Court Proceeding — Charlie Kirk Murder Case: Defense Bid to Halt Proceedings Denied

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Court Proceeding — Charlie Kirk Murder Case: Defense Bid to Halt Proceedings Denied
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=xLztIn6e3ck) — verbatim ASR, not a certified court transcript.

Such measures may include the use of screen protections on electronic devices and care to avoid the inadvertent capture of privileged or private discussions by recording equipment or by those present in the courtroom. In addition, the microphones at uh council table are turned off as a further precaution and when making arguments if if that occurs, I ask you to approach the electum when you do so. Second, the court will address the camera operator and still photographer. And with those individuals, please come >> Thank you. If you could state your full So the purpose is to ensure clarity regarding the expectations governing today's proceedings and could you uh well have you reviewed the court standing decorum order dated February 24th 2026? All right. Do you understand the requirements set forth in that order as they apply to your activities today? Do you require any additional time to review the order or to adjust equipment Do you anticipate any difficulty complying with the order? All right. I appreciate your Turning next to defense motion to state pending interlocatory review and the court will issue its Before the court is defendant's motion to stay pending interlocatory review. Defendant seeks to stay all further proceedings in this capital case, specifically the preliminary hearing scheduled for the week of July 6, 2026 pending the Utah Supreme Court's disposition of his petition for permission to appeal from an interlocatory order. The state filed objection to the motion and defendant subsequently filed a reply. Having considered the party's briefings, the factual record and the relevant authorities, the court issues the following ruling in order. Defend is charged with the aggravated murder of Charlie Kirk, a capital of felony offense. The media interest in this case is extraordinary within the state of Utah. Due to this intense public interest, defendant previously filed a motion to exclude still photographers, TV cameras, and microphones from the courtroom, seeking a categorical ban on electronic media coverage during all proceedings. On May 8th, 2026, this court issued its camera ruling denying defendants requests for a blanket ban and concluding that under Utah rule of requests for electronic media coverage must be evaluated on a proceeding byproceeding basis rather than through a categorical prohibition. The court also established procedures designed to provide advanced notice of media requests and an opportunity for the parties to be heard before any such request is decided. Subsequently, on May 29th, 2026, defendant filed a petition for permission to appeal from an interlocatory order with the Utah Supreme Court challenging the camera ruling on state and federal constitutional grounds. On June 6, 2026, the Supreme Court issued an order requesting that the state and various media organizations file responses to defendants's petition within 14 days. Additionally, on June 1st, 2026, this court denied defendants's motion to close portions of the upcoming preliminary hearing in seal exhibits, concluding that defendant had not demonstrated a realistic likelihood of prejudice sufficient to justify closure, particularly where much of the information at issue was already publicly available. The parties dispute the precise legal standard governing a motion to stay pending in aocatory review. Defendant argues that grant the the granting of the stay lies within the inherent and discretionary powers of the court varying according to the requirements of each individual case. In addition, defense argues rule eight of the Utah rules of appellet procedure which requires him to request to stay in the trial court before seeking a stay from the Utah Supreme Court. Conversely, the state argues that under rule 8C2 of the Utah rule of appellet procedure, the movement must demonstrate a a likelihood of prevailing on the appeal, b a likelihood of irreparable harm to the movement, outweighing the harm to any other party, and c that the stay is not adverse to the public interest. Defendant contends the factors contained in rule 8C govern the waiver of a bond or security requirement and do not establish the substantive standard for granting estate itself. The court concludes that regardless of whether the motion is analyzed under the discretionary authority recognized in Lewis or under the factors identified in rule 8C, the result is the same because defendant has not established either a sufficient concrete threat of irreputable harm or that the balance of equities favor a stay. Defendant argues that the proceeding that proceeding with the July preliminary hearing while his petition remains pending will cause irreputable harm to his constitutional rights to affair an impartial jury. Specifically, defendant relies upon the expert opinion of Dr. Christine Ruva who opines that electronic media coverage of the preliminary hearing may expose perspective jurors to an inadmissible hearsay evidence and create unconscious bias. Defendant further relies on Shephard, James, and Haulingsworth, arguing that once the proceeding is publicly broadcast, any resulting prejudice cannot be undone. The court takes defense a defendant's concerns seriously. The potential impact of extensive media coverage in a capital case is neither hypothetical nor trivial. The court further recognizes unlike many forms of pre-trial prejudice, widespread dissemination of information through modern and electronic media may be difficult or impossible to fully reverse once it occurs. The question presently before the court, however, is whether the record establishes a sufficient concrete and imminent risk of prejudice to justify staying all proceedings while interlocatory review remains pending. The court concludes that the asserted threat of prejudice has not been yet shown has not yet been shown on the present record to be sufficiently concrete to justify the extraordinary relief requested. The court does not minimize defendants concerns regarding publicity in a case of this magnitude. Indeed, the court has previously recognized that media attention surrounding these proceedings is extraordinary and that dissemination of preliminary hearing evidence presents challenges not ordinarily encountered in most most criminal cases. Nevertheless, extensive publicity does not standing alone establish that an impartial jury cannot ultimately be selected. Courts have long addressed highly publicized prosecutions through established procedural safeguards including expanded jury pools, detailed jury questionnaires, individualized for dire venue related remedies where appropriate and careful judicial supervision of the jury selection process. As is the United States Supreme Court observed in Nebraska Press Association versus Stuart, pre-trial publicity does not inevitably lead to an unfair trial and predictions regarding its ultimate impact are often uncertain. Likewise, prominence does not necessarily produce prejudice and jury impartiality does not require ignorance. In its June 1st, 2026 order denying closure, this court concluded that defendant had not demonstrated a realistic likelihood of prejudice sufficient to justify closure of the portions of the preliminary hearing should concerns regarding prejudice arise as the case progresses. This court retains broad authority to employ traditional safeguards to protect defendants constitutional rights including expanded for veneer procedures, comprehensive jury questionnaires, individualized bordire changes of venue when warranted and other remedies authorized by law. Moreever, moreover, no media organization has yet filed a request for electronic media coverage of the July preliminary hearing, and the court has not been called upon to determine whether such coverage will be permitted. Accordingly, the asserted injury presently depends upon future events that have not yet occurred, including whether any request for electronic media coverage will be filed, and if so, how the court will rule on such a request. At this juncture, the court cannot assess those contingencies with sufficient certainty to conclude that a stay is necessary. The court recognizes defendants's arguments that the alleged injuries arise not merely from the possibility of future media request, but from the operation of the framework established in the court's May 8th, 2026 order while appellet review remains pending. The court has carefully considered that concern. However, because any request for electronic media coverage remains subject to case specific review, and because no determination regarding coverage of the preliminary hearing has yet been made, the court concludes that the asserted injury remains contingent rather than immediate. On the present record, the possibility of future electronic media coverage does not establish a sufficient concrete basis for staying all proceedings pending interlocatory review. The court's denial of a stay should not be understood as a determination that the defendant's concerns lack merit. Rather, the court concludes only that the current record does not establish that such concerns have matured into a concrete and immediate threat request uh requiring present intervention. Given the procedural safeguards available to ensure the selection of impartial jury, defendant has not established irreputable harm warranting a stay at this time. In balancing the equities, the court must also consider harm that a stay would impose upon other interested parties. The state argues that delay may impair the orderly presentation of evidence, increase risk of faded memories, and affect witness availability. The for court finds those concerns legitimate and entitled to consideration. Additionally, the victim representative has formally asserted her right to a speedy disposition of this matter. Under the Utah Constitution and and Utah Code, victims possess important rights to proceedings free from unreasonable delay, and courts are obligated to consider those interests when exercising discretion in criminal cases. The court acknowledges defendant argument concerning victim's rights and defendants constitutional protections. However, because the court has concluded that the defendant has not demonstrated a sufficiently concrete threat to those protections on the present record, the court finds that interests favoring the continued progression of the case weigh against imposing a stay. The court continues to adhere to the reasoning set forth in its May 8th, 2026 camera ruling and its interpretation of Utah Rule of Judicial Administration 4-41.01. 01. At the same time, the court recognizes that reasonable jurists may disagree regarding the proper application of that rule in a case receiving this degree of public attention. The court further recognizes that the Supreme Court's request for responses indicates that defendants's position of petition presents substantial issues warranting careful appellet consideration. The court does not regard the Supreme Court's request as a routine procedure event and acknowledges that the issues raised are of sufficient significance to merit serious review. The court expresses no opinion regarding whether the interlocatory review ultimately should be granted. The existence of substantial legal question the existence of a substantial legal question however remains distinct from the separate question presently before this court. Whether the defendant has demonstrated that a stay is presently necessary pending further review. The court remains persuaded that the procedures established in its May 8th 226 order are consistent with rule 4-41.01. Any future requests for electronic media coverage will be evaluated on the specific record then before the court after affording the parties a full opportunity to be heard pursuant to the procedures previously established. Finally, the court concludes that the public interest presently favors allowing this matter to proceed in the ordinary course. The public possesses a substantial interest in the fair, orderly, and timely administration of criminal justice. The court further recognizes that public confidence in the judicial process depends both upon transparency and upon the present preservation of constitutional trial rights. The court remains committed to safeguarding both interests throughout these proceedings. Staying the preliminary hearing while the Supreme Court considers whether to grant discretionary interlocatory review would result in additional delay despite the absence of a presently demonstrated need for such relief. The court recognizes the seriousness of defendants concerns and the significance of the issues presented before the Supreme Court. The court further recognizes that concerns regarding pre-trial publicity and electronic media comp cover coverage implicate important constitutional values and warrant careful judicial review. Nevertheless, the potential prejudice identified by defendant has not yet matured into a concrete and immediate threat requiring intervention in form of a stay. Established procedural safeguards remain available to protect defendants right to a fair trial should further circumstances warrant their use. By contrast, the state would impose an immediate and concrete burden upon continued progression of this case, including the interests of the state, witnesses, and victim representative as well as the broader public interest in the timely administration of justice. Nothing in this order should be construed as foreclosing defendant from Renewing an appropriate request for relief should further developments materially alter the circumstances presently before the court. Should future developments demonstrate a material difference of level of publicity, media exposure, jury contamination risks or other circumstances affecting defendants fair trial rights. The court will not hesitate to revisit appropriate protective me measures. Likewise, nothing in this order predetermines how the court will rule on any future requests for electronic media coverage of a particular proceeding. Accordingly, the defendant has not established that a stay of the proceedings is presently necessary or appropriate. It is hereby ordered that defendant's motion to stay pending interlocatory review is respectfully denied. And that concludes the order of the court as it relates to >> Mr. Novak, >> thank you. >> Um, on the same subject matter and with respect to the timing laid out in the court's May 8th, 2026 order. Um, we have a concern on behalf of Mr. Robinson that for the court to well, let me just back up. There has been a request for electronic media coverage in every single hearing in this case. So, I think it's fair for the court and the parties to anticipate that there will be a timely under the May 8th ruling request for electronic media coverage for the preliminary hearing. The court set up a what I'll call a briefing schedule for how the parties um respond to that request for electronic media coverage. But it appears to us that the court wouldn't rule on the request for electronic media any request to prohibit or limit electronic media coverage until the morning of the preliminary hearing. Uh, and I think that that creates um some problems at least for Mr. Robinson because if the court were to disagree with the relief Mr. Robinson seeks, we have no opportunity to seek review of of your honor's order. and the court just laid out um its acknowledgment that there are serious constitutional issues which other jurists may disagree with visav the court's conclusions. So the request is that the court modify in some way the timing of that um litigation so that the parties and the media can have a and their council can have a ruling sufficiently before the first day of the preliminary hearing so that if some um judicial review is going to be sought, it's not happening after the preliminary hearing. has already begun. >> No. And I I appreciate that, Mr. Novak. I I note your concerns. And it is for that very reason that the court modified what was the procedure before, which and please correct me if I'm wrong. I'm I'm kind of going off my memory, but the media was required under the rules to give was it one day notice before the hearing? >> It was something like that. So I so the notice >> hold on I just I want to finish. Sorry but I appreciate you. Uh and so the court expanded that to allow briefing where under the current rules as they're stated now it wouldn't even allow for briefing. It would uh create the a greater issue that you're proposing because you wouldn't even be able to file a motion. No response and no reply. Uh the the intent of the court was to sufficient notice or or more notice than the rule currently allows to allow briefing to allow that to be presented and for the court to consider that uh as opposed to making a snap decision the morning of the prelim. So the court's coming in with more information than simply the request for media coverage being filed the day before and then and then parties trying to come up with an argument and the court trying to make that decision on the day of trial. And so that's the difference and and the court anticipated that concern and wanted to give the parties that ability to articulate their concerns and allow the court sufficient time to consider those arguments and weigh those arguments against the constitutional rights of all parties and and and render the best decision it can. >> So I acknowledge all that. I agree with all of that. I appreciate all of that. What I'm referring to is Mr. Mr. Robinson's or depending upon how the court rules the state or the media's opportunity to seek interlocuatory review if as your honor um states um it is true that what has to be shown is the harm under facts that relate specifically to the preliminary hearing. Okay. So, the court has denied what I'll call a more general blanket request to preclude electronic media coverage. The court has said it's going to take it up on a hearing by hearing basis. And the court has also said that reasonable jurists may disagree with the court's substantive conclusions and the court's ruling on our request for a stay. And what I'm suggesting respectfully is we may be in the exact same place. one of the parties may be in the exact same place uh in the moments before the preliminary hearing at least presently is scheduled to begin on July 6th. So my question is, can we get a ruling from the court sufficiently before July 6th so that if some party seeks a stay and interlocatory review, we're not doing that on July 6th or July 7th or July 8th because by that point in time, it's too late. So we could have a ruling by WebEx. We could have argument and ruling by WebEx. I totally respect that the court has a very busy calendar and I also understand that the preliminary hearing is starting two days after the 4th of July um which this year is a big deal. So what I'm trying to just do is plan ahead and think about whether the schedule that the court set which we agree makes a significant difference in our ability to litigate before your honor the issue a way to resolve this. so that we also have the ability to seek review before it's too late. >> We're literally talking about the last few days of the week before. That's I think what we're talking about. >> And I appreciate that. And where I'm coming from is the court cannot issue anticipatory rulings. I I can't go off hypotheticals. And I understand what you're saying. I recognize that media requests have been filed, but I can't issue a hypothetical ruling. it has to be squarely before me and and and I respect what you're saying, but I imagine that you're probably preparing well, I'm not going to assume it's not appropriate, but perhaps you are already preparing those motions and anticipation of such uh media requests being filed and in in addition to anything else that you may consider and rightfully so. And so it and there's also sufficient time between now given the ruling that the stay is not being granted knowing that the preliminary hearing is moving forward that it appears that there may be sufficient time for the parties to prepare accordingly. Again, the court needs to wait until it squarely uh that that media request is is been filed. Uh whether the parties file motions, it's possible that the parties may or may not. I I can't anticipate that, but I need to wait until it's actually before me as opposed to trying to read the tea leaves and guess. >> I'm not asking the court for tea leaves, so maybe I've been obtuse. What I'm saying is that the court's order currently provides that it will issue its ruling on any objection to an EMC request um the morning of the hearing. And that's the problem. I'm not asking the court to issue a ruling now. I'm not asking the court to assume there will be an EMC request. I can tell the court that if there is an EMC request, we will file an objection to