opinions who will say things like, "Oh, this motion by the defense is absolutely frivolous." Or this motion is wrong or this is uh this is why this motion should be denied by the court or characterizing Mr. uh Robinson's demeanor, etc. So, this case is not comparable in any way to Algier. And the court should not uh buy into the notion that um they are comparable. The idea that we're mixing the standards, I I think could be bounced back to their side because they say, "Oh, the standard for closure of a hearing is uh you know, compelling state interest and no reasonable alternatives." But they skip a step, which is is is this type of hearing that we're seeking to close, the portions of which will discuss the prejudicial pretrial publicity. Is that subject to a first member right of access? We haven't waived that argument. That's an argument that Curran says should be at the forefront of the court's analysis. Regardless of uh which side is raising the issue, the court has to determine whether this hearing on the 17th is comparable to a trial or to a prelim. It's unique in the sense that it's focused solely on what everybody has to say is inadmissible evidence. Is that the type of procedure that there should be a compelling interest demonstrated? And in any event, we have demonstrated a compelling interest. Mr. Robinson's right to a fair trial by an impartial and representative jury. And that right, according to the US Supreme Court, takes precedence over every other right. The Press Enterprise case that was cited about the efficacy of voir dire and the Algiers case that was cited for the same proposition conflicts with Gentile versus Board of uh the State Bar, which was decided years after Press Enterprise II. Press Enterprise II was decided in '86. Uh Gentile's decided in '91. And if you look in the uh discussion in the Algiers about what cases are cited when the court talks about the efficacy of voir dire, uh Gentile is nowhere mentioned. So, uh the Supreme Court may have its own view. The Utah Supreme Court may have its own views about the efficacy of voir dire, but I would ask, how does one explore with a juror whether they have been exposed to publicity that is prejudice specifically prejudicial, things like a confession. Do you bring Well, did you see any Have you read any You ask a juror, um have you read or seen anything in the electronic media about this case? Uh not that I recall is a typical answer even even if they've seen a lot. Uh and then uh the next question was, when you attempt can you or should you attempt to jog their memory by mentioning specific prejudicial information? Well, how about a confession? How about a statement by the president of the United States that Mr. Robinson should be executed? Have you seen anything like that? Now, that type of voir dire is designed to bring to the jury's attention the very information you don't want them to have. So, you know, just throwing out the the vague proposition that oh, voir dire the traditional means of curing pre-trial prejudice doesn't deal with the realities of voir dire in a capital case where the prejud- prejudicial publicity is as extensive as this one. There is a uh discussion of But it always struck me as kind of really stating the truth of it in the court. This is an old high publicity uh murder case, California case, Corona versus Superior Court, 24 Cal. App. 3d 872. And the court is characterizing its experience with voir dire as an effective method. And the court says, "Questioning on voir dire as to the effect of the media's evidentiary disclosures, one prospective juror may deny or admit awareness, another disclaim or admit prejudgment. One may falsely deny both knowledge and prejudice for the sake of a place on the jury. An honest juror may admit knowledge or tentative prejudgment and find himself excluded. Many will sincerely try to set aside their preconceptions and give assurances of impartiality, yet unconsciously bend to the influence of initial impressions gained from the news media." And along the same lines, we have in this case um an expert declaration that is discussed in which talks about the importance of repetition in in causing conscious and unconscious bias in jurors. And the importance of unconscious bias is it's by definition bias that cannot be weeded out by voir dire because the juror doesn't know they've been uh they've been affected by it. And and the expert this is page 94 of 305 says, "The volume of coverage in notorious cases can be overwhelming. And studies show that the quantity of pre-trial publicity to which jurors are exposed affects their level of bias. Across studies extending back several decades, researchers have demonstrated that individuals exhibit a greater propensity to prejudge defendants when they are exposed to more publicity. Both as a general conclusion, i.e. showing a general propensity to prejudgment based on an increase in the amount of exposure, and in response to specific threshold thresholds, i.e. showing that prospective jurors exposed to at least three newspaper articles about a crime were more likely to believe there was ample evidence against the defendant. This effect has been demonstrated in both naturally occurring and controlled confirming the validity of the proposition. And along the same lines, the US Supreme Court in a case cited on that same page, US Department of Justice versus Reporters Committee for Freedom of the Press, 489 US 749 says, "The fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of that information. So, the fact that there's already existing prejudicial pre-trial publicity out there does not