A Utah judge in the case against the man accused of killing Charlie Kirk has postponed a decision on whether to find prosecutors in violation of a pretrial publicity order, and, if so, whether to take the death penalty off the table as the remedy.
Instead of deciding on the violation issue during a ruling hearing Monday in the case against Tyler Robinson, district court Judge Tony Graf set a Friday morning hearing to address it.
Also at Monday’s hearing, Graf ruled prosecutors will be allowed to present hearsay evidence during Robinson’s preliminary hearing, scheduled to begin next month.
At a hearing earlier this month, Robinson’s attorneys argued comments made to several media outlets by Christopher Ballard, one of the prosecutors and a spokesperson for the Utah County Attorney’s Office, violated the judge’s order, issued in September and amended in December, prohibiting the parties from making public comments about the case except under certain circumstances.
Robinson’s attorneys asked Graf to remove the death penalty as a possible outcome if he determines prosecutors violated the order and holds them in contempt of court. Robinson faces charges including aggravated murder, felony use of a firearm, obstruction of justice, and witness tampering in the September shooting death of conservative firebrand Kirk.
Robinson has not yet entered pleas. The main remedy Robinson’s defense suggested if prosecutors were held in contempt was for the death penalty to be removed as a possible punishment, should Robinson be convicted.
Other possible penalties for contempt include attending a continuing education program or referral to the state bar association, the defense said. Following the June 12 hearing where defense attorneys argued for a contempt finding, prosecutors filed an objection to the request, calling it grossly disproportionate to the alleged misconduct.
The documentation argues that to the extent the Court finds that the prosecution could have made a better statement, it certainly is not a misstep that warrants the drastic and never-before-imposed remedy of reducing the aggravated murder charge to a first-degree felony.
Robinson’s defense fired back with its own opposition brief, calling the objection uninvited and saying the court did not request nor authorize any written post-hearing briefing.
The defense filed the contempt motion in response to interviews Ballard gave to several media outlets at the end of March and beginning of April about an inconclusive ballistics report referenced in a March defense filing.
Ballard testified his remarks were about circumstances that can lead to an inconclusive test result, not about specific evidence, and said he included comments in each of the interviews indicating Robinson is presumed innocent.
He said he does not believe his comments violated the court’s order. Robinson’s attorney Richard Novak argued the comments were extremely reckless, stating he found no credibility in Ballard’s sworn testimony that he only intended to communicate with the media generally about bullet fragment analysis. Kirk’s shooting death on a Utah university campus last September triggered an avalanche of misinformation.
Robinson’s attorneys have repeatedly raised concerns about news coverage of the high-profile case potentially harming their client’s right to a fair trial. Ballard stated that the goal of the interviews was to respond to the specific media inquiries that were being generated by the misinformation in the filing.
The defense filing Ballard addressed in the media interviews—a motion to continue the preliminary hearing filed on March 27, states the Bureau of Alcohol, Tobacco, Firearms and Explosives was unable to identify the bullet recovered at autopsy to the rifle allegedly tied to Robinson.
Prosecutors argued the defense’s statement in the filing omits an important piece of the report’s conclusion, noting that the ATF was also unable to exclude the bullet as coming from the rifle. Ballard said that is what he was trying to clarify in the media.
During their testimonies, Ballard and Utah County Attorney Jeffrey Gray repeatedly pointed to a professional rule referenced in the order that allows attorneys to comment on public information when they believe there is a possibility of prejudicial pretrial publicity.
Graf on Monday ruled that he will allow prosecutors to submit hearsay evidence during Robinson’s preliminary hearing, which begins July 6.“In Utah, the primary purpose of the preliminary hearing is limited to determining whether probable cause exists,” Graf said.
“Although the preliminary hearing is a critical stage of the criminal process, it is not a trial and does not involve the determination of guilt or innocence.”Under Utah law, hearsay is any statement offered into evidence that is made by a person who is not testifying.
Defense attorney Michael Burt had argued a video deposition prosecutors conducted with a key witness is hearsay evidence and should not be admissible, as the witness could not be subject to cross-examination. The witness was later identified in court filings as Robinson’s roommate and romantic partner at the time of the shooting.
The roommate is expected to offer insight into digital messages related to the shooting, including what investigators allege is a confession by Robinson to the crime, and a handwritten letter that authorities say Robinson left on his desk under the keyboard.
“Defendant’s arguments rest on the premise that effective assistance of counsel requires access to the full range of adversarial tools, including cross-examination, at every stage of the criminal proceeding,” Graf said in his ruling.
“The court is not persuaded by defendant’s arguments.”Graf on Monday also declined to certify a subpoena from the defense that would have required the witness to give live testimony, after the witness’s attorney refused to accept service.
Ballard contended earlier this month the defense is not entitled to cross-examine witnesses in this instance, as they are during other types of hearings, because the preliminary hearing has the limited purpose of establishing probable cause to bring charges to trial.
Ballard added that if the court granted the defendant’s motion, it would be the first court to find that the Sixth Amendment right to confrontation applies at a preliminary hearing.