that. Um, which shouldn't be a surprise. And so what I'm just saying is for the orderly administration of justice and in light of the um possible judicial divergence of opinion that your honor has acknowledged, we are asking the court to build into the schedule that it has set for any objections to any EMC request that may be filed um a period of time before the subject hearing at which the parties would receive a ruling. And I if I suggested in my um statements that we are actually asking the court to assume that there's an EMC request and that we would oppose it and that we're asking for a ruling now. We're not. We think there should be a request and there should be briefing. We're just asking that the court build into the schedule um a ruling moment that allows us if necessary or some other party if necessary to seek review. >> Thank you, Mr. And the other kind of uh X factor is how quickly the parties respond. If a motion is filed and let's say an EMC comes out on day one and a motion is filed on day two and then the state resps day three, there may be more time and and and so it one of the variables is how quickly the parties respond which the court doesn't control. And so that's a factor that uh may allow the court additional time to accomplish that. And this court has tried to be very diligent in being in expediting addressing motions and not letting them sit too long because I know it's important to defense and to the prosecution and to all parties. And so the court is uh cognizant of that and and will respect that and issue its rulings uh or or its analysis as quickly as possible. afford you that ability. So the court did set deadlines for briefing and what I will do when there's an appropriate break in today's proceedings is we'll speak with council for the state about whether we can agree to modify that briefing schedule that the court set so that the the EMC request and the parties responses to it can be submitted to your honor more in advance um further in advance of July 6th than the current schedule allows. And then if we can agree on something or if we can't, we will let the court know that. And I'm still going to ask the court to um look at its calendar and suggest a hearing date, if necessary, on what we I think can fairly anticipate will transpire. again because the media has requested that their cameras be present at every hearing and it would seem to me that they would not miss the opportunity from their point of view to broadcast the preliminary. >> Thank you, Mr. MBA. I appreciate you addressing those or bring those concerns. >> So, we'll bring that back to the court at the appropriate time today. >> Thank you, Mr. Novak. Does the state Yes. Thank you, your honor Christopher Ballard. On behalf of the state, um just like to point out that even assuming that there's a request for electronic media coverage, which we the state fully assumes there will be um and uh that the court grants that request. Um the equities as far as whether to whether or not to stay things to allow the defendant to then appeal that ruling. That's really not going to change. The the circumstances that the court's already articulated in its order today, those equities really aren't going to change between now and the preliminary hearing. And the the appropriate procedure for reviewing a court's orders on electronic media coverage is not to pause the trial proceedings and allow defendant to seek interlocatory review of every potential of every order. uh the defendant can certainly do that. He has the right to do that, but that's not the appropriate remedy. I just remind the the court of the the United States Supreme Court statement in Chandler versus Florida where it said that the appropriate safeguard against potential prejudice from pre-trial publicity is the right to demonstrate that the coverage compromised the ability of the particular jury that heard the case to adjudicate it fairly. So, defendants claiming he doesn't have a remedy. he does have a remedy and the remedy is to challenge the court's media order um at the plenary appeal after this case is complete. >> Thank you. >> Thank you, Mr. Balot. >> All right. Anything further before we >> Yes, we can take this up whenever the court wishes to take it up. And in addition to the two uh substantive issues which the court um countered for today, which is the hearing on the court's issuance of an order to show cause contempt and the argument of a pending and fully briefed motion concerning the constitutionality of hearsay evidence in a preliminary hearing. Um, Mr. Robinson filed with a motion to classify a document which I'll just describe as having privately been filed seeking certification for an out ofstate subpoena for the preliminary hearing. Um and I'm going to and the court is nodding. So I understand that the court is aware of it. >> I I've I've reviewed that. >> Okay. So again, because of timing issues, um we would like at some point today to um receive from the court um a briefing schedule on that because outofstate uh enforcement of this subpoena if the court certifies it is obviously um something that takes a little bit of time. And in light of the court's denying denial of the stay for the moment, we have to assume that if that certification is granted at our request, um, and by the way, we've served counsel for the witness with that request as well. >> Um, that we need time for, um, an outofstate council to appear in the appropriate jurisdiction and get an order, um, enforcing that. I I can't imagine that if the court granted the certification that there's going to be an issue about serving the witness, but we don't have a valid subpoena unless your honor certifies the application and then a court in the appropriate jurisdiction um enforces it. >> Thank you. And I note that uh that was filed last night around 8 8:04 p.m. >> It was >> what you're referring to. >> Yes, that's exactly what I'm referring to. >> All right. Uh thank you. We'll the court will take that uh under advisement and and figure out court will we'll address that at some point today. Thank you for bringing it to the court's attention, Mr. Novak. council for the state, could you provide a brief status update regarding discovery? contin. >> Oh, Mr. McBride, if you wouldn't mind starting over and uh yeah, that's where the live mic is. >> Understood. Thank you. Ryan McBride for the state. As of June 9th, 2026, we sent 11 additional items to the defense. Um 10 of these items uh were notebooks that were obtained and requested from the defense um in the discovery review. Um one is an 11:02 statement that was provided in preparation for the preliminary hearing. Um this is everything essentially everything we have uh from uh the investigative agencies to date. The percentage provided to the defense is approximately 100%. All right. Turning to the defense motion for an order to show cause for alleged contempt of court. This is set for an evidentiary hearing in argument. The court has reviewed the briefing submitted and each side will be afforded 90 to present evidence and argument. Defense intends to reserve time for rebuttal. Council should Accordingly, following argument by defense or a presentation of evidence, the court will take a 10-minute recess and then turn to the state. Because this is the defendant's motion, the defense will >> Thank you, your honor. Um, Mr. Robinson would first ask the court to direct Mr. Ballard to take the witness stand. >> All right. Mr. Ballard, if you wouldn't >> All right, Mr. Ballard, if you wouldn't mind uh getting situated to your left or water bottles and after you're seated, if you wouldn't mind pulling that microphone close to you to ensure that the record picks up your testimony. Thank you, Mr. Novak. It's your witness. >> Mr. Ballard, what are your formal titles within the Utah County Attorney's Office? >> Okay. Uh you're testifying here today because the court has issued an order to show cause um regarding contempt of a court order. And so there's a white notebook that I placed up there. Do you have that, sir? >> I do have. >> All right. Why don't we first turn in that notebook, and your honor should have one as well. >> I don't. passed it up. >> Thank you. I now have it, Mr. Novak. >> Mr. Ballard, why don't you turn to and just let me know when you've seen it and had a chance to look at it. >> I've seen it. Thank you. >> Okay. Is this the order entered by this court on September 16th of 2025 entitled protection order ray pre-trial and trial publicity? >> It appears to be yes. >> All right. And your honor, I understand that a court exhibit doesn't technically need to be received into evidence. Of course, the record is what it is. It could take judicial notice of it, but I just think for completeness of the record, would the court mind if we um ask the court to receive exhibit 8 into evidence >> to the state? Any objection? >> And if you wouldn't mind, so if as I turn to both parties, because your microphones are are turned off, if you wouldn't just mind projecting a little bit more so the record picks it up. >> Thank you, Mr. McBride. All right. So, is this going to be defense exhibit number >> eight? >> They're pre-marked, so we'll just stick >> just sticking with those numbers. >> I think it's easier for the record than going changing the order. >> I appreciate that. Defense exhibit 8 is admitted and may be published. >> I think and Mr. Ballard um did you read this order either the day it was entered or shortly thereafter? >> Yes. >> So you were aware of it shortly after it was entered. Correct. Why don't we also turn now to exhibit nine? And same question. Please let me know after you've had a chance to look it over. >> I've looked at it. And is this an order clarifying, let me be more clear, an order of this court dated December 15, 2025, clarifying at the state's request the order that is now exhibit 8. >> Yes. >> And could the court receive into evidence, please exhibit nine? >> Thank you, Mr. McBride. With no objection being made, this is entered into evidence as defense exhibit 9 and may be published. >> And Mr. Ballard, with respect to these two orders, would you agree with me that subject to the clarification, these orders track Supreme Court rule of professional >> Yes, they they track that rule. They require both parties to abide by that rule. >> And would you agree with me that you are a prosecutor also subject to rule 3-3.8? >> Yes. >> And that everybody in your office is a prosecutor under the um within the meaning of 3-3.8. >> The attorneys in our office. Yeah. >> It's the attorney, right? again, your honor, these are rules of professional practice, but I am going to ask the court to receive into evidence for purposes of this hearing both exhibit 10, which is a true and correct copy of rule 3-3.6 with its comments and exhibit 11, which is rule 3-3.8 with its comments. >> No objection. With no objection from the state, defense exhibits 10 and 11 are admitted and may be published. >> And Mr. Ballard, were you familiar with these rules uh prior to the court issuing the orders which have now been received as exhibits eight and nine? >> Yes. knew what was required under the court's pre-trial publicity orders? >> Yes. >> Did you have any inability to comply with those orders? >> No. Mr. Ballard, would you look at exhibit >> And again, please let me know when you've had a chance to look it over and I looked at it. >> And do you recognize this to be an email to council for Mr. Robinson on December 22nd, 2025? >> Yes. >> And the subject of this email was the your notice of intent I'm sorry, the state's notice of intent to conduct non-destructive testing. Correct. >> Correct. >> All right. Um, your honor, before I go any further, could the court please receive into evidence exhibit two, >> Mr. McBride? >> Um, if I can have just a moment. All right. No objection, but as it goes to publication, this includes email addresses. If this is if this is made public, those email addresses should be redacted. >> All right. Just know that >> uh we will provide the court with a redacted version of the exhibit that uh masks um all of the emails that are email addresses that are listed um at the top of the of the exhibit. >> All right. um based off the states uh not making an objection but noting requesting a redacted version with removing emails uh defense exhibit 2 is admitted. >> Thank you. So Mr. Balor just so the court because the court um has probably never seen this email. I want to go over with you the the context and the purpose of this email. Um, the state had determined back in this time period, which is December of 25, that it wanted forensic examiners to do some further testing of a bullet jacket fragment and lead fragments. Correct. >> Yes. And was the state's responsibility to notify let's just say change the nature of the physical evidence. Correct. >> And so what you were doing in late December of 25 was notifying us privately that the state intended to conduct some additional testing. Correct. >> Correct. And you state in this email that the reason why you don't want to publicly file this notice of intent to conduct further testing at least at that time um was because of a comment to rule 3.6. That's the same rule 3.6 that the court has received into evidence as exhibit 10. Correct. >> Correct. And what you say is that the comment to rule 3.6 of the Utah Rule of Professional Responsibility lists quote the performance or results of any examination or test close quote and open quote the identity or nature of physical evidence expected to be presented close quote as subjects to avoid in public comments. Those were your words, right? >> Correct. And then I would also now like to ask six. And I know I will sound repetitious, but please look it over and let us know when you've reviewed it. >> And is this an email that you sent to one member of Mr. Robinson's defense team? And then um it appears that it was copied to other um attorneys in your office. >> Correct. >> Your honor, before I go into the details of it, could the court please receive it into evidence as exhibit six with the same proviso, which is that we will provide the court at a later time with a redacted version that masks the email addresses. >> No objection. But there the email addresses are not included here. So, >> well, there is one at the very bottom, the signature for Mr. Balor. >> Thank you. Excuse me. >> No worries. >> And and Miss Visitors below that as well, your honor. >> All right. >> But I think we're all on the same page, but what what to do? >> It sounds like it. So, the states ex I'm sorry, defense exhibit six is admitted with the following redactions being noted. Thank you. >> Okay. So, Mr. Ballard. Um, you're informing us that the state no longer believes that filings concerning this additional testing from the state's point of view should remain I don't recall exactly um the the question that Miss Visser had had posed to me and that I was responding to, but the general the email speaks for itself. >> Okay. So the email says in the top paragraph, "But now that the court is involved, we do not believe that it is necessary to keep court filings private or even file redacted versions on this issue." >> That's correct. >> And this issue refers to um whether the state um can proceed with the further testing um and the and Mr. Robinson's objections to the way in which the FBI wanted to do the testing. Correct. >> Correct. >> I mean, basically, okay. So, so that's that dispute. Um, what you say in the second paragraph is the ethical rules on pre-trial publicity apply only to extrajudicial statements. >> Right. >> Correct. And so what you're saying is that if we talk about physical evidence, testing that has been done, testing will be done, what the results of the testing are. If we talk about those, we mean in council who are subject to the rules and the court's orders in filings, we're consistent with rule point rule 3.6. Right. >> Correct. But if we talk about them extrajudicially, that's prohibited under 3.6. >> Correct. >> Unless u we're talking about public records record unless we're talking about a filing. >> I'm I'm not sure what you are modifying with the word unless I'm not trying to be difficult. Are you saying that you can make extrajudicial statements about anything you want that's in a public filing without violating rule 3.6? >> Is that what you mean? >> What I mean is exactly what the rule allows and that says that uh a lawyer may state information contained in a So if you file something that relates to issues that the rule says should not be commented upon extrajudicially. You're saying that that opens the door, the mere filing of something opens the door to making any extrajudicial statement that you want about that subject matter? >> No, that's not what I'm trying to >> No. >> Okay. So, why don't we let Mr. McBride ask you about that? um interpretation because I'm going to move on to my next question. and this is not an email from you but it is one that you are copied on. It's actually a series a couple of emails and a letter all together in exhibit one. Do you see all that? >> Yes. >> Okay. So, first let me ask you if you are familiar with the first string of emails that basically start writing to I mean the the email addresses are redacted. This is how we received it. But let's just say writing to many people who are in government or in law enforcement. Would you agree with that? >> Yes. >> All right. And you're copied on that email as well, right? >> Yes. >> All right. Um, and then if you go to the third page and I should back up, Mr. McBride's original email to the law enforcement and government um, individuals I was referring to was September 15 of 2025, right? >> Correct. which is actually the day before the court entered its first publicity order. Correct. >> Correct. >> So if we go to the third page of this exhibit, this is an email from you also a couple days before the court entered its September 16th, 2025 order. And you're writing to Well, do you are you familiar with this email? >> Yes. >> And now let me go ask you to look at pages four and five. Those are the last two pages, your honor, of this exhibit. This is a letter written >> Yes. >> Dated also September 12th, 2025. >> Yes. You're familiar with that one as well? >> Yes. >> All right. So, your honor, I would ask the court to receive into evidence subject to any redaction with Mr. McBride thinks is necessary of emails. Um although I think they've all been redacted before produced to us. All five pages we're asking the court to receive in evidence. >> No objection. >> All right. This is state uh defense exhibit one. No objection from the state will be admitted. Okay. So let's go back to page one. Mr. Ballard >> Well, Mr. Ballard, you know generally who the people are who this email was sent to, right? the names behind the redactions >> generally. Yes. >> Can I just refer to them as law enforcement partners? >> Yes, I think that's accurate. >> Some are with some have email addresses that are local law enforcement agencies. >> Correct. >> Um including Utah County. Correct. >> Correct. >> Spanish Fork. Yes. >> Utah Valley University. Not a law enforcement entity, of course, but they have um a law enforcement department at UVU. >> Correct. >> All right. Um and um at least a couple recipients are with the FBI, right? >> Correct. >> All right. And so in this email, Mr. McBride says at the bottom, quoting rule 3.6, Six, there are certain subjects that are more likely than not to have a material prejudice effect on a proceeding partly particularly when they that could result in incarceration. You see that? >> Yes. And then he says these subjects relate to and then on the next page I want to draw your attention to um Roman numeral three the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test or the identity or nature of physical evidence expected to be presented. Do you see that? >> Yes. >> Do you agree with Mr. McBride's assessment that rule 3.6 prohibits extrajudicial statements about that topic or those topics. >> Yes, this email represents our efforts even before the court issued its order to recognize that we had obligations under rule 3.6 and that we were careful to abide by those obligations. >> You were careful to inform law enforcement partners in the email of their obligations. >> Correct. Yes. >> And then item four, Roman numeral 4, also in on page two of the exhibit, subjects that are more likely than not to have material prejuditial effect on a proceeding, any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration. >> Yes. All right. Now, if we could turn to page to what I will describe, unless you disagree with me, as law enforcement partners. You agree with that? >> Yes. asking them to carefully review a letter which is the following page from Mr. McBride dated September 12th. also The letter is the letter is addressed to all personnel likely to make media statements regarding the Charlie Kirk case. And the letter says just below that, the Utah County Attorney's Office has an ethical obligation to quote exercise reasonable care to prevent investigators, law enforcement personnel, close quote, and others from making public