should not give rise to the conclusion that, "Oh, well, let's add some more." Because the court at this stage of the process still has the ability to control this process in a way that will protect Mr. Robinson's right to a fair and impartial jury by representative jury. And just to say, "Well, we'll handle it down the road." is to ignore the mandate of Maxwell that the court has to be proactive and to take action before the prejudice happens. So, we're seeking to prevent future prejudice. It's already existing. There's no doubt about that. But to throw your hands up at this point, this early stage of the case, and say there's nothing I can do about it, we're just going to continue along the same lines, allow these people to keep making these prejudicial statements, and hope for the best down the line, and that we won't have to exhaust the entire pool, we won't have to move for a change of venue. And again, there are costs associated with those remedies that we think argues in favor of this motion. >> Thank you, Mr. Burton. >> Thank you. >> All right, I just have um a couple of questions for the parties. The intent is to obtain these, and then the court will I want to discuss uh issue its ruling. And I want to update my notes. I've been taking notes the whole time. I'll be issuing a ruling, but I also, based off that ruling, will want to talk about what the expectation for the next hearing is, to set the the guidelines in place so we all come in prepared knowing uh what the expectation is and what we'll be handling specifically. All right, to the defense, uh most pre-trial motions discuss evidence that's been not that has not yet been ruled inadmissible. If the court seals the January 9th motion simply because the evidence might be deemed inadmissible later, wouldn't that set a precedent requiring the court to seal seal almost all >> I think it would depend on the nature of the evidence. In other words, if it's uh evidence that doesn't go to the heart of the case. Court always has to consider the nature of the evidence. Here we're talking about essential forensic testing opinion evidence. And so, that puts it into a category that I think is distinct from any and all motions having to do with any sort of evidence. There may be some evidence that doesn't uh fall into that category. And I note that in on this precise issue the court raises, um the sentence in Kerns tribute addresses that. The court says, "If the prosecution elected to try to use such evidence in the preliminary hearing, paren in advance of a ruling on whether it should be suppressed, the defendant could seek special measures to avoid its public disclosure." So, I read that as saying the court is not really focused on whether there has been a ruling on admissibility. It's, you know, again, what is the nature of the evidence? Why are you trying to disclose it? And I think the court can make reasonable distinctions between is this the kind of evidence that could could cause problems or is it, you know, in the harmless error category? >> Thank you, Mr. Burt. >> Sure. >> Uh in offering the opportunity, do the other other parties wish to respond to that question? You don't have to. Uh but if you want to, I certainly want to give you that opportunity. >> No, your honor. Thank you. >> All right. >> Uh I'll just respond to you, your honor. >> Mr. Lask on behalf of the news media again. So, just to respond to the sort of the test the argument that the test should be whether the evidence goes to the heart of the case. That's not really a standard that I'm aware of in case law or the rules. Again, the court goes through the balancing test and there has to be, you know, specific findings. There could be a substantial probability of prejudice. And here I would just argue that's just not the case. And I will just direct the court to the arguments we made in our sealed supplemental opposition that is very specific to this motion as to why that showing has not been made here. All right. To see the defense, uh you noted if full classification is denied, you would seek to file redacted versions. Have you prepared a proposed redacted version of these motions and do you believe redacting the specific evidentiary exhibits and media links would sufficiently cure >> We haven't yet prepared those redactions, but it's easily done because it focuses on the factual portion of the motion. So, essentially it would be as made to the court the legal arguments absent the factual basis as discussed in the statement of facts and later referenced in regard to the criteria under the the rule. Some of the publicity set forth there there as well. So, it can be easily done. Um it would satisfy the concern insofar as the motion goes. Uh what you would lose in that, I think, is at the hearing itself having the court have the ability to actually listen to the evidence. I'm not sure I think that falls into a different category. In other words, the motion is one thing, but presenting it live to the court, um I think presents a different issue. And perhaps that can be addressed by submitting to the court in camera the clips that are outlined in the motion, which that would satisfy our concern. But, uh the only other thing I think could arises if experts are commenting on something the court has considered in camera, those opinions might disclose that information. So, that could be a special problem, but in general, I think redacting the motions and uh providing the court with a disk or a thumb drive that contained the clips with the understanding that that would not be disclosed. In other words, by providing that to the court, the media