comments which quote have a substantial likelihood of materially prejudicing close quote the trial process. That's what Mr. McBride wrote in the letter that you forwarded to chiefs and others. Correct. >> Correct. >> And Mr. B McBride's letter also says that prosecutors have a special duty to ensure that law enforcement and other officials adhere to these rules, citing rule 3.8E. Correct. >> And then Mr. Mr. McBride identifies statements that should be avoided or I should say yes statements that should be avoided. Do you see that? Statements should avoid the following colon. >> Yes. >> All right. And there are four bulleted items there. Right. >> Yes. >> One of them, the third one is opinions about the defendant's guilt or proper punishment. You agree? You agree with that? Correct. >> And do you agree with Mr. McBride that prosecutors have an ethical obligation to both avoid those themselves and to take special care to make sure that law enforcement personnel and others refrain from making such comments? >> Yes. >> And then the other statement that should be avoided are any other statements which could risk violating the defendant's right to a fair trial. >> Correct. And would you agree with me that the any other statements phrase by Mr. McBride in this letter would include the more specific prohibition on extrajudic extrajudicial statements about the performance or results of examinations? >> Yes. >> Tests. Yes. >> I'm sorry for interrupting. The answer is yes. All right. I'm now going to turn your And I want you to take a moment to look at that. Tell me if you've seen it Yes, I I recognize this. Okay. Do you recognize this as an article concerning this matter in which you are quoted? Yes. how is it that you came to be quoted? Well, actually, let me ask you this question. If you look on the second page of this exhibit down toward the bottom underneath the image of a black screen, the paragraph starts, "Attorney Christopher Ballard tells us, quote," and then there's a very lengthy um well, there's a few sentences in quotes. Do you see that? >> Yes, I do. >> Okay. Did you tell TMZ that? >> Yes, I did. >> All right. So my question is, was that over the telephone? Was it an email? Was it a face-to-face meeting? How is it that your quote was communicated to a representative, a media representative of TMZ? >> It was a telephone conversation. >> And did you only have one telephone conversation with TMZ? >> Yes. And how was it that the telephone after um the defense filed this motion to continue the preliminary hearing? There was a statement in that motion that garnered quite a bit of media attention. Um, I came to be aware of that media attention and uh the headlines that that statement had generated. And there were quite a few media inquiries to our office uh based on the statement in the defense's pleading and the media the media stories that that statement had generated. TMZ was one of the uh media entities that called our office. I received an email from someone else in the office. I can't remember who it was exactly that said I got a call I they received a voicemail from a reporter at TMZ. that employee in our office forwarded me that voicemail and the voicemail just basically said we'd like we have some questions about uh these issues that that statement in the motion to continue had generated and so I returned the phone call. >> Before you return the phone call, did you have any discussions There should be extrajudicial statements about um the issues that you're describing. >> Yes. >> Okay. And did you discuss that with Mr. Gray before you returned that phone call? >> Yes. >> Did you discuss that with um Mr. McBride before you returned that phone call? >> No. >> Did you discuss that with anybody other than Mr. Gray before you returned the phone call? >> I know for certain that uh Mr. Gray and I discussed it. I I have a vague memory that uh Mr. Grunander was involved at some point. Um but my memory is that Mr. Grunander was out of the office uh the day that all of this was breaking and uh so he may have just been informed brought into the loop uh after the fact by telephone. But I do recall that very early in the morning um I think it was of March 31st because my memory is that um the media story that launched all of this interest um was posted I think late Monday afternoon uh mountain time and so by Tuesday morning I was getting a lot of media inquiries um and I think Mr. had also um my memory is that Mr. Gray received a phone call from Turning Point USA asking us if there was any merit to these media stories and that's when Mr. Gray came into my office. My recollection it was first thing Tuesday morning and we discussed these these media stories. >> So Turning Point USA reached out to Mr. Gray. And Mr. Gray came to speak with you all about the same time that you received this forwarded voicemail from a TMZ reporter. >> The voicemail from TMZ came later in the the day. It was before noon, but was a busy morning. There were a lot of media inquiries that were that were coming in that morning. Um, and I know Mr. Gray and I met um I would first thing Tuesday morning to discuss this issue >> and you and Mr. Gray had a conversation which led to a decision to return the phone call and make a statement to TMZ. >> I did not discuss every media inquiry with Mr. Gray. I think I just generally told him uh he he brought up the issue that there were there were concerning media reports out there, potentially prejuditial media reports. Um I confirmed to him that I was getting media inquiries and uh we generally discussed whether it would be appropriate to respond to those. >> So did Mr. Gray know that you were going to call TMZ back? >> No, I never I didn't discuss with him every media inquiry. Our our conversation was general. We reviewed the requirements of rule 3.6. Um I don't recall that we actually pulled the rule and read it, but we were familiar with the rule and uh it's what it prohibits and what it allows and and we believed that under I think it's subsection C and also under the court's order which specifically references subsection C of the of the rule that we could respond that this was potentially prejuditial media stories that we did not generate and that the rule allowed us to be able >> Were you aware of any extra judicial statements by the defense which generated that media coverage. >> No. And nor does the rule require that. >> Well, that's your legal interpretation of the rule, right? >> No, that's not my legal interpretation. >> I mean, you were here when Mr. McBride argued to this court at the last in-person hearing that as long as there's some uh negative coverage out there, regardless of the source that the state has the has leave to make extrajudicial statements on the same subject matter. >> I heard that argument. Yes. >> All right. And that's a legal argument, right? >> Yes. >> Okay. All right. So, here's my question. the um information in the TMZ article which is which purports to quote you on the second page of exhibit three. >> Yes. >> What you said? >> Yes, it's accurate. I don't know that it's word for word for what I said, but it did not it accurately captures u my statements to the Okay, >> Mr. Novak, and I don't mean to interrupt you, but are you intending to admit exhibit number three? >> Yes. Now that Mr. Ballard has said it's an accurate sum uh recitation of what he told TMZ, um I would now ask the court to receive it in evidence. >> No objection. All right. So in that quote, you tell this TMZ reporter um what your views are on bullet fragment analysis. I wouldn't characterize it as my views, although I guess you could say it's my understanding in general of how bullet fragment analysis works. >> And you're also commenting on the contents of the um results of the testing. When you say the fragment didn't contain enough detail for the examiner to say one way or the other, that's you basically commenting on the content of the results of the examination as you understand them. Correct. What I'm commenting if you if you look at the first word I say generally and generally when you have an inconclusive result the reason that you get that inconclusive result is you do not have enough detail. >> Okay. But now you're again testifying about your understanding of bullet fragment analysis. And I'm just asking you if you told this reporter, it's an extrajudicial statement, what your views are on bullet fragment analysis and the conclusions in a report about bullet fragment analysis. >> Objection. The statement speaks for itself. Would you like to respond to that objection, Mr. Novak? >> Well, I don't think that the answer to the last question was responsive. So, I was trying to go back to the question. I guess I could have moved the court to strike the answer as nonresponsive. >> I'll sustain the objection. >> And then in the same quote, Mr. Ballard, after talking about bullet fragment analysis, you say there's just not enough there to determine whether the bullet was fired by a particular firearm. That's you telling a reporter what you believe the forensic testimony in a proceeding will be. >> No, what I'm what I'm referring to is generally the types of circumstances that could produce an inconclusive result. Okay. But you say there's just not enough there to determine whether the bullet was fired by a particular firearm. You're referring to the fragments recovered. Correct. >> No. What I'm referring to, you got to read that in context with the first uh sentence. I'd like to read it in context of the next sentence which talks about the evidence in your view um being sufficient to prove that Mr. Robinson committed the murder. You're commenting on the bullet and then you're commenting on your opinion about the sufficiency of the evidence. >> So here's how the the the quotes came about. The reporter first asked me about these uh the media reports and the misleading statement in the defense's motion that the bullet that was recovered did not match the rifle. And I responded to that and said, "Generally, when you have an inconclusive result, it can be caused by these general types of uh circumstances." The reporter then asked me, "Well, do you still have a and focus specifically on whether we the the additional media reports out there that the supposed inability to match the bullet to the gun meant was a bombshell uh finding for our case and that it that it completely completely undermined the foundation of our case. So that next statement was responding specifically to that question as to How does this specific um how do these specific reports and the representation in the defense's motion, how does that affect our ability to I'm going to move to strike portions of the statement which mischaracterize the defense pleading as misleading. This court has never made such a finding and we had argument about Mr. um Bri's interpretation of what is and is not exculpatory evidence. I think we all remember the court's comments on that. So I think without trying to parse it too much, I just ask the court to um strike the portion of the statement which characterizes the defense pleading as misleading. >> Mr. McBride, >> I think the court can take this statement, the testimony um for the value it it deems appropriate. Testimony is asking about Mr. Balor's perceptions and that's what he's testified about. Statement in defense council's pleading is a matter of public record and what we're really talking about here are the reports that were generated from that statement. So I would ask the court not to strike it but to take it for the value it sees appropriate. >> All right. The court uh recognizes first that has what defense presented in their motion was misleading but also notes that this is the personal opinion of Mr. Ballard and makes that distinction. Thank you. >> Thank you, honor. So, Mr. Ballard, what you're saying is that you had how long was the conversation with the TMZ reporter? I think it was less than 10 minutes. It might have been just about five minutes. >> And so the quote is a compilation of your statements over the course of the five or 10 minutes. Right. >> Right. And and strictly in response to the questions that the reporter was asking me. >> But you certainly had the discretion to not answer the questions, right? >> Yes. You could have said, "I can't comment on specific evidence or what I think the quantum of evidence is." Right? You could have said that. >> Yes. And I didn't comment on any specific evidence. >> Well, when you said to when you refer to the bullet, you're not talking about the bullet fragment removed from Mr. Kirk's body. >> No, I'm talking about general circumstances that can produce an And isn't it fair? Wouldn't you agree with me that one of the reasons why extrajudicial statements in many circumstances and we assert in these are prohibited is for exactly that reason that reporters may for either take statements out of context or misconstrue things. And there's nothing you can do about it because once it's published, it's published, right? >> Once something's published, it's published. Yes. >> Okay. Why don't we turn to exhibit four, please? >> And again, let me know when you've had >> Okay. And um did you have a separate conversation with a reporter from USA Today? >> So some a reporter from USA Today wrote you an email and you responded, >> correct? >> Did you um preview your response with Mr. Gray? >> No. Again, we we just had a general conversation about whether rule 3.6 allowed us to respond to the prejuditial media stories that were circulating. And we, Mr. Gray and I agreed that it would be appropriate to respond under subsection C. and he left it to me to handle the responses. >> Okay. So, um have you looked at the statements attributed to you in exhibit 4? >> Yes. >> Are they accurate? >> Yes. >> The court received ev evidence exhibit 4. >> Mr. McBride, >> no objection. >> Right. With no objection, defense exhibit 4 is admitted. >> Thank you, honor. The third page, Mr. Ballard of exhibit four, which is a total of pages. So, it's the last page. Um, there's some paragraphs down at the bottom of the third page. On your copy, are they highlighted in sort of purple? >> Yes. >> And is the court's copy highlighted in purple? >> It is. >> All right. So, Mr. Ballard, do you see the statement I'm sorry, the paragraph, the second to last paragraph that says >> Yes. Ballard confirmed the FBI and ATF are adding information to the initial reports which prosecutors expect will include data supporting the initial conclusions. Do you see that? >> Yes. >> All right. Is that an accurate recitation or summary of what you said in your email? >> Yes. And so what you're telling this reporter is something that you understand the FBI and ATF will be doing >> Yes. >> And you're also telling this reporter what you think >> Yes. This was in response to um statements in the the defense's motion to continue the preliminary hearing where the defense represented that they did not have the supporting data, the underlying data that supported the initial conclusions and the reporter asked me uh whether that had been produced and I was responding that I anticipated that the FBI would produce the data that the defense was requesting. Was that a matter of public record at that time that the FBI and ATF were quote adding information to the >> I don't believe it was a matter of public record other than the defense had requested additional information and I was confirming that we were facilitating that request. You were telling a reporter that we had made a discovery request and that you were complying with it. >> Correct. >> But you were characterizing what the FBI and ATF were doing with their examination reports, >> right? >> No. >> It says the FBI and ATF are adding information to the initial reports. That doesn't sound to me like producing additional discovery. That sounds like >> objection. Council's testifying. >> Council, would you like to respond? >> I'll rephrase the question. >> All right. So, I'll sustain the objection. You may continue. >> Thank you. Wouldn't you agree with me that what you are telling this reporter is that forensic examiners are changing their reports or adding information to their reports as opposed to your office is obtaining additional background materials related to the testing? >> No. >> Um, exhibit five. Have you are you familiar with that? Did you have a conversation of any type with somebody associated with Politifact? P O L I T I F Act. >> Yes. Again, this was an email conversation with the reporter uh that's that's credited with the story in And on page two, about a third of the way down, there's a paragraph that starts with quotation marks when the results of a bullet fragment. Do you see that? >> Yes. And that's a quote attributed to you. Correct. >> Correct. >> And then after identifying you, there's another quote attributed to you. >> Yes. >> And are those accurate reiterations of the email you sent? >> Yes. >> Could this exhibit please be received into evidence as defense exhibit 5? >> No objection. And in this second quote in this paragraph, your quote is saying, "There just aren't enough marks on the fragment to make a conclusion one way or the other whether the bullet fragment was fired by the >> That's what that quote says, but you have to read it in context with the previous sentence. >> So, it's your testimony that you're not referring to the rifle found by law enforcement at UVU and you're not referring to the bullet fragment taken from the deedants's body. You're making a general statement about bullet fragment analysis. >> Correct. How did you end up um appearing on Fox and Friends News and being interviewed? >> Uh like many other media organizations, uh Claudia Cowan from Fox News emailed me, asked if I had any comment about uh the defense representation and its motion to continue and the med stories surrounding that and I agreed to uh do a Zoom interview with Fox. >> And did you discuss that with Mr. Gray before you did? >> Not that spec. Again, I didn't discuss any of the specific uh media requests with Mr. Gray. I had we had the understanding that I could respond I should respond to the media requests as they came in. >> How many media requests were there? My memory is uh eight or nine. >> Okay. So, you had a telephone call with TMZ, >> correct? >> Yes. >> And you had email uh communications with USA Today and Politact. >> Yes. >> And you were asked to appear um for a video interview by Fox and Friends. >> Yes. Are there any other media entities who you communicated with directly in any of those ways? Um, parathetically, because we're only aware of these four. >> Um, like I said, there were I think there were at least eight um eight requests. >> Yes. And I responded to all of those. Uh, there I had a telephone conversation with a correspondent for NBC. Um, I can't remember exactly all of the the other news organizations that had contacted. >> Did you in in any way collect the resulting news stories in which you are quoted? >> No, I I have some of them. I didn't go through I didn't make a search to find everywhere that I was quoted and collect those. >> Okay. We would like, your honor, to um show Mr. Ballard exhibit seven which is >> May we publish exhibit seven? >> Well, not before it's admitted. >> Okay. So, we'll show it to Mr. Ballard. >> We'll show it to Mr. Ballard and maybe if the clerk could just show the um show it to the witness before it's published. Mr. Can you look at the screen? Actually, >> it's going to take a few seconds. It's >> All right. Looks like it's on the screens. >> Okay. So, we're gonna actually because of the court's ruling on publishing it, we're gonna show it without the audio and ask Mr. Ballard if he recognizes it. >> All right. Looks like our screens went off here. So, >> Mr. Ballard, is your screen on? >> It's on. >> Okay. Can your seat? >> Yes. All right, we stop for a second. Mr. Ballard, is that you? >> Yes, it is. >> All right. Do you recall doing this interview? >> Yes. >> Did you watch this interview after you were after you participated in it? >> I watched uh this story. Yes. Okay. Is this, as best as you can tell, an accurate um digital copy of that broadcast where you were interviewed by Fox and Friends? >> I haven't heard the audio, but I believe it is based on what I've seen. >> Okay. Well, um, let me ask the court to receive it in evidence, and if Mr. Ballard thinks that the audio is inconsistent with what he previously said, we'll withdraw the >> with that proiso. No objection. >> All right. Defense exhibit seven is admitted and may be published. >> Thank you. We'd now like to play it. And just so your honor knows, the entire thing is no is about 2 minutes and 12 seconds. >> Thank you. >> Rather than trying to cut it up, we'll >> actually. And now we can publish it. So It's on the screen. It's just the audio >> This is always the tricky part with technology. piece of evidence, the bullet that killed the conservative >> Charlie Kirk are pushing to delay an upcoming trial hearing as new details come out surrounding the ballistics report. >> Claudia Cowan joins us now with the latest. Good morning, Claudia. >> Good morning, Lawrence and Brian, and and also to you, Rachel. Nearly seven months after Charlie Kirk was assassinated, lawyers for his accused killer are attempting to cast doubt on a critical piece of evidence, the bullet that killed the conservative icon. In a new defense filing, attorneys for Tyler Robinson say an ATF summary report quote was unable to identify the bullet recovered at autopsy to the rifle allegedly tied to Mr. Robinson. But prosecutors say that report is inconclusive and doesn't rule out a ballistics match to the rifle Robinson allegedly used or to any other firearm. >> The examiners were not able to find enough detail on the fragments to be able to make a determination as to whether or not um they can tie the bullet to the rifle. Law enforcement sources tell Fox that when the bullet hit Kirk, it >> Mr. Ballard, was that your statement on Fox and Friends? >> That was the statement that they chose to play. >> Was that the statement you chose to make? >> Yes. >> And aren't you talking in that statement about the bullet fragment at issue in this case? I prefaced that statement with um the preface that I put on my other statements was that I'm not going to talk specifically about specific test results, but generally when there is a inconclusive result, these are the circumstances that could produce an inconclusive result. >> So your testimony is that the statement that you just made to Fox and Friends is not referring to the bullet fragment in this case. >> So, obviously your office, Mr. Ballard, um, and apparently TPUSA were concerned with what I'm going to refer to as the media spin on the contents of the motion Can can you re >> your office was concerned and TPUSA expressed concern about the way the media was I'm just going to use the word spinning. I think we all know what that means. The the contents of the motion to continue. >> I can't speak for TPUSA because I didn't I wasn't privy to that phone call. Um but our office was concerned yes about the pre prejuditial media reports. >> So my question is whether the goal of these interviews was to influence the reporting or was it to change the public what you were concerned was the public perception of the case. The goal of these interviews was to respond to the specific media inquiries that were being generated by the misinformation that was um circulating about the bullet testing. But there there's a reason why council who are subject to the rules we're talking about here and especially prosecutors subject to these rules and the court orders choose to engage in extrajudicial statements. I understand your position is it's an extrajudicial statement which is permissible under the court order and the rules. I don't agree with you, but I understand that's your position. So, what I'm just asking you about is what you hoped to accomplish. Was it to change um content or was it to influence the public perception of the evidence in this case? >> Objection. Asked and answered. >> Mr. Novak, >> I don't think I I don't think I asked that question. or if I did, the answer wasn't wasn't responsive. Mr. Boward's response to the last question was the goal was to respond to media inquiries. >> Was that the only goal? Just to respond to media inquir I'm sorry, council, I need to rule on the objection forward. >> I'm going to overrule the objection and allow that question to be answered. The goal was to respond to the substantial undue prejuditial effect of the media stories. >> What evidence do you have that there was undue prejudice? We haven't picked a jury yet. >> The the evidence that we the reason that we were concerned about those statements is that it was producing media we were concerned about the media stories that were saying first of all that the bullet in fact did not match and that therefore we had no case that we had brought a groundless prosecution. That was our concern >> which is an issue that can be addressed >> That's one way. >> It's an issue that could be addressed through an expanded jury questionnaire. Correct. It's an issue that could be expanded through additional permpary challenges if the court deems it appropriate. Correct. >> That's another way. It's an issue that could be addressed through individualized voyer. Correct. >> Yes. >> It's an issue that could be addressed under the appropriate circumstances through a change of venue. Correct. >> Perhaps >> a couple more questions and then if I have any more time I'll reserve. >> We have uh 28 minutes remaining. >> Oh wow. before you decided to return these phone calls, answer these emails, and accept an invitation to appear um on Fox and Friends. Did you ask this court to clarify its order in light of the way the media was interpreting the motion to continue. >> No. >> Did you reach out to anybody in Mr. Robinson's defense team and say, you know, whether you guys did this intentionally or unintentionally, the media has misinterpreted your pleading. Can we do something about that judicially as opposed to extrajudicially? >> No. I have no further questions for Mr. Ballard. >> Mr. Ballard, I want to ask you some a little bit of follow up from what first off, uh, I want to ask you, did you intend to violate the court's order in this case? >> No. >> Do you believe you violated the court's order in this case? >> No. Did you take actions to avoid violating the court's order in this case? >> Yes. >> And does some of those actions include being familiar with the order? >> Yes. >> Being familiar with rule 3.6? >> Yes. >> Um limiting your statements to the media to those necessary to address the issues prejudicing your client? >> Yes. >> Um did you include a statement in some of your statements that there's the defendant was entitled to a presumption of innocence? >> Yes. and a statement that the jury would decide the defendant's guilt as the finder of fact in this case. >> Yes. >> Um on March 30th uh at about uh 4:43 our time, did the Daily Mail run a story entitled Bullet used to kill Charlie Kirk did not match the rifle allegedly used by the suspect Tyler Robinson? >> Yes. Um I'm showing you on the screen. Can you see on the screen? >> Yes. >> 22. >> Yes. Excuse me. Exhibit B. >> Okay. Yes, I see. Exit. And is this exhibit B to the filing of the state's opposition to the motion to um the title of this? >> I assume that. Let me see the first page. >> States opposition to the motion for an order to show cause for alleged contempt of court in this case. >> Yes. And is exhibit B that Daily Mail story that you referred to just now? >> Yes. >> Was this the first story that uh reported that generated all the media that has brought us about or brought us to this stage in this case? And after that story was published by the Daily Mail, are you aware of whether other outlets publish similar stories? >> Yes. C in that same pleading. And uh for the court's record, this is docket 510, exhibit And this is a US this is a USA Today article. Is that right? >> Yes. >> The title is does the bullet match key issues emerge in emerges in Charlie Kirk murder case. Correct. >> Correct. >> And I now want to turn to exhibit D to And this is a an article by people. Is that correct? Correct. >> Also published on March 31st of 2026. >> Yes. >> And the title here, will you read that title? >> Bullet that killed Charlie Kirk doesn't match Tyler Robinson's rifle, his lawyer's claim. >> I now want to turn to exhibit E And this is a CBS news article also published March 31st, 2026. Correct. >> Yes. >> And will you read the title there? >> Charlie Charlie Kirk's accused assassin's lawyer question lawyers question link between bullet from >> And I want to turn to exhibit A to your pleading or to the pleading that we've updated the next day, April 1st. We read the headline there. How one headline way that we were relying on that was there was no grounds for us to be able to rely on that piece of evidence that that evidence didn't support our case and because it was a key piece of evidence that we did not have the evidence to be able to proceed in this case. >> And did that make you concern your client might be uh your cl Let me stop you. There may be an issue with the audio being transmitted. So, I just want to make sure that's remedied and then we can continue once we confirm it's functioning as it should. >> All right. Testing. One, two, three. Testing Rick Brighton. can continue. >> Thank you. Were these reports that we've uh gone over in the last couple of minutes, these news stories, were they accurately reporting what the the the evidence was in this case? >> No. >> And did that uh cause you concern about whether it would affect your client's right to a fair trial? >> Yes, it did. Because uh not only were those in those other articles. >> When you received those calls, you testified that you and Mr. Gray had spoken about this. You'd spoken about rule 3.6 in the court's order. When you received those calls, um you had the option as as you testified in direct examination of just saying no comment. Correct. >> Right. >> Would no Would a no comment Uh, how do you believe that that response would be received by the public if the media uh states we reached out to the Utah County Attorney's Office when we asked when they were asked for comment, >> Mr. McBride, >> the question here is whether or not Mr. Ballard responded as a reasonable attorney would under rule 3.6. Would you repeat the question? I just want to make sure I'm I'm processing it properly. >> How do you believe the press would or how do you believe the public would receive a story that had the response from Utah County Attorney's Office as no comment? >> I'm going to sustain the objection because it's asking for him to perceive what the public would perceive and that does go to speculation. I'll attempt to lay more foundation. Does the public's perception matter as it as it relates to your client's right to a fair trial? >> It can. Yes. And is that uh is the public's perception ultimately what the public's and even more particularly the potential jury pool's perception um what matters when we're talking about prejudicing your clients uh rights? >> Yes. And so isn't it true that you have to make a judgment about how the public is perceiving the media statements? >> This is crossexamination. So I'm going to overrule that objection. >> Yes. >> Did you believe a no comment response would uh would cure the prejuditial effect of the media stories? No. >> Did you believe it would actually potentially increase the prejuditial effect of these stories? >> Yes, especially given the the kinds of stories that were circulating there like uh that our case has a fundamental problem that this is a bombshell and for us to to say no comment or to not give a response would would feed the uh my concern was that that would feed this idea that the really does not have sufficient evidence to proceed. you mentioned before responding to these requests, you spoke with Mr. Gray about uh the requests and about the media that was out there at the time. Why did you speak with Mr. Gray about that? um because we recognized that this was a significant issue and that we needed to we needed to figure out how we were going to respond to that >> and was part of that to um determine whether you could ethically respond. Yes, it I think the conversation was should we and can we and should we? >> I want to refer you to the court's order, the pre-trial publicity order that's published on the screen in front of you. Do you see that? >> Yes. >> Will you read the last sentence of that order? This is the order dated September 16th, 2025. >> Says, "This order does not prohibit lawyers from making statements permitted by rule 3.6. C Utah Rule of Professional Conduct 3.6 subb sub C. >> Did based on the language of this order, did you believe that it prohibited you from making public statements? >> No. >> Did you believe it prohibited you from making public statements that were allowed by 3.6B? >> No, it it allowed me to do that. >> And same question with regard to 3.6 C. Did it prohibit you from making Did you want to respond, Mr. McBride? >> Um, no. I I I disagree with that objection, but I think the court can rule on that without response. >> Well, I'm going to overrule the objection because that's that was fodder for the direct examination. It was addressed. He was asked about that. And so, this is crossexamination and that door has been opened. >> Okay. Let's look at 3.6. Rule 3.6. Um, and that's up on the screen in front of you. I want to go through uh those particular statements or particular subsections referred to by the order 3.6B and C. There's a couple of highlights here on Is that up on the screen? >> If you look at 3.6 B. Will you read those two highlighted portions? That's B, basically B and B2. >> Yes. Says, notwithstanding paragraph A, a lawyer may state information contained in a public record. Now, before going to 3.6 C, let me ask you on on direct examination, defense council uh had a line of questioning about whether you can talk about in the public record extrajudicially to the media. Um, you begin to answer that question, but you weren't given the chance to finish your your answer. Um, under 3.6B, will you talk about your understanding of what you can talk about that is in the My understanding of that the language of the rule is that if there is something that's contained in a public court filing that the um that I can comment on that extrajudically the statement that the statement that generated this in defense council's pleading that the ATF was unable to tie the bullet to the gun. Was that in a public pleading? >> Yes. And the report that they made that statement from the ATF ballistics report is what I will call it. Was that in a public pleading? >> It was. The the defense attached that report to their uh motion to prohibit testing and the court had ordered that to be And that report uh was attached to a pleading in docket number 284. Uh is that your understanding? >> I don't know the exact docket number, but it it concerned I think it was their January 9th motion. >> Okay. And for reference, uh, the court's order, uh, making that docket number public is docket 460, March 12, 2026. sub paragraph. Okay. Actually, before I do, notwithstanding that this report was public by this time, the ATF ballistics report, did you specifically comment about the ATF ballistic report and its findings in your statements to the media? >> No. In in fact, if you look at exhibit four, um my the highlighted portion there, um I say when I'm responding to the USA Today reporter, I say the ethical rules prohibit well, it says ethical rules prohibit him from speaking publicly about forensic testing and results. And then I go on to say but I can say generally that when you have an inconclusive result these are the types of circumstances that might produce an Let's move to uh sub paragraph C 3.6 C which is up on the screen. Will you read the highlighted portion of sub paragraph C? >> Actually it's not up. Take a few seconds I can read it from the exhibit. >> Let's go ahead and do that if you don't mind. So the first uh the first full sentence of sub paragraph C >> this is from exhibit 10 says notwithstanding paragraph A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejuditial effect of recent publicity not initiated by the lawyer or the lawyer's client. Want me to continue? No, that's that's fine. So, as you read that, um, is there anything do you see any language in sub paragraph C that requires that any other public uh undue prejuditial, excuse me, substantial undue prejuditial effect of recent publicity must be generated by a defense council or opposing council? >> No. Okay. And now I want to turn to uh your particular responses. So after you met with Mr. All these responses or all these media inquiries were coming in, you meet with Mr. Gray and talk about whether you should and could respond. The answer is yes, we're going to respond. We should respond. Then you actually make the responses. Correct. >> Correct. going to turn back to uh the pleading that we referred to uh where we had attached many of the news stories. We have here uh exhibit let's see exhibit F and this is I think this also appears in defense. >> Is it the USA Today story? I'm gonna ask you to read the first the first two paragraphs here on it's page actually let me jump to page 46 here of the pleading. Will you read the first paragraph on page 46 of the pleading? Utah County Attorney's Office. >> Yeah. Utah County Attorney's Office Prosecutor Christopher Ballard said he can't comment on for forensic testing and results. But he said, quote, "When the results of a bullet fragment analysis come back as inconclusive, that means only that the fragment did not contain enough detail for the examiner to determine whether the characteristics on the fragment were consistent with having been fired by a particular firearm." End quote. And is that consistent with how you uh attempted to respond to all the media outlets that made inquiries? >> Yes. >> And is that in fact your statement? >> Yes. I I can't say that it's exactly word for word, but that uh accurately captures what I was trying to convey to the reporter. >> Want to go to exhibit G to the pleading. This is a Politact article entitled, "Does a bullet analysis clear Charlie Kirk's suspected killer what an I want to I'd ask you to read that first uh full paragraph um first full paragraph starting with when you read that please. >> When the results of a bullet fragment analysis come back as quote inconclusive unquote. That does not mean that the rifle did not fire the bullet. Christopher Ballard, a spokesman for the Utah County Attorney's Office and part of the prosecution team, wrote in an email to Politifact. >> Thank you. Again, is that accurate? >> Yes. >> Same same answer. You can't say word for word, but in essence, it's accurate. >> Right. And is this TMZ article here, this exhibit I to the pleading um an article >> Yes. >> Let's go to page uh 58. And we we talked about this this quote previously. Defense council asked you about this. Um and the statement beginning with attorney Christopher Ballad tells us that paragraph. Um is that the same is that that quote starts with generally and ends with trial. Do you know if that is um if that quote is exactly how you said it to them? Uh the the quote again comes from I'm answering two different questions um from the reporter. First the reporter asked me about these claims that the bullet didn't match and um then he asked me so do you still have a case? Basically do you have enough evidence to proceed? And so um I was first addressing the specific question about um the bullet the the claim that the bullet didn't match and then second I was responding to this idea that because of the forensic testing we couldn't proceed with this case. Thank you. I'll go to the next page 59. Um and I'd like to ask you to read the first two paragraphs here uh on page 59. As we reported, Tyler's defense team argued there's a discrepancy between the ballistic evidence and the weapon prosecutors say is connected to Robinson. In a filed motion, they wrote, quote, "The defense may very well decide to offer the testimony of the ATF firearm analyst as exculpatory evidence." >> And then, will you read that next line as well? >> Yes. says, "But Ballard says this isn't expected to derail their case against Robinson." >> Thank you. Now, I'll go to page uh 60 of the same article, the TMC article, and ask you to read these two paragraphs as well. says he told us quote can't speak about specific evidence but the evidence that we detailed in the charging document is a general summary of the evidence that shows Tyler Robinson committed this crime unquote it says Ballard added uh quote he is presumed innocent the ultimate decision will be up to the jury we believe we will be able to overcome his presumption of innocence end quote thank Now, Defense Council in their in one of their motions, they quoted The Standard, did you look at that uh that that quotation to the Hong Kong or to the standard? >> Yes, when I saw that in the defense uh pleading. >> Okay. And I've got that up on the page on the monitor in front of you. Uh it's page eight of defense council's motion for the order show cause. And this uh there's the double indent here. Um do you see that? >> Yes. >> Did you talk to the standard? >> No, they did not contact me. >> And it looks like they included some of your statements but not all of them. Is that accurate? >> It looks like they're referring to the TMZ article. Yes, they they took some of the quotes but not all of them. Okay, Um, Okay. I wanted to refer you to exhibit four in defense council's binder. >> Okay. Uh on see in that purple highlighted the second to last paragraph. Um, this was discussed a little bit earlier, >> but I wanted to make sure that this was clear. Were you Will you tell us what you were referring to in this second to last paragraph? It reads, "Valor confirmed the ATF and FBI and ATF are adding information to the initial report. Prosecutor expected will include data supporting the initial conclusions." Will you explain what that's referring to? Yeah, my my recollection is that um the defense as part of their motion to continue