would say, "Oh, you provide provided to the court, therefore it's it's filed and we're entitled to it." I think it would the understanding would have to be the court has been provided this with the understanding it is private. And to answer the court's question, I think those kind of remedies would resolve the issue. >> Thank you, Mr. Burch. >> Sure. >> All right, turning to the state, the the defendant argues that publicly filing the motion to exclude forces them to republish prejudicial media links and private information protected by GRAMA, effectively doing the media's work for them. Does the state acknowledge any risk to the integrity of the proceedings by hosting a consolidated repository of this uh potential prejudicial >> I I think defendant you can't ignore the fact that there is um there is a risk that when you repeat something it's emphasized. Uh certainly we agree with that that there's a risk of that. I think Allgeyer is controlling though where it says uh the fact that something is already public tends to um support that that should remain public and that uh Allgeyer to it didn't directly address whether that would risk republication. Um or sorry, whether the republication would risk emphasizing, but certainly that's the the undertone there in Allgeyer. And I just wanted to qualif- or clarify one point there. If you look at uh paragraph Just let me grab my computer. >> Sure. >> If you look at paragraph 16 of Allgeyer, this is about uh the point that Mr. Burt made that uh defense counsel in Allgeyer actually attached the letter to his public brief uh in the Supreme Court. That was not the decisive factor in Allgeyer. All that did was give the court even greater confidence that uh affirming the district court's ruling to release the letter was correct. If you look at paragraph 16 in Allgeyer, um about halfway through the paragraph, it says the district court considered the specific language within the Cobb letter. Cobb is the name of the inmate. The The specific language within the Cobb letter and its potential impact on Mr. Allgeier's right to a fair trial. But the district court concluded that given the amount and type of prejudicial information already in the public domain at the time of its decision unsealing the Cobb letter would not undermine Mr. Allgeier's right to a fair trial. So, the district court's decision was based on what was already in the public um the information that was already public when the letter came before the court. The letter at that time was still still sealed. And then the Supreme Court does not say um it doesn't question whether that balancing was correct or not. It says, "We are In affirming the decision of the district court, we note that the the letter has There's even more information of the same kind that was already contained in the letter because the letter itself was now attached to the brief. So, the the decision in Allgeier was based on the information that was already in the public domain even absent the defendant attaching the letter to his brief. All right, thank you. Thank you for the patience of the parties. This court has considered the oral arguments made today and has considered the briefing which has been previously submitted. And I commend the parties for and their arguments as well as the quality of And so the court is going to issue its ruling on what is requested and what is before the court. Before the court are three motions to classify court records. Defendant's motion to classify as private motion filed January 9th with exhibits. Defendant's and which is docket 285. Defendant's motion to classify motion to exclude docket 310 and defendant's motion to classify reply in support of motion to exclude docket 400. The public has a presumptive right to access court records. Open court records assist in educating the public about the workings of government and the decisions being made on the public's behalf. Uh contribute to the informed debate, allow the public to hold public officers and employees accountable, increase public confidence and provide material for independent research on improving government policy. The right of access, however, is not absolute as cited to in Alger. Other factors may favor closure of the records such as protecting personal privacy, non-parties participating in the court proceedings and the defendant's right to A court may consider any relevant factor, interest or policy in both in favor of and opposition to closure in determining whether to classify or close all part all or part of a court record. In making its determination, a court must make findings and conclusions about specific court records, identify and balance the interests favoring opening and closing the record, and if the record is ordered closed, determine that there are no reasonable alternatives to closure sufficient to protect the interests favoring closure. With this legal framework in mind, the court now turns to the pending motions to classify. And it really as it relates to defendant's motion to classify as private motion filed January 9th with exhibits docket 285. Defendant seeks to classify a motion filed on January 9th, 2026 as private because it addresses evidence that has not yet been found to be admissible, and it is of a nature that could easily taint potential jurors. If the court denies his motion to classify, defendant requests an opportunity to file a public version of the motion that redacts the attached exhibits and details from the exhibit discussed in the motion. Defendant does not provide any specific specificity explaining why the potential evidence discussed in the underlying