the preliminary hearing, as part of the justification for that motion, they had uh argued that they hadn't received all of the underlying data that supported the conclusions in the initial reports. And so the uh the reporter was asking me about whether had that data already been produced or whether it would would be forthcoming and I was confirming that it that the FBI was gathering that and would be providing that the the >> Did you uh did you personally appear on Fox and Friends? >> No, I did a a Zoom interview that they used as part of that program. >> And the the the video we watched earlier, is that the entirety of this portion of your interview that they used on that program? >> Yes. >> So, you didn't go to New York and sit down with them? >> Nope. >> Did you actually ever leave the office and go on a media speaking tour? >> No. All I did was respond as the media Thank you. I have nothing else. >> Thank you, Mr. isn't it correct that there was a point in time with respect to the pleadings in this case that the additional testing without some safeguards to um document it, record it, monitor it was a private file. Yes, the defense filed it as a private filing >> and you initially agreed, meaning you on behalf of your office, that it should be a private filing because it dealt directly with um forensic examinations. >> No, we oppose the motion to keep that filing private. Six and make sure I'm setting the correct exhibit that you initially hoped that the dispute over the testing could be resolved between the parties, right? >> Yes. >> Okay. And then we filed, meaning Mr. get some control over that FBI testing because the FBI had basically said we won't let a defense ballistic expert watch and we won't videotape. Right. >> I wasn't privy to what the the defense was saying or the excuse me the the FBI lab was saying >> but you're aware of the dispute. There was a dispute. Yes. >> The FBI wanted to do further testing on bullet fragments and we were concerned that it would have a destructive effect on the evidence and so we asked to have a ballistics expert observe the FBI testing. Correct. >> I know that you filed a motion. >> We asked your office to arrange with the an outside expert to observe. Aren't you aware of that? I know that you were requesting certain procedures, >> right? >> Was to either be present or videotaped or maybe you don't know what the procedures were. >> That sounds correct to me. I wasn't part of those negotiations that >> and when and when the FBI didn't um agree to let there be light on whatever they were going to be doing as opposed to darkness, we filed a motion for judicial intervention. Right. Yes, you filed a motion >> and we filed it privately. >> Yes. >> And we argued to this court that it should be private because it addressed forensic testing not yet received into evidence and future forensic testing not yet received into evidence and the state opposed that. >> Didn't we file that? >> Oh, council, there's an objection. >> Did it again. >> Would you like to respond? >> I can rephrase it in the form of a question. >> All right. I'll go ahead and sustain the objection and maybe rephrase. >> Are you familiar with the reasons why we thought the forensic testing documents and the dispute should be filed and litigated privately? >> I think I generally understand why you wanted that private >> and the state decided it should be public. >> We decided to oppose that motion. >> It was your position that it should be public. >> Yes. And then the court overruled or or denied the motion to keep it private. Correct. >> Yes. >> And so that then became a matter of public record which you believe you could make extrajudicial statements about. Now, your testimony is that you only intended to communicate to the media generally how bullet fragment analysis >> Yes, I was responding to those inquiries and being careful to uh stay within the confines of rule 3.6. But the media inquiries were not generally how is bullet fragment analysis conducted and what are the findings and what are the the conclusions. The questions were about the bullet fragment analysis in this case. Correct. >> Yes. Would you agree with this following statement? In the first few weeks of this case, there were many media stories emphasizing evidence of Mr. Robinson's guilt. >> Yes. So, your interpretation of rule 3.6 because of that is that I could go on Fox and Friends or send emails to media entities or have telephonic interviews where I say on multiple occasions, it's my opinion Do you wish to respond? >> Mr. Ballard has testified that he doesn't think that his public state his extrajudicial statements um violate the rule and he specifically referred to comment four which says any opinion as to the guilt or innocence of a defendant or suspect in a criminal case is not prohibited because of what he says is prejuditial pre-trial publicity. And so I'm asking the obverse, which is whether he agrees that that means that I or somebody I hire could go on a speaking tour. I'm not saying you went on a speaking tour, but and and proclaim my opinion that Mr. Robinson is innocent without violating this court's order or without violating the rules of professional responsibility. >> All right. I understand the objection and and the response. I'm going to overrule the objection as it's within the nexus of what's being addressed in this hearing and what's been brought up What I understand the rule to allow is for a lawyer to make statements that the lawyer believes are necessary to protect their client from substantial undue So if I think in good faith that my client has been that there is already proof of undue prejudice against Mr. Robinson because of all of the media stories, without seeking any judicial intervention, without seeking an ethics opinion from the state bar. I can schedule media media interviews. I can issue press releases saying it's my opinion that he's innocent. >> I think your interpretation of rule 3.6 is up to you. >> I'm asking you if you agree with that hypothetical. Repeat the hypothetical >> without any findings by anybody at this and based on the media coverage to date which we are all familiar with. Do you agree? Well, is it your opinion that the rule permits me to go on Fox and Friends or have telephone calls or send emails, issue a press release that says it's my opinion that Mr. Robinson is innocent and that if I did that, I would not be in violation of this court's order or the ethical rules that we've been discussing. >> I don't see anything in the rule that requires previous findings about prejudice. >> It's just your conclusion that there is prejudice. That's enough. >> I believe that what's required is what >> Thank you. Appreciate the court's time. >> Thank you. >> Mr. Bot may step down. Thank you. defense. Uh, it looks like you have about 20 minutes left. I I didn't include the crossexamination against your time. We'll go to the state's time, but um, how would you like to proceed next? >> I have a few questions for Mr. Gray since he was mentioned in the testimony was returned against Mr. >> Would you prefer to take a 10-minute break or do you want to keep going? I'll defer to you. >> I think a 10-minute break would be great. Thank you. >> Turning to Mr. Novak. >> Thank you, your honor. Um I'd ask the court to um invite Mr. Gray to the witness stand. >> Mr. Gray, if you wouldn't mind coming Mr. Gray, as you get situated, there's a bottle of water to your left, and after you're seated, if you wouldn't mind pulling the microphone to you so the record picks up your testimony. Mr. Novak, your witness. >> Thank you, honor. >> Mr. Gray, you're the elected um county attorney for Utah County, correct, sir? >> Yes, sir. >> All right. And so you are um responsible for essentially everything that happens in and through your office. Correct. And um is Mr. Ballard still your chief of staff? >> Does that mean he reports to you in the sense of an organizational structure? >> And he's also the public affairs officer for your office >> and he's also an attorney. public information officer, >> I'm sorry, public information officer and he's also a prosecutor, >> general >> and he's one of the prosecutors in this case. >> Mr. Ballard testified that you and he had some general conversations about media inquiries um concerning the contents uh of the of Mr. Robinson's motion to you the preliminary hearing. Is that correct that you had some general conversations? >> Yes. >> Did you ever suggest to Mr. Ballard that one approach to these inquiries would be to confer with Mr. Robinson's defense council concerning the um media's misinterpretation of what we had filed. >> No, because the rules don't require it. >> Okay. >> Did you discuss with Mr. Ballard whether the state should approach the court concerning what if anything the court would permit the state to do in light of your concerns? >> Again, no, because the rules don't require it. >> Do the rules prohibit it? >> They don't. They do not prohibit it, but neither did his order require it. The the judge's order in this case. >> Nor did the rules prohibit you from I'm sorry. nor did the rules prohibit you from reaching out to defense council and say, "Hey, you know, the media is spinning this in a certain way. Um, we need to discuss correcting the record." >> No. >> Or clarifying uh media misinterpretations. No. >> What about having a conversation with Mr. Ballard that went like this? Why a single statement that we can send out to media entities and just be done with it? >> Um, I don't know that we had that conversation. I might have thought about that, but then you're getting even wider dissemination. I was unaware of how many inquiries there were that actually might have the effect of uh beyond who was inquiring. >> But would you agree with me that one approach could have been to issue a statement which says the state stands by the allegations in the information and the significance of any evidence will be established in court proceedings. >> I I don't think that would be sufficient. it wouldn't have been sufficient to um change the media spins. Is that what you mean? >> Yes. I mean, what we're concerned about is prejudice to a prospective jury. Um and and so that could be very damaging to our ability to do that. And so we wanted to emilate that that prejudice. And so is it the the um the number of media stories and the content of the media stories which led you to conclude that the state was being prejudiced >> that there was a potential to prejudice a fair trial. Yes. >> Based on the >> based on m information >> in the media. >> Yes. >> But if it were accurate information, that would be okay with you. >> I would not be correcting anything if it was accurate information. >> Did you consult the um so we have the the binding rule professional responsibility here in Utah? Did you com consult the ABA rules on this same issue? >> No. >> Are you familiar with them? >> Yes. Are you familiar with the ABA rule that basically says extrajudicial statements by one party are only permissible where there have been extrajudicial statements by another party. >> I think it just goes to the state of mind of both of the individuals against whom the court has already returned the order to show cause. Help me understand the relevance as it relates to >> Well, we have an ABA rule called fair trial and public discourse cited at page five, pages four and five of p of six pages in our reply brief at footnote one which points out that the ABA guidelines limit extrajudicial statements to those circumstances where an opposing party has already made extrajudicial statements. Whereas here, what the state is saying is that it can basically correct the record or make any public statements it wants as long as there's something in the public record regardless of where it came from. My my concern as it relates to relevancy is whether that's binding and and whether that's even applicable. I mean there there may be like a best practices and and I'm not saying it is or it is not but as it relates to the issue before me. I I don't see how that's relevant to help me with my finding on the in regards to the ABA. >> Okay. So I think that so far Mr. Gray has said he's aware of it. Um, and I think that's fine. >> All right. Thank you. So, I'll sustain the objection. We'll move on. >> Is that correct, Mr. R? You're aware of that. >> I'm going to just got to ask you the same question I asked Mr. Ballard toward the end. Would you agree with me that in the in the first few weeks especially and continuing throughout this case, there has been substantial media coverage um commenting upon Mr. Robinson's guilt. >> Both guild and innocence. Yes. >> Including Okay. And would you agree with me that he is entitled constitutionally to a presumption of innocence? Absolutely. >> Excuse me. Until the matter is submitted to the jury for deliberation. >> Absolutely. >> do you agree with Mr. Ballard that in light of all of what we what Mr. Robinson's defense council view as prejuditial media coverage prejudicing his right to a fair trial that I can make public statements as to my opinion about his innocence without violating this court's order. >> No, you cannot make an opinion about innocence or guilt. But I don't think Would you agree that the point of Mr. Ballard being interviewed over the telephone and sending emails and then appearing visually on Fox and Friends was to address media inquiries concerning specific forensic evidence in this case? It was to amilarate the prejudice resulting from misinformation from the media >> about a specific piece of evidence in this case? >> Yes. >> And you think that by crafting that Mr. Ballard's efforts to control the conversation with the media uh by as he testifies just talking about forensic testing generally avoids the prohibitions in the rule. >> Whether I believe that avoids the general prohibitions, I think that's one I know that you did not seek any guidance from the court on this issue. Did you consider filing some sort of a motion or request asking for clarification on how the court's pre-trial publicity order governs this situation? No, I I thought the court's order was quite clear because there was another point in time where the state did seek clarification of the court's order, right? >> Yes. >> And the court clarified it. >> Yes. >> Thank you, your honor. I have no further questions. Mr. Gray, do you believe that the presumption of innocence means that uh an attorney can never respond to prejuditial media? >> No. >> Did you intend to violate the court's order in this case? >> No. >> Do you believe you violated the court's order in this case? >> No. >> Did you take actions to avoid violating the court's order in this case? >> Yes. such as you are familiar with the court's order. >> I'm familiar with it. Yes. >> You are familiar with rule 3.6. Correct. >> And uh you expected Mr. Ballard to limit the statements to the media to those necessary to address the issues prejudicing your client. >> Yes. Now, you were you've been present for the testimony about the what I'll call kind of a media frenzy about this um claim that the bullet didn't match the gun. >> Yes. >> Right. >> Um as that as that media came out, did you meet with Mr. Ballard and discuss what to do about it. >> Yes. My my recollection is a little bit different from uh Mr. Ballard's recollection of it. Um what I recall is he came to me told me that he was getting several media requests for that um and whether or not um we should or could respond to those those inquiries. Um so I spoke with about it. I know I spoke with Chad. We discussed rule 3.6, specifically subsection C that uh indicates that we can where where we believe that um there's a substantial likelihood of um material prejudice. Um and and so I ultimately told Mr. that um yes, he could respond to inquiries regarding that and and specifically our concerns. The the media had reported based on the motion to stay the preliminary hearing. Um it indicated only that it didn't indicate on the bullet the defendant's motion and didn't say anything about the actual report that It didn't indicate or exclude that it came from from Tyler Robinson's rifle and was therefore inconclusive. So based on our reading of that, we could correct that. This wasn't a matter of, you know, deciding whether it's exculpatory or inculpatory. This was a matter of stating correcting what that ATF report actually said >> and particularly to your client's right of a fair trial. Right. >> That's right. Okay. Um, you said you were aware of the rule. You're aware of the court's order. Were you aware of any cases um dealing with media and attorneys correcting misrepresentations by the media? >> I was. >> Uh, for example, do you have >> the Corey Richens case actually where um lead counsel in this case was also lead counsel in the Corey Richens case. Um, I was aware of their interview that they conducted before trial uh to correct what they perceived as misinformation. >> Okay. So, let me get that clear. Um lead counsel in this case, Kathy Nester, is that right? >> Yes. >> Um she went to the media in the Corey Richens case. Is that right? >> Yes. >> And with the purpose of correcting what she perceived to be misinformation in that case? >> Yes. From the media. >> And did she make any comment about prosecution's duty to correct misinformation in that interview? There were the entire team there at least three members of that team in that report >> of the defense team >> and between her and her other uh co-consel um they indicated that uh they had hoped I believe Miss Netor actually stated that she had hoped that the prosecutor would come forward um to correct that misinformation but because they didn't um they came forward. And were you aware of that case and that interview on March 31st of this year? >> Yes. Yes, I was. >> When did you become aware of that interview by Miss Nester? Have there been other circumstances in this case where you have declined and your office has declined to speak with the media? >> Yes. >> And if you declined in other circumstances, why did you not decline in this circumstance? >> Because we were again it was media reports where they were saying that they were misrepresenting the actual report that's in the record. and you know the that it did not match. That's not what the report said. Again, I'm not getting into whether it's exculpatory or inculpatory. What the report said was it uh that the testing did not did not identify or exclude the the bullet fragment as coming from the rifle and therefore was inconclusive. And so we got those reports and in those other circumstances we had 's concerned about um what they perceived as misinformation. And my conclusion was we're not going to go out there and talk about those things because quite frankly, you know, I didn't know whether or not how the defense would use that information. And so I I I I decided, no, we're not going to comment on that kind of stuff. >> Okay. So there have been other circumstances where you said, nope, we're not we're not going to talk to the media about X, Y, and Z. That's right. >> But in this case, you made an analysis and said, "Yes, we're going to talk to me in this case because of how important the issue is." >> Yes. >> Nothing else. >> Mr. Gray, I don't know anything about the Cory Richens case, so let me just ask you a couple questions. You had watched a some sort of a media interview that you say that um Ms. Richen's council conducted before trial. >> Yes. >> And um did you think that was appropriate under the rules? >> I think they I I think they went beyond what they could do, but um I think it is appropriate under rule 3.6 under the right circumstances like this case. So, it really depends what it is you say that puts you close to the line or over the line set by rule 3 3.6 in the court. >> Sure. I mean, you have to be careful in what you say. I mean, we do our very best to be careful. >> And were you was your office prosecuting that case? >> No. Did the um county attorney um file anything with the court concerning those public statements to your knowledge? >> Um I'm not aware of that. I I talked with her. She was the one that uh advised me of that and and that's why I became aware of it. But I I don't know whether or not they decided to or not. There are many reasons why you may or may not file something. >> I know that she wasn't with it. >> When you say she, you're referring to the county attorney >> Olsson from Summit County. >> I see. And you don't know if if uh Summit County sought any judicial review of those extrajudicial statements? >> Did Thank you. I don't have any further questions. >> Thank you. Anything further for this witness, >> Mr. Thank you. All right, Mr. Novak. >> All right. We can proceed to I'll I'll defer to the parties. Novak, you have about eight minutes for argument. The state has a little bit more than that. So as the parties wish >> to do it now wants to continue. >> Yes. My intent is uh we'll we'll do that then that will conclude this particular um as it relates to the OC and then we'll turn to the motion in lemon as it relates to hearsay uh giving the parties time to argue that as the court has reviewed