motion is of such nature that its disclosure could taint the jury pool. The potential evidence discussed in the motion is technical and discusses the process of scientific and forensic testing of physical evidence. It does not contain any obvious private or inflammatory information. While the evidence has not been admitted at trial, there is no pending motion to exclude it. In balance, defendant has not provided a sufficient basis for the court to find that the interests favoring closure outweigh the interests favoring an open proceeding and the presumptive right to access. Moreover, as the Utah Supreme Court recognized, even in highly publicized cases, a defendant's right to a fair trial can be protected through the regular time-honored process for for selecting jurors like enlarging the veneer of potential jurors, utilizing a detailed juror questionnaire, and conducting a thorough voir dire of potential jurors. Defendant's request to classify the motion filed on January 9th, 2026, is respectfully denied. As it relates to the motion to classify motion to exclude docket 310, defendant seeks to classify his motion to exclude cameras from the courtroom because the motion compiles a litany of unfairly prejudicial and oftentimes inaccurate electronic media interviews, comments, and uh photographs. Furthermore, the motion references court filings that are classified as private and references the publication of private information of individuals involved in this case, allegedly in violation of law. Defendant does not provide any citations to the underlying motion to aid the court in identifying the potentially private information. The court is sensitive to the amount of pretrial publicity generated by this case, including an extensive amount of public commentary and inaccurate or conspiratorial descriptions of alleged evidence supporting or negating defendant's guilt. A substantial amount of this pretrial publicity is organized and memorialized into defendant's motion. Because the references to pretrial publicity are, by their very nature already contained in the public arena, interests favoring closure are greatly diminished. And this citing to state B. Alger, the public has already the public already has access to the majority of the information contained in the motion. Upon balancing the interests at play, the court determines that defendant has not shown that the interests favoring closure outweigh the interests favoring access to the record. With the exception of the potentially private information referenced in the motion to classify, the court orders defendant to file a version of his motion to exclude cameras referencing docket 305 that redacts private information referenced but not specifically cited in his motion to classify. The redacted versions of the motion to exclude cameras must be filed with the with the court by the end of business on March 30th, 2026. If no redacted motion is filed by that time, the court will reclassify docket 305 as public. If a redacted motion is filed, the court will maintain the private classification on docket 305. Accordingly, defendant's motion is granted in in part and denied in part. Finally, turning to the defendant's motion to classify reply, docket 400, defendant seeks to classify as private his reply memorandum in support of his motion to exclude cameras from the courtroom. Defendant argues that his reply memorandum should be private because it references portions of the motion to exclude cameras, which he has also moved to classify as discussed in the ruling on docket 310. Defendant does not cite to any part of the reply memorandum that references potentially prejudicial information in the motion to exclude. Based on the record before it, the court concludes that defendant has not provided a sufficient basis for the court to find the interest favoring closure outweigh interest favoring access to the reply memorandum. As such, defendant's motion is respectfully denied. I will go ahead and sign this order and With this in mind, counsel, how do we like to proceed? What I want to turn to next is this upcoming April 17th hearing, how it will be conducted, and so we all have a good idea of what to expect and to prepare for. And so first I'll hear from defense in regards to your expectations on moving forward given the ruling of this court, and then I'll turn to the state as well. All >> So your honor, we anticipate calling several witnesses. One witness would be in the nature of a foundational witness who would summarize for the court the nature and extent of the publicity. I would be testifying to certain things like publication, scope, number of times certain articles have been referenced. We would be playing for the court the various clips that are referenced in the motion as well as others not referenced to provide the court with an overview of what we think the court needs to look at in terms of the nature and extent of the publicity. Then we would also be producing a expert witness whose declaration has already been provided to the court and to the parties. Uh and that expert would testify to the uh facts and opinions outlined in the declaration that is attached to document number 305. Uh we'd also have a third witness potentially who would be testifying to a um laying a foundation and testifying about a public opinion survey that uh is in progress right now. And that would be the extent of our evidence. >> All right. Thank you, Mr. Burch. Sure. >> Thank you, Your Honor. Chad Gruenader for the state. I would anticipate that the state would be calling one witness. Um and it would be in the nature of a foundational