in detail the motions uh which were detailed court appreciates that that so we'll have a brief oral argument on that and then we'll go to the last issue that Mr. Novak brought up and and address that as well. All right turning be careful to be clear at least from our perspective that there are two issues here. whether The evidence supports a finding um a violation of the court order by Mr. Ballard andor Mr. Gray. And then the question if the court does make that Um, so I'm going to really deal with the first and the second part second, unless the court wants to bifrocate it and issue its findings on whether or not there's been a violation in which case if the court finds that there has been a violation of the court order, then we can address the remedies. >> We can address that today. Thank you. in regards to your argument and what you are advocating for. >> All right. So, the court would like to hear all of it at once. That's what I mean. Okay. So, first of all, um the court's order concluding that there was a preliminary finding that that that we had made a preliminary showing identifies three elements to um the contempt and Mr. Ballard essentially admitted to the first two and there was no reason why he was unable to comply with them. So the third element is whether the order was violated. Now, I acknowledge that the court's order uses the word intentional, but I would ask the court to look again concerning whether intentionality is an element of the offense. And the reason why that's important is as I cited in the brief, so I'm not going to cite all those cases again, say that where the order is in the nature of the court doesn't need to make a finding of intent. Every order is different. This is an order in joining conduct. And so if somebody violates knows of and has the ability to comply with an order and joining conduct and the order is violated, However, what I will argue to the court is whether or not the court is going to um add that element of intentionality. I think the evidence is clear that the violation was intentional or it was so reckless and I will use the legal phrase extreme recklessness that there's And I don't say this lightly, and this is one of those situations where lawyers and judicial officers sometimes cringe, the cover up is worse than the original conduct. I know we've all heard that before, and we all know what that means. But I find no credibility in Mr. Ballard's sworn testimony that he only intended to communicate with the media generally He's responding to misconceptions in the media about what the defense said in its filing. He's talking about the bullet fragment analysis in this case. And I Mr. Ballard's explanation that he really never said anything about the bullet fragment analysis in this case, especially I mean the most clear example frankly is his statement in um exhibit 7 which is his statement on Fox and Friends because he talks about this bullet this bullet. the bullet. The bullet. He's not talking in general terms. He's not talking in generic terms. He's not a ballistics expert. Although in some of these exhibits you see that the journalists interviewed ballistics experts, Mr. Ballard is trying to influence public perception about And I think to say, oh, I'm not talking about this case. I'm only talking about ballistics generally is belied by the context in which the statements were made, the motive that Mr. Ballard and Mr. Gray admit they had in engaging in extrajudicial statements, and the Mr. Ballard also acknowledges that he made statements about future examinations and his expectations about what future FBI and ATF reports would say in this case. So even if Mr. Ballard has this what he thinks is a safe harbor. Oh, I was just talking about bullet fragment analysis generally. He is then saying, "Oh, and we'll have some more reports in this case soon that will clarify this." So, he's actually talking about what he believes forensic experts will do and say in the future, which I think not only violates the rule in and of itself, but shows the overall The reason why we asked Mr. Ballard and Mr. Gray if you can turn this around and say since there's been all this negative media coverage, can I go on a public relations tour and state in my opinion Mr. Robinson is innocent extrajudicially beyond the fact that he has a constitutional right to the presumption of innocence which the prosecution has an obligation to embrace and uphold is because if I can do that in response to media coverage then this court's order and the rule are completely swallowed In other words, in a case where there is media coverage, which is not the result of interviews by the defense, I can go do those things. Then this court's order has very, very little meaning. And rule.3 3.6 has very little meaning. And that that just can't be the way it works. So at a minimum their conduct was extremely reckless and that in the law is the same as intent. But again I don't believe that that's what this court has to make a finding in order to um confirm the court's initial preliminary finding of a violation of this court's rules. It's interesting, your honor, that the state's attorneys have already decided that the recent media coverage about the bullet fragment analysis has prejudiced their case because they've been saying in this courtroom and in pleadings that we can't prove that any of the media coverage in this case has prejudiced Mr. Robinson. They've been saying, "Pick a better jury. Have a better questionnaire. Maybe there's a venue issue, more pmpary challenges, individualized or dire." And this court has said the same thing. But when it suits them, they say they've already determined that their case is prejudiced. And so they need to correct the so that they can have a right to a fair trial. And it's it's offensive to me, but it's deeply ironic that when it suits the state, we can't prove prejudice. and when it suits the state, they've already concluded that there's prejudice. Without even taking a moment to say to this court, we're very concerned about this. We weren't concerned before about all the negative media coverage about Mr. Robinson and his life, but now we're concerned about the media coverage concerning this piece. And so, judge, what are we going to do about this? I am confident that if the court received an inquiry from council that said there's an urgent matter here. We'd really like to do to have a conversation with the court about what is acceptable under this court's order. This court would have convened a hearing. This court convened, as I recall, a conference call on like six hours notice back in September when the court wanted to manage this case quickly because things were happening. and the courts staff got everybody on the phone and the court made some decisions and then those decisions were docketed. There is nothing that stopped the state from asking this court to either clarify its order or um approve some press release even if it was over the defense's objection that would be consistent with rule 6 So now in my remaining time, I'm going to go to the remedies. I think that the number one remedy in this case, your honor, is for this court to preclude the state from seeking the The court said at an earlier time that if the court found there were violations of its orders that it could order somebody to do continuing education. It could impose fines. It could do all kinds of things under the civil remedies. That is true. But what we are talking about is the state without any guidance from this court going out and trying to influence the public perception of this case. So that when people come into this courtroom and they may be jurors in this case, they have been exposed to the state's extrajudicial statements about what the evidence will or will not show before the first witnesses ever sworn to testify in the trial, before any exhibits are ever received into evidence. And as Mr. Ballard said the media spin will never change. The media will do whatever the media wants to do. And and I I'm going to return to that as well. What was going on here was an attempt to influence the jury pool because that's the only thing that cures the prejudice is correcting what the state is concerned are the perceptions of potential jurors. And so that is the remedy that is commensurate with the extreme recklessness and the motives of the state. We ask this court to compel some discovery, but Mr. Ballard was quite frank. We need to change public perception of what the evidence is or There are other lesser remedies, but we've already been through proceedings concerning how to remedy the pre-trial publicity, publication of these proceedings. And the court has already said in other contexts, we're going to have a more thorough jury questionnaire. We're going to have more vorire. We're going to have individualized forire. We're going to have venue issues. I'm not saying that the court has promised to change a venue. That's not what I'm saying. But the court this morning said there may be an appropriate venue issue here. So there's no additional consequence for the state's misconduct here. We're already at the point where we've got to pick a a more um we have to much much more carefully pick a jury because of what has happened in this case over the last nine months. And now the state has We can't wait until we start picking the jury to find out So, we think that's the first remedy. The others are the remedies uh that the court has already said are probably necessary in this case. I don't want to be flippant, but I don't really care whether Mr. Boward attends a continuing education program or not. All I care about is my client's and referring Mr. Ballard or Mr. Gray to the state bar as Mr. McBride referenced. I'm not saying he suggested that that the argument on the motion doesn't protect Mr. Robinson's constitutional rights. Mr. Levit's sanctions weren't affirmed by the Supreme Court until years after that case ended. That doesn't protect I just want to say one other thing here. One of the reasons why extrajudicial statements are strictly controlled is because lawyers can't control the media. We can send them an email. We can make statements on the phone. We can sit for a 15minute interview. Journalists will cut and paste and shape articles to fit their purposes. And that's why it's extremely reckless to do what Mr. Ballard and Mr. Gray did. If they had put out a press release, especially one approved by this court that said, "The state stands by the allegations in the information. Mr. Robinson has the right to the presumption of innocence until the trial has concluded. We wouldn't have this problem at all because the media, all they could do is cut and paste pieces of a press release that would be totally in conformity with this court's order and rules 3.6 and 3.8. And so they let Fox and TMZ and other media entities cut and paste whatever was um important to them. But that doesn't relieve them of the responsibility. And it also does not undermine what I think this court unfortunately needs to find to be true, which is that Mr. Ballard's attempt to say he wasn't talking about the ballistic testing in this case is is simply lacking in credibility. Thank you. >> And council, I do have a question uh for you. So, hypothetically, if the court finds a violation, do the interests of Yes. And I think in light of the remedies that this court has already said are going to be necessary in this case, the sanction that I've suggested is is proportionate and it's in the interest >> Thank you, Mr. Novak. >> Thank you. Governor, I'll start with the with Defense Council's assertion about credibility of Mr. Ballard. Um I I I view the evidence completely different. It seems to me that Mr. Ballard was extremely credible. his um statements that were reported through several media entities all said the same thing which were I'm not going to talk about specifics of this case but in general when you have an inconclusive report it means this did he say the bullet yeah because he was referring to the bullet referenced in the previous sentence and that was consistent throughout all of the media that we looked at and the Fox News story when you see that it you can tell it cut off the last word when it begins his his next sentence that's how quickly it starts And so his and that's consistent his his testimony that he was referring to a general uh inconclusive result is consistent throughout all media entities here. Um but the reality is doesn't matter anyway because rule 3.6b 6B says parties attorneys can reference matters of in the public record and this report was in fact in the public record by this time because defense council attached to one of their pleadings. The court ordered that it would be public and and it was public. Um what Mr. Ballard's efforts uh at being general rather than specific show is a measured and thoughtful effort to correct the unfair prejudice that faced his client, not an effort to prejudice defense or the defendant. That shows a measured and thoughtful deliberate approach, not an intent to violate the court's order. Um, the statement about what future FBI reports would say, that's misleading. That is not what the testimony was. Mr. Ballard testified. I talked about what the future FBI and ATF reports may say and that was in reference to the motion to continue the preliminary hearing that talked about the lack of discovery of underlying data supporting the scientific reports. That's what the testimony was. Despite what Mr. Novak may want to say here, we're we're limited what the testimony is here. And that's what the testimony was. um the hypothetical where defense says, "Well, taking taking um the state's position at face value, then defense council could get up and say, I believe my client's innocent." That's comparing two completely different things. Rule 3.6, the comment to rule 3.6 says attorneys should not be saying they believe someone is guilty or innocent. Right? That's not what Mr. Balor said. He didn't come up and say, "I believe defendant is gu is guilty." That's not what he said. Um, and with regard to uh the prejudice of the case, right, um, Mr. Novak talked about, well, it's it's it's not it's not consistent that when it's the defendant being prejudiced, then uh, you know, we can handle all this through varied veneer and all those things, but when it's the state being prejudiced, you can't. You have to actually correct the record. Well, there's a difference here. Well, the first question is, are they being prejudiced unduly under 3.6? That's the language. Undue prejudice. Well, is it undue prejudice? When when when the evidence and we all know this, everyone in this courtroom knows that that media was misrepresenting the evidence here. That's what makes the prejudice undue, right? If there are false, if there's false a false narrative that's being pushed, that's undue prejudice under 3.6, that's when you step in and correct it. Now, if and that's that's why 3 point that's why the comment to 3.5 or 3.6 comment five to rule 3.6 is helpful is because there are certain things that can create undue prejudice such as an an attorney's opinion on guilt. So if if Mr. Gray had stood up at the initial press conference in this case and said, "Trust me, I am your elected county attorney. I believe the defendant is guilty." To correct that undue prejudice, yes, defense council could have got up and said, "Members of the public, it doesn't matter what the county attorney said, what or what the county attorney believes. What matters is the presumption of innocence and we've got to wait for a jury and all of those things, right? But that would be undue prejudice, right? Not the fact that he's been charged with the crime, not that there's a an affidavit of probable cause and the contents of that. Not that there's pleadings in the case and the contents of those of those pleadings. And that brings me to the point of this is why it's so important that that attorneys um satisfy the duty of cander to the court is because when an attorney files something with the court, we all know an attorney has a duty to this court to have cander and to be honest in what they represent. Why? Because then when the media reports on it, there's some assurance that there's some validity to those to those statements. That's why some of this what we're dealing with is so upsetting is because it generates from pleading the claims um that makes that frankly was misleading I think and obviously the media all thought it meant what they said it meant. All right with that um let me turn to I think what really is the crux of the You got to start with the standard. The standard of proof is clear and convincing evidence. In order to find Mr. Ballard or Mr. Gray in contempt, the court has to find by clear and convincing evidence that Jeff Gray andor Chris Ballard intentionally violated the court order. A defense council has taken issue with that intentionally language. Um, but the the issue they take generally comes from a case and a line of cases that predates the von Hackey v. Thomas case, which is a Utah Supreme Court 1988 case, which uh uh promulgates the intentional standard. Um that same standard was reiterated in Sumar v. Sumner, a 2012 Utah appellet court case. These are cited in the state's brief, I should mention, as well as the Coler v. Allen 2020 Utah appellet court case. That's the standard. Proof by clear and convincing evidence that these attorneys In this circumstance, uh the defense can't prove and I don't think the court can find the actis rees much less the men's rhea which is much more difficult to prove. When you look at the actis rees, these statements did not violate the order which explicitly refers to rule 3.6. That last line of the order says right this state this order does not preclude the attorneys from speaking to the media. C rule 3.6B right 3.6B allows attorneys to talk about material in the public record and 3.6 C which allows attorney to correct um extra judicial statements that prejudice It did not violate the rule because um the ref the reference to the test uh the report from the ATF was a matter of public record docket 284 which is specifically allowed by the rule. But Mr. Ballard in demonstrating his measured response took an additional step to avoid potentially prejudicing prejudicing the defendants's rights. Rather than saying, I'm going to read to you the report media that talks about this case, the bullet in this case, and the results. I'm going to read to you the report that says not only the part that the defense included in their pleading that they could not tie the bullet that they could not identify that bullet as having been fired from that gun, but they could not exclude it. And not only that, but they could tell this is a 30 caliber class round. Mr. Ballard did not do that. He could have under under uh 3.6B, but he didn't. Why didn't he? because he was taking a measured and deliberate approach to avoid violating this court's order, to avoid violating his ethical duties. Under 3.6 C, he was correcting an unduly unduly prejuditial media to protect his client's right. Why is it unduly prejuditial? Because it was false. Right? This narrative that the bullet didn't match was false. Everybody in this courtroom knows that that narrative was false and he was correcting that narrative. It's hard for me to find to think of a circumstance where 3.6C would be more directly at issue. We have here perhaps the most high-profile murder case in the world. C certainly one of the most high-profile murder cases in Utah's history that has generated extraordinary um attention from the media and from the public. We have here, not only that, we have here reports that are claiming the that are misrepresenting the evidence and claiming that it completely exonerates the defendant. And those reports are false. Right? Hard to see a circumstance where 3.6 C would not be So your honor, I don't think the court can even find the actis ray is here. The actis rehea here. I don't think the court can find that uh the statements that were made by Mr. Ballard violated 3.6B or 3.6 C and therefore violated the court's order, much less that Mr. Ballard and Mr. Gray intended to violate the court's order. When it comes to the the men's rate of the intent, you can see by the statements by the by the testimony that both Mr. Ballard and Mr. Gray were deliberate. They talked about rule 3.6. They were aware of 3.6, 3.6 C. They're aware of um other cases where corrections of the record had had been brought up, including by lead defense council here, where uh she corrected uh the public statements and said the prosecutor should too. Um and they made measured and they made measured statements as as Mr. Ballard made measured statements to the media that were deliberate and did not go beyond what the rule allowed. He did not say, "I believe he's guilty." He did not say, like Mr. Levit did, I believe um my witness, we believe the witness. He did not refer to evidence that would not be admissible. referred to evidence that was in the public record. Um, finally, your honor, I think, uh, in conclusion, the defense has not shown, and the court cannot find proof by clear and convincing evidence that Jeff Gray or Chris Ballard intentionally violated the court order violated the court order at all. Um, as I mentioned before, we have taken um, we've taken this matter seriously. Um, at the very You can see that the state the day after the day the defendant was arrested was sending out letters to the media or excuse me to police chiefs and the law enforcement agencies saying be aware of these rules. If you talk to the media, you have to abide by these rules. We suggest you don't talk to the media. If you have questions, talk to us. You can see that we've taken this very seriously from the outset. We've taken it very seriously up until this date. Um, we have a duty uh to justice and to our client to make sure that our client gets a fair trial and that the truth is out there. Um, and this this of course this issue has brought the the issue front and center to us and we've discussed it. We've discussed um how we can be absolutely certain that we do not cross the the line. We don't want to cross the line. We want to stay as far away from that as possible. We believe we want the state, we want Mr. Kirk, we want his family, we want everyone, including the defendant, to receive a fair trial. We don't want to do this again. We want to do this right the first time. We believe we've done right this far. And we will uh exercise extreme care to continue to do right here, even if that means revising some of our uh our protocols and interacting with the media. >> Thank you, Mr. McBride. I do have one question for you. With reference to the final page of exhibit three and in the context of correcting the record and evaluating undue prejudice, how does the state contend that Mr. Ballard's statement, and I'm quoting, he is presumed innocent. The ultimate decision will be up to the jury. We believe we will be able to overcome his presumption of innocence. >> Thank you. Um, yes. First off, um we don't know the exact order in which this statement was uh received. Um but I think there's two things that are important here. One is the reference to he has presumed innocence, right? That shows that Mr. Ballard was intentional about about um making that clear, right? The jury will find guilt. That last statement, we believe he uh he we will be able to overcome the presumption of innocence. This is a reaffirmation of the state's certification under rule 11 that we have the evidence to proceed with the case in good faith. We believe we have the evidence to proceed with the case. Every attorney that files a pleading in this courtroom certifies that they believe the matters contained in that pleading are supported by evidence. And that's what this is. It's a reertification. We have the we believe we have the evidence to prove this case. All of this, all of these media reports do not undermine that good faith certification that we made when we filed the case. And I think this is where it's it's helpful to look at. We cited a case Kansas um state v. Wright 583 Pacific 174 where the prosecutor in that case in jury selection. So this is a much more direct I mean this is right to the jury pool who's going to try the case right in that case the prosecutor says to them thank you for asking that question I I was I meant to cover this in state v. Wright 583 Pacific 3rd 174 on 194. This is a Kansas Supreme Court case from 2026. The uh county attorney speaking to the veneer the jury the jury panel for jury selection says this. So as the county attorney my job is to prosecute cases that are brought brought to my office that I feel we can prove Then he continued, "That is the burden that the state willingly accepts when it filed charges and brings cases forward." So the state understands this burden and intends to prove that through the course of evidence this week. And the Supreme Court um ruled as follows. Rather than an improper personal opinion on Wright's guilt, the prosecutor's comment here simply explained the prosecutor's role in the proceedings and reiterated the state's burden of proving guilt beyond a reasonable doubt. A prosecutor in a criminal case cannot ethically prosecute a charge that the prosecutor knows is unsupported by the evidence. That's that's what was happening here, your honor, is saying Mr. Ballard testified. This answer was in response to the question, do you still have a case? Right? Does this does your case fall apart here with the evidence? And his opinion was not, I believe he's guilty. It was an opinion directly tied to the evidence. We believe we have the evidence to prove this case and it's nothing more than a certification that all attorneys make when they make filings and that the county attorney made when filing the information in this case. It's much less prejuditial than anything uh the attorney said in the state be right because it's directed to the media rather than the jury veneer. And it's not prejuditial anyway. I don't think I don't think anyone would be surprised to learn that the prosecutors in this case believe they're going to be able to prove it. In fact, I think if the if the public thought we were prosecuting cases we did not believe we could prove um that would be frankly shocking um because uh wouldn't make any sense. I think everybody knows that we believe we can prove this case and we intend to do so through the evidence not based on personal opinions um that are endowed on us through our authority as prosecutors which seems to be what Levit claimed in that case. >> 90 seconds. >> I I will give you 90 seconds, Mr. >> Thank you, your honor. I think we all want the court to be um clear on the law with respect to the third element in intentionality. And Mr. McBride is not correct when he says that all of the cases that we cite for the proposition that violation of an order in joining conduct requires proof of intent predate von Hake. That is not true. And so what I want to just remind the court is that in 2019 the United States Supreme Court said, and this is at the bottom of page 10 of our reply, the United States Supreme Court said, quote, "We have explained before that a party's subjective belief that she was complying with an order ordinarily will not insulate her from civil contempt if that belief was object objectively unreasonable. That's Tagert v. La Lorenzan, a 2019 Supreme Court case. And in the same year that von Hake was published, the United States District Court for the District of Utah said that civil contempt for violation of a court order need not be willful. And Now, I'm going to quote from the District of Utah opinion. In order for a party to be cited for civil contempt, a court must find that the party violated a specific and definite court order and that the party had knowledge of the order sufficient to put him on notice of the prescribed conduct. Nevertheless, the disobedience in a civil contempt need not be willful because the purpose of civil contempt sanctions is remedial. That's in Skinner, a 1988 published decision in um bankruptcy reports district of Utah. >> Thank you, Mr. Ne. >> And I have nothing further unless the court wanted to inquire of me concerning anything Mr. um McBride said. >> No. Thank you. >> Thank you. >> All right. We're switching gears and going to the motion and lemonade uh to exclude hearsay statements as as mentioned in the um briefing. Again, I will note that uh the court has examined those briefings in detail and so uh the court wishes for limited argument as the briefing uh provides a lot of guidance from both sides on on the the party's positions. And so if if the parties would like to take up to 15 minutes to argue that uh you certainly can. And then we'll go to the final issue that Mr. back brought up in the beginning and uh as this is defense's motion we'll >> Good morning. >> Well, afternoon I guess. Judge, as the court knows, and as you've just noted, there's been extensive briefing here. I'm not going to get into all the technical arguments, and there are many here. Uh, but the briefing outlines six different uh basis for the court to find here that the uh use of hearsay evidence in this particular preliminary hearing in this death penalty case is unconstitutional under the federal constitution. state constitution has separate rules as we outline in the in the brief and I know the court's familiar with those but the constitutional issues raised under the federal constitution are unique for the most part they have not been addressed by any Utah court uh with one exception and that's the confrontation clause objection that is addressed in Timberman uh but as to our other arguments procedural due process equal protection. Uh the sixth amendment right to council. Those issues have not been addressed. And there's of course one issue, separation of powers. That's a state law issue. That has also not been addressed by any Utah court. But I wanted to take just a few minutes for the court if I could to outline why this motion is important in this particular case. I don't think that's really outlined in the motion, but I think it's important for the court to consider. And I know the court has not reviewed the exhibits that have been submitted to the defense from the prosecution in terms of what they're going to present at the preliminary hearing, but I'll represent to the court that for the most part the state, and I'm sure they'll correct me if I'm if I'm wrong on this, intends to rely almost exclusively on hearsay evidence at this preliminary hearing to make out the elements of the charges and allegations and especially the death penalty eligible allegations against uh Mr. Robinson. And probably most uh problematic from our standpoint is that the the central witness who's going to be presented against Mr. Robinson is a witness who the prosecution and the federal government have uh given promises of immunity to and in lie of putting that witness on the stand and subjecting him to cross-examination. They met with this witness outside the presence of the defense, asked a series of leading questions that the witness was asked to agree to, uh, videotaped it, and the state proposes to introduce that into evidence. In addition, a prominent feature of the evidence at the prelim will be a number of forensic reports by federal and possibly some state u law enforcement forensic examination examiners. And those reports for the most part are simply conclusory opinions about certain findings that were made. There is no indication on the face of the report as to the methodology that was used or the reliability of those methods. The reports are simply going to present the court with conclusions and then the state is going to rely on uh section 1102 of the rules of evidence to urge this court that those statements by law are reliable evidence. And that's the gist of the problem here because uh 1102 in combination with article 1 section 12 essentially removes what was supposed to be this court's function at the preliminary hearing which is to assess the reliability and the credibility of the evidence. And the intent of article one section 12 the court goes back into the leg legislative history was specifically to remove the court's discretion to decide whether certain evidence was reliable and that's where the separation of power issue comes into play. Now, that we say violates the federal constitution in a number of respects and also the state uh separation of powers provision. But I I I wanted to point out to the court that the state's position on this issue is really contrary to the position they've taken on almost every other procedural issue that has been raised in this case. Uh and the prime example is the one just presented to the court in connection with the OSC. One of the things that Mr. McBride said was we have a duty to make sure the truth gets out there. And similarly, the defense has a duty to make sure the defense the truth gets out there. And how they do that in this system traditionally and historically has been through the use of cross-examination, confronting adverse witnesses. Another example of the inconsistency that's being urged upon the court uh in the state's opposition to this motion. The court will recall the state's position on our motion to exclude cameras from the courtroom. And Mr. Grunander began his argument to the court with this uh statement. Your honor, mischief lurks in the dark or in secret or that's at least how many people view the workings of government, even the courts. And while this is primarily the media's fight here, we do not represent the media. We strongly support open and transparent proceedings in this case so that the public will trust the process here. There are conspiracy theories that abound. There are questions being raised. And the best antidote for falsehood is the truth, is accuracy, is the actual real proceedings. And that's at page 214 of the hearing on April 14th. And similarly here, your honor, the uh defense's right to crossexamine and confront adverse witnesses, immunized witnesses in this case. We're going to provide the bulk of the evidence against Mr. uh Robinson. The purpose of our doing so is to get at the truth, to lead to transparency. And one of the articles that the um state has cited to the court as indicative of a a an analysis that's relevant to this issue is an article by a former district attorney who um this is the Bowden article that the state sites and one of the things that Mr. Bowden, former prosecutor, says in his article that the state cites is he he's addressing the issue why it's important to have adversary proceedings at pre-trial proceedings such as preliminary hearings. And he says, this is at page 1148 of his article, a system without adjudication lacks transparency. The public normally has no way of learning why prosecutors make the offers they do or why certain cases reach certain outcomes. The opicity prevents the public from understanding how criminal courts function. It frustrates journalists and scholars who wish to study criminal courts. And it distorts democratic feedback as voters are left with little idea of how these institutions work. and the court in its rulings on public access and even this morning uh you have also emphasized transparency as a goal of the criminal justice system. So this motion asked the court um how can we further transparency by relying exclusively or almost exclusively in this case on hearsay evidence that implicates Mr. Robinson in a death penalty case. And we say to the court that if the court looks carefully at the cases we've cited cited uh on the federal constitutionality of this practice, the court should uh determine that it's simply unfair to proceed on the basis of hearsay a case where Mr. Robinson's life is at stake. The federal constitution requires that people who are facing parole revocations have the right to confront and cross-examine witnesses. The US Supreme Court has determined that people facing probation violations have a right to confront and cross-examine witnesses. The state supreme court has determined that people at suppression hearings have the right to confront and cross-examine witnesses. The state supreme court has determined that people who face sentencing have a right to confront and cross-examine witnesses. And we say that due process, equal protection, and the other provisions we cite all point in the same direction, which is that the court should not should not allow the use of hearsay to make the determination in this case that Mr. Robinson should or should not be bound over for trial. and I'll be glad to answer any questions the court may have. I know there u the briefing is fairly extensive. So if the court does have questions, I'm prepared to address them. >> I do I I have one question. I'll be asking both sides this question. >> Sure. >> Uh and the court previously indicated and you noted it that it wasn't reviewing the exhibits ahead of the preliminary hearing in order to go in with an open mind and and weigh it accordingly. Is it your request that the court review the proposed states exhibits that relate to this motion prior to the preliminary hearing? >> Your honor, I think it would be helpful to the court to do that because I think the court would then have a better context of just how central uh hearsay is going to play in this case. A and also uh especially in regard to the crucial witness, the immunized witness, how the state structured that hearsay. And I think if the court did that, it would it would clearly see the importance of of uh cross-examination and confrontation. So I would have no objection to and I would urge the court to do that. >> And do you have those exhibits those exhibit numbers? And and if you need time to confer with your team as I go to the other side, I I don't expect you to just come off with those numbers off the top of your head. >> Sure. I know the court uh the state provided those to the court. I think there was some email traffic about how the court then gave them back to the clerk, but I think they're still in the clerk's possession. The state will correct me if I'm wrong on that, but they're the state's exhibits. So, >> no, no, I you're you're right. I I know, but I'm wondering if there's specific ones that you want to identify that relate directly to your motion that you wish the court to review. >> Yeah, sure. Your honor, if I could have a minute, I'll identify what those exhibit numbers are. >> All right. So, I'll turn to the state and again, I'm not trying to put you on the spot there. >> Thank you, your honor. Um, the Utah Supreme Court has already rejected the defendant's argument in State versus Timberman. This court can't overrule the Supreme Court. And I think it's fundamental or it's important to think about the fundamental reason why this the court held in Timberman that the sixth amendment right to confrontation does not apply at preliminary hearings. And it's because of the very very low burden and low standard that the state has to meet at a preliminary hearing. All we have to show is probable cause. This the magistrate at a preliminary hearing isn't making any factual findings. Um the the issue is just whether there is a reasonable a reasonable probability of that that an offense was committed and that the defendant committed it. And in making that decision, as your honor well knows, uh you have to draw all of the inferences in favor of the state. You can't weigh conflicting evidence. um you can make only very very limited credibility determinations. So even if the defense could impeach a witness to some degree through cross-examination like the fact that this witness has been granted immunity, it doesn't matter at the preliminary hearing because the magistrate's duty bound to ignore those blemishes and draw everything uh draw all reasonable inferences in favor of the state. So even if the state's only witness to a robbery was a convicted forger who wasn't wearing his glasses when he saw the robbery and who had a grudge against the defendant, even if the defense could bring all of that out on cross-examination, it's irrelevant to the probable cause finding because it's such a low burden. Um, that's an extreme example. I don't think the state would ever bring charges in a case like that. But we do have an example that is similar in scope to that. And um that's straight state versus drobecky. That uh I think is how you pronounce the the name. D R O S B ke. That's 2010 Utah app 275. In that case, you had a child a victim of a child victim of sexual abuse who uh reported the sexual abuse to law enforcement, reported it during a CJC interview, but then took the stand at the preliminary hearing and recanted those allegations. uh that there was still sufficient evidence in that under that situation to bind the defendant over even though the witness recanted those allegations because there was a reasonable explanation as to why the witness might have been telling the truth um when she reported to the police and during the CJC interview and why she might have recanted at the at the um at the preliminary hearing. So that's the standard that the court is applying and so defense talks about we have to have reliable evidence and the state absolutely agrees that we have to have reliable evidence but reliability the degree of reliability depends upon the circumstances of the proceeding. So is hearsay sufficiently reliable to for a conviction beyond a reasonable doubt at trial? Certainly not. But is hearsay reliable enough to be able to make this low probable cause finding? Yes, it is. And um that's why Timberman held that the Sixth Amendment right to confrontation does not apply at um preliminary hearings. And that's why nearly every other state court that has examined this issue has found that the Sixth Amendment right to confrontation does not apply. Timberman collected those cases as of 2009. You've also got the Ninth Circuit in Peterson versus California. And we've included all of these uh cases in our brief. Um in fact, if this court granted the defendant's motion, it would be going where no other court has gone before. This court would be the first court to find that the Sixth Amendment right to confrontation Because Timberman is clear that the Sixth Amendment right to confrontation