witness to just talk about the nature and the extent of publicity that is negative towards the prosecution. Um and or negative toward Mrs. Kirk. Uh and I think believe that would be the extent of the evidence that would be presented from the state's side. All right. Any other input from other parties? >> Your Honor, the media does intend to be there, um but we don't intend to try to complicate matters. We'll be there to make argument as would be helpful to the court and to protect the interests that media believes may not be addressed in the other argument, but we will um sit on the side table there as well. >> All right. Thank you. Thank you to all parties. I appreciate detailed motion filed on that January 9th, uh the court will uh read and prepare as it already has for that. And so, the court finds it unnecessary to present all that evidence verbatim. Uh the court does not need to see the video clips. Uh and if uh defense wishes to give summaries of what's uh in the motion. Uh the court allowed the over length uh memo to be filed with the intent of allowing you that ability to put in detail what you want to be considered and include your argument. And so the court accepts that and and receives that and will review it thoroughly. But for the benefit of this hearing coming up, uh the court uh does not feel it is necessary to replay uh what is listed in the motion. Uh again, if you wish to give summaries of that, I understand that's going to your argument. But uh to go through it all again uh as as detailed in the memorandum is not necessary for uh the finder of fact, the court. And so uh I will um that that is one of the guidances I wish to give. In regards to the witnesses, uh that is fine. Uh what I would ask is that your witnesses be succinct, on point, and let's stay focused on the issues that are before us. My fear is that we start veering in other uh areas that are that are not germane to the issue that's before the court. And this goes for both parties. I'm looking at uh Mr. Burt, but I equally uh am am considering the state as well because you indicated you're calling a witness. And so I ask that you prepare that witness to stay on point and to focus on the main issues uh that is before this court. Um We are scheduled, I believe it is April 17th at 10:00 a.m. And um And so I do have the remainder of the day. That being said, just because it's there doesn't mean it needs to be used. Uh I want us to be focused and addressing. I also wish to encourage the parties to give your argument the weight that it deserves. This is an important issue and I encourage both parties to be fully prepared and argue that this is an important issue. I recognize it for both Mr. Robinson, for the state, for victim representatives and for the issues of open and transparent courts. So, the court is prepared be prepared at that hearing to hear the arguments and I anticipate, unlike today, I will not be issuing a ruling on that day. I believe that what will be argued, the court needs to let it percolate, to examine, re-examine the motions, examine the notes to ensure that the ruling the court makes properly balances the constitutional rights of Mr. Robinson, Ms. Kirk and the concepts of open and transparent courts. Uh, with that in mind, counsel, is there any other issues that we need to address? Mr. Burt. >> Your Honor, uh, two questions. We had anticipated filing with the court either a disk or a thumb drive that contained all the reference electronic media cited in the motion. I assume from what the court said, the court has no objection to that. >> No. And well, to the state, any input on All right. Mr. Gruenander is submitting on it. So, I'll accept that and I'll receive that to review. Uh, just to ensure because sometimes URLs change and and so I appreciate you providing that so the court has a single place to refer to. >> Sure. The second issue, Your Honor, I came across when I was preparing for the hearing today, a letter brief uh, that is online dated October 28, 2025 from a group called Human Events. And it's addressed to your honor. Uh and it's in the nature of a brief on the closure issues we've been discussing today. It indicates at the bottom that it was CC'd to the parties, but discussing with the prosecution, neither neither one of neither party has actually received this. My I was curious as to how the court handles, if it does, uh letters of this nature where people are unbeknownst to the parties providing opinions, and in this case legal briefs to the court, which I assume the court is not looking at, but I I I wondered what is the We don't see this filed in the docket. >> All right. So, that would be ex parte communications. And the court has not reviewed that. Do we have a record of that? All right. Uh what is what is the request of the parties as a So, the we have a record of it. I haven't it wouldn't be proper for me to do so, so I have not. What is your request as it relates to that particular >> And as as long as that's the court's uh ruling, that was our concern. And just to make clear that that in fact is the rule is is what we were after. >> All right. Thank you, Mr. Bird. I appreciate you addressing that. >> Sure. >> To the state, any final issues? >> Um just briefly, Judge. Um there has been discussion today about uh the status of the April 17th hearing itself, whether it will be open or closed or portions of it. Um I'm assuming that that'll be addressed first thing on April 17th. >> It will. I want to see if the uh defense wishes to file that uh motion in private that that the court referenced in its order, and then I'll take it from there uh to see if there is private personal information that is anticipated being argued. Uh and so, I want to make sure that that's fully vetted out, the parties see, and that we can prepare. I don't want to simply say it is The presumption is it will be open. But it could there be a portion that's closed? Absolutely. I just don't want to state how much or how long because I don't know what the the the depth of that information. So I want to review that, but the anticipation is it will be an open hearing. And again, if there is a portion that dictates that closure is appropriate after balancing all the factors, then then there will be a closed portion. >> Okay, understood. Thank you, Judge. And then lastly, Mr. Novak did forecast a a motion with respect to the preliminary hearing. So I think we're going to discuss that further today. So >> That's right, Mr. Novak. You talked about that and I said we would revisit it. At this point, what I anticipate is let's go ahead and brief that. So it's fully briefed. I Right now it seems a bit premature because I'm not sure when that information is going to be passed over to the other side, how that affects how it's processed and reviewed. And so I'm happy to set a briefing schedule. It sounds like both parties are aware that the scope of what discovery could be coming over, but may not know all the details because it hasn't been passed over. >> Mr. Novak. So um that's fine. We're happy to brief it and I think we should in the time permitting set a schedule so that >> Absolutely. >> can rule on that before it's schedule gets worse. Um what counsel for the state told us yesterday is that they hope to receive certain materials in the next week or so. Um we also received yesterday separate from the forensic sciences a um hard drive that has the images of all one piece of evidence that I think that the state wants to present at the prelim is somewhere in one of those devices in theory. The state may have another way to present some of that evidence, but we don't know yet. Um so that that's like an additional piece of that. And we of course haven't opened that box. We haven't sent it to the right expert. Um we do know that once we get all of the um ATF case file materials from their forensic work and the ATF and FBI data files that we don't have from their forensic work, that that it's not just about counsel receiving this, obviously, Your Honor. There's nothing that we can do, for example, with proprietary um scientific data that has to be run through software that our experts have access to. So, it's not like oh, we got some information, we're ready to go. That's That's just what I I if I didn't adequately express that this morning, I wanted to do that. So, we can brief it. It sounds like um it should start with Mr. Robinson's motion to continue. Um and I guess the question is working backwards, when does the court want to hear >> Well, I certainly want to address it before the preliminary hearing itself, right? >> Sure. That That would be appropriate. >> Well, how quickly could you have that motion filed? I I guess that's gets the train on the track. >> I think it could be fully briefed if everybody is cooperative about that, so that it's ready for submission before April 17th. >> Okay. >> All right, so >> that's basically a month and a couple days to brief a important but discreet issue. >> And so is that how much time would the So the 24th of April that would be the So uh >> I was suggesting if I may that we would fully brief it so that when we are here in person with your honor on April 17th, the court can hear argument if necessary and issue a ruling. >> Oh, or so you're saying your motion as well as the other side or what's I want to make make sure I understand. >> saying that we can file our motion. Let's just say we need 10 days from now or maybe two two weeks to file the motion. And the state's saying they have a week, maybe we have a few days for a reply as necessary and it's submitted sufficiently in advance of April 17th since we'll be here on that day for the court to actually hold a hearing on the motion to continue. >> I see. I see what you're saying. >> Does that still make sense everybody? >> So just for just for the for clarity, you'll have your motion filed within 2 weeks which is March 27th. And then state can have its reply by April 10th and I think that's what Mr. uh McBride was alluding to and then on that April 17th will be fully the court will be prepared to uh hear argument on that as well. >> I think Mr. McBride said they need a week. We want to file a reply although we won't need a week to do a reply. >> Okay. So I see. So So from the 10th to the 17th if you wish to file your reply of April. >> Our response April 3rd. >> Okay. And then by the 10th. >> Definitely. >> All right. >> So it's the 27th of 3rd and the 10th. >> That's correct. I appreciate the parties working together to to flesh that out to address that. And then we'll so as it relates to the April 17th hearing, that will be the an additional issue that we address as well. And uh we do have the benefit of the day. So, uh we can proceed accordingly. Anything further? >> No. >> Nothing from the state. >> All right. And uh to defense, I am anticipating Mr. Robinson will be here in person for that hearing. >> Definitely. >> All right. Thank you. All right, counsel. I appreciate your hard work today and your arguments and uh we have a good path moving forward and we'll address the issues on April 17th. And I'll I'll look for those briefing on the 27th of March, 3rd of April, and 10th of April as well. With that in mind, court is now in recess.