doesn't apply at a preliminary hearing. Defendants trying to rely on other federal constitutional provisions that defendants attempt to do that violates the rules of uh constitutional construction legal interpretation because it would create contradictory constitutional provisions. Um what defendant is trying to say is even though the sixth amendment right to confrontation which we know would provide the the right to cross-examination and therefore prevent the state from relying on hearsay even though that right doesn't apply at the preliminary hearing. There is some other constitutional right that could somehow indirectly provide that right. But then we would have two conflicting constitutional provisions and that's not how we read the constitution. That's not how we read statutes. We read them to be in harmony with each different provisions to be in harmony with each other and to not render a different provision superfluous. If you could provide the right to confrontation through uh the sixth amendment right to counsel or 14th amendment right to due process, then what what work is the sixth amendment right to confrontation doing? Um it just doesn't make sense to do that. So that's exactly why the Ninth Circuit in Peterson versus California said it's illogical to conclude that the substitute for a grand jury indictment, which is the state preliminary hearing procedure, must contain greater protections than the grand jury provides for itself um in the federal system. So if the federal system the the equivalent to the state preliminary hearing is a grand jury proceeding. The grand jury proceeding allows um the federal system to determine probable cause to require a defendant to stand trial. Um the defendant doesn't have a right to be present in those proceedings. Doesn't have a right to representation. Doesn't have a right to cross-examination or even to present exculpatory evidence. If that type of a procedure is constitutional, then Utah prohib Utah's preliminary hearing procedure is certainly constitutional. Um I could go through each of the different constitutional provisions that defendant has uh relied on. I'll just I'll do that very briefly just summarize the reasons why we don't believe those apply. the sixth amendment, even assuming the defendant could rely on some other provision, which we don't believe he can. But the sixth amendment right to counsel, it doesn't create additional rights. What it does is it evaluates council's performance under the circumstances as they existed at the time. Um, now defendant brought up the fact that uh there is a right to to confront witnesses at suppression hearings and at sentencing hearings and at parole revocation hearings. That's a procedural right to cross-examination. It's not a sixth amendment right to confrontation. We know from um Crawford versus Washington, the Sixth Amendment right means that the state cannot rely on hearsay evidence that the defendant has not had a prior opportunity to cross-examine. that. And so it's the sixth amendment right that prevents the state from relying on hearsay. It that's completely different from saying uh the defendant has the right to be able to cross-examine any witnesses that the state calls. And in fact, at a preliminary hearing, the defendant will have the right to cross-examine. I think we're planning on calling four witnesses. Defendant will have a right to cross-examine those witnesses. But a procedural right to cross-examination doesn't mean that the sixth amendment right as interpreted in Crawford applies and precludes the reliance on hearsay. Um with respect to due process and and the 14th amendment again you have to look at what process is due under the circumstances. And here again we've got a very low standard. Um, and the state's process here gives the defendant far more protections than the federal grand jury proceeding does. Both of them determine probable cause as to whether the defendant can go to trial. Um, and so due process doesn't supply some sort of right to confrontation that the sixth amendment right doesn't app doesn't supply. Um the equal protection argument is interesting because um defendant has not shown that he's similarly situated. Well, let me back up. What defendant relies on is uh Moresy versus Brewer, which is the case that says uh defendants have a right to confront and cross-examine witnesses at a parole revocation hearing. But that's a defendant who is has been um convicted at trial and who is facing reimposition of a criminal sentence that to serve out the remainder of his sentence. Defendant here isn't similarly similarly situated to u that type of a defendant. So he can't make a an equal protection challenge based on that situation. And again, Moresy versus Brewer does not say that the Sixth Amendment right to confrontation applies. It merely says as a matter of due process, if the state is calling the witness, the defendant has the right to cross-examine them at the proceeding just like defendant does at this preliminary hearing. Um, as far as the eth amendment goes, the state doesn't have any qualms with the idea that the eth amendment when we get if we get to the point of um whether or not the death penalty is an appropriate penalty here, certainly the eth amendment heightened protections apply there. But we're not at that point and defendant hasn't cited any case that would extend those eth amendment protections beyond the decision to impose the death penalty or they do cite Beck versus Alabama which talks about instructing the jury at the guild phase. We're not at that point. You can't use the ETH amendment and say, "Well, because this is a death case, there's super due process or super there's there's additional rules that apply above and beyond the procedural and evidentiary rules that apply at every other stage of this proceeding. Um, and then finally, as to separation of powers, I don't see anywhere in the federal constitution that dictates any particular separation of powers." uh principles to the states. And so it's completely up to the state of Utah to determine how it wants to divide the powers between its various branches of government. And the constitutional provision that's at issue here clearly says that the uh that reliable hearsay can be defined as by by statute or by rule. So the constitution itself is giving uh the legislature and the courts the ability to define what constitutes reliable hearsay. Uh as far as your honor's question about what you would like what the state would like you to review as far as the exhibits go, we just renew our request that the the court review all of the exhibits in preparation for the preliminary hearing. >> Thank you, Mr. Balot. Any other questions? Court. I've circled the exhibits we're asking the court to review. They are exhibits 11, 16, 30, 31, 32, 33, and 34. I have a copy for the court with those highlighted at the court. >> Mr. Yes. If you'd like to approach, you may appreciate it. All right. Thank you to both parties. Uh >> and judge, could I just briefly respond to the arguments that were made by the state? >> Uh just quickly to run through them. The state emphasizes there's a low burden at the prelim. Granted, it's a low burden, but as the uh state versus virgin vir case said, low burden does not mean no burden. And the US Supreme Court in Coleman versus Alabama uh recognized that the burden of proof at the prelim is very low. They nevertheless held that the defendant has a six amendment right to the effective assistance of counsel. So the fact that it's a low burden does not govern whether procedural rights uh should be applied and the Coleman case holds exactly that. Um the state says that the degree of reliability depends on the nature of the proceedings. That's true. But this is a case where the state of Utah has provided procedural rights at the preliminary hearing. Unlike grand jury proceedings, there are rights granted by statute to counsel. There's constitutional right to counsel. There is a right by statute to call defense witnesses to subpoena witnesses. So the court has to take those uh procedural indisha into account in determining what other rights might be applicable and both the US Supreme Court and the Utah Supreme Court has said that the preliminary hearing is a critical stage of the proceedings. The state says that uh citing this ninth circuit brief opinion, the Peterson case, that it's illogical that the preliminary hearing must have greater protection than grand jury proceedings. It might be illogical, but the reality is that defendants are accorded greater rights in preliminary hearings than at grand jury proceedings. There is no right to counsel at grand jury proceedings. There is no right to subpoena defense witnesses at a grand jury proceeding. And yet in Utah, as elsewhere, defendants do enjoy those rights to uh certain protections. And once having defined that it's an adversary critical proceeding, the state has an obligation to provide the tools necessary to make that uh confrontation meaningful. um state emphasizes that the defense has a right to call witnesses. Theoretically true but irrelevant in this case because as the court will see from reviewing the exhibits how the state proposes to make its case in this case is exclus exclusively through the use of hearsay. So calling a record custodian or a police officer who has no uh knowledge about the essential elements of the of the offense. The defense could cross-examine that person on some uh chain of custody issues, but it's got nothing to do with the critical issues before the court, which is all the essential elements shown by probable cause. And in this case, those elements are going to be satisfied by hearsay alone. Uh the defense says that or the state says that there's no equal protection problem here because uh we're not similarly situated to probation or parole violators. In all three of those cases, the interest at stake is whether the defendant should be confined uh for prolonged periods of time pending the outcome of this hearing. So, a parole revocation hearing, especially the preliminary parole revocation hearing, is very uh in fact it's indistinguishable from a preliminary hearing. The the goal is the same to determine whether there's cause to hold the person deprive that person of liberty uh pending further proceedings. Uh so there is an equal protection violation here. Um the state says that the court can only look to the sixth amendment. As I understand the argument, the court cannot look to procedural due processes guaranteed by the 14th amendment. It cannot look to equal protection. It cannot look to the eth amendment. Uh it cannot look to any other doctrines beside the sixth amendment to determine confrontation. And we've pointed to the court a long line of cases in both uh the US Supreme Court and the Utah Supreme Court which uh refute that contention. It's clear the court has an obligation to look at whatever constitutional provisions are implicated by the procedure in question. And the Utah Supreme Court uh when it was looking at the subpoena powers case looked at whether the act violated confrontation rights, equal protection, separation of powers. No one ever suggested that the court had no power to look at uh various constitutional theories. That theory is not supported by the case law. And then lastly, the state says that we've cited no cases to the court saying that the eth amendment applies to preliminary hearing procedure in this case. And that's simply not true. Uh Greg versus Georgia said that every procedural protection, every procedural protection must be observed in a capital case, not at a capital trial, in a capital case. And as charged right now, this is a capital case. And we've also started to court the Ford case, Ford versus Wayne Wright, also along the same lines saying that in capital proceedings, there's a heightened need for reliability. Um and then lastly in our reply we cited a whole string of uh state court cases which hold that at the preliminary hearing at the preliminary hearing not the trial the preliminary hearing the court has an obligation to employ a heightened standard of reliability. Thank you. >> Thank you. >> All right. Thank you to the parties. We're turning to the last item and just cutting to the chase. Uh, does the state oppose defendants request on >> And there is also the scheduling of the responses to an EMC request which we discussed. >> Okay. if you would like to approach the lum. Um, your honor, the So, this is a basically a motion to begin the process of compelling of getting a subpoena for an out ofstate witness. >> Yes. >> Um, here's the issue is Mr. We know that from the pleading that uh the out of state witness's attorney has declined to accept service for their client. Um, and this witness has appeared by 11:02. We believe appropriate and satisfies probable cause. The the rule requires defense council to certify that this witness is necessary and material to the probable cause determination. Under State B Lopez, we don't believe it is. We got this at 803 last night. I have I looked at it for the first time uh just moments ago. What I'd really like to do is have a couple of days to respond to this. I know time is of the essence, but um that's that's where we're at. So, I really don't want to respond right now. If I did, I'd probably submit on what I've said right now. >> I see. Thank you. Uh to defense, um is there any additional briefing needed uh in addition to what you've submitted on And so I'm just trying to seeing if there is trying to create an expedited >> only only to respond expeditiously to whatever the state files. So for example, and again we're both going off the I'm now responding to Mr. McBride statement. This is not a Lopez situation. The witness is not the victim in this case as your honor knows. So, it's not a Lopez situation. Um, it's a question of whether the witness is a material witness. Um, so I think to squarely answer the court's question, we need a very short period of time after the state responds and if the witness's council wants to respond to file, I guess what we would call a reply. Um, but we are moving as we we can move as quickly as the court requires. >> Thank you. to the state and how much time and again I realize that this is >> All right. So, we're looking at Tuesday the 16th of June. >> All right. Close of business. Uh Mr. Novak, with that information, I think Thursday the 18th. >> All right. I close the business as well. >> And actually, in some ways, this may or may not sync. Anyway, go ahead. I'm sorry. >> Well, and I know where you're going. Is does that sync pretty closely with the the last remaining issue briefing on the potential? Well, the problem with that is until it's filed, the request for an EMC that starts to time. I I my lawyer math doesn't get me to how close we are to the prelim off the fly, but um that's the trigger point. >> I was an economist before I was a lawyer, so my math might help. Um >> so you just want to hold that there for a second and move on to the other one and then see if they're in sync or what did you want? >> Well, and I'm fine. It sounds like we have a good understanding for the briefing on uh that particular docket 593. So that that's been resolved. Turning to the last issue is uh in regards to the AMC when would the 14 days uh so right now the court's order from May says that um media requests need to be filed 14 days before the proceeding. 14 days before the proceeding um which is on July 6th is June 22 um >> which would from Monday >> pardon >> a week from this coming Monday. >> So this is what I was going to propose and we did meet and confer about this and my understanding of the state's position is they don't want the court to change its order. Okay. So, I understand that's their position, but here's our proposal. Um, we propose that for purposes of the preliminary hearing of July 6th, if it proceeds on that date, that the court um adopt the following schedule. Any request for electronic media coverage should be filed. um next Wednesday, June 17th, and we will take it upon ourselves, meaning Mr. Robinson's defense council to personally notify council who've entered their appearances on behalf of the media entities of any new deadline that the court sets today. So, we will notify them uh so that the court doesn't have to rush into publishing an amended order unless the wants to do so, but we can notify them. Copy the state, copy the court staff. Um, it's a form as I understand it. This is the event. This is who's going to be behind the cameras. It's submitted. Okay? It's not a complicated um document. So this is my suggestion is that we will notify the media representatives today that any request for EMC needs to be filed with the court by the 17th which is Wednesday. Today's Friday. We have an issue which is a small delay between when it's filed and when it's docketed. And so what I'm going to suggest is that two days, two court days after it's docketed, we will file anybody who's opposing it will file a response. And then um two more court days for anybody who wants to respond to that and two more court days for a reply. The court's already set page limits which are very um modest. I think it's four pages, four pages and three pages. That's fine. The court has said there won't be any oral argument. That's fine. But if my schedule plays out correctly and we were we got a docketed EMC request on the 17th and we filed our response on the 19th and the state filed any response to our papers on Monday the 22nd and then we filed a reply on the 24th it would be fully briefed by the 24th which gives us six plus 6 12 days before the pre- thank you Mr. back to state wish to be >> Yes, your honor. Thank you. I think we're not discounting the importance of and the significance of the media issues in this case. Um, but I think it's significant, as your honors already noted earlier this morning, that you granted a very generous um, opportunity to deal with these electronic media requests. That it's far more generous than what the rule requires. It it appears to me that what the defense wants is an opportunity to get a ruling from this court on electronic media requests so that then if it's a it's a ruling that they don't agree with that then they can seek yet another interlocatory appeal and perhaps file a motion to stay this case. And if you look at the the procedure that the rule has already established the controlling rule 4-4 uh one the the rule does not contate appellet review of every electronic media coverage order. And that's clear from the fact that the rule only allows one day notice for a request for electronic media coverage. And in fact, it says that the court on good cause can grant a request for electronic media coverage. Uh it can shorten the one-day time. Um I think it could be, you know, as the hearing commences if there was good cause. So the um as the court has already established its schedule, it allows 14 days um before the hearing for the request under that current schedule, the court could have a ruling on the request by July 2nd um which would be before the hearing. So we don't believe that the that this procedure which presumes that electronic media coverage those requests will be granted that it needs to be set up so that there can be the potential for for appellet review of every one of those orders. >> Thank you. >> All right. Thank you to the parties. I appreciate I appreciate you conferring with each other and trying to find a solution. I'm going to respectfully decline uh decline to adopt what Mr. Novak presented. And here's why. There's nothing that precludes the media from filing today that request and and being ahead of of the deadline. And again, that's outside of my perview. It's their choice if they choose to file or if they choose to file one at all. And so the court will uh rely upon the previously set schedule. Again, if the media files early, that doesn't preclude the parties from filing as soon as they they can or they wish to. And the court still having sufficient time to uh do its do its duties. And so that that's the ruling of the court as it relates to different schedule as it relates to media requests for coverage EMC of the preliminary hearing on July 6th. goes to the very last issue which is uh the court is taking these two issues argued today under adisement and as this court typically does I always like to review everything and I appreciate the quality of the arguments the quality of the briefing and what is clear to me the hard work of both defense and prosecution and and the seriousness applied to these important issues. Uh if you wouldn't mind taking a look at your calendars, uh the court has an opening on June 22nd at 9:30 a.m. to issue rulings on both of these matters. And uh as is traditionally has happened, it's done on WebEx, but of course, I'll hear from the parties on their preference as well as the attendance of Mr. Robinson It's okay. 9:30 in the morning. >> Mr. Robinson's will ask a jail. >> All right. Thank you to the parties. Anything further or any party needs the benefit of the record before we go into adjournment? All right. Thank you all and court is now >> adjourned.