Latest / Beyond The Horizon / Tyler Robinson Preliminary Hearing Transcripts (Day 3 Part 5) (10/5/26)

Transcript

Tyler Robinson Preliminary Hearing Transcripts (Day 3 Part 5) (10/5/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up, everyone, and welcome back to the program. In
• 0:03
  Speaker 1: this episode, we're going to dive right back in to
• 0:05
  Speaker 1: the Tyler Robinson prelim hearing, day number three. And we're
• 0:09
  Speaker 1: picking up with the defense taking over. Question, thank you.
• 0:14
  Speaker 1: So I'm going to address first, Your Honor, what Ms.
• 0:17
  Speaker 1: Hunt describes as the procedural issues with our proposed redactions. Many,
• 0:21
  Speaker 1: many weeks ago, the state lodged their anticipated exhibits with
• 0:25
  Speaker 1: the court. And then the court said, I'm not going
• 0:28
  Speaker 1: to review them. In fact, I'm returning them. I'm sorry.
• 0:31
  Speaker 1: The court said that the court is returning the exhibits
• 0:33
  Speaker 1: to the estate. So there is no moment to make
• 0:36
  Speaker 1: objections to an exhibit which the court is not inclined
• 0:39
  Speaker 1: to entertain until the moment, as the court has said
• 0:42
  Speaker 1: many times, until the exhibit is presented. And so what
• 0:46
  Speaker 1: we have done is we've given the state, it's only
• 0:48
  Speaker 1: a 20-page transcript, excuse me, we have given the state
• 0:51
  Speaker 1: a transcript that we've prepared out of time so that
• 0:54
  Speaker 1: the state can make sure that the transcript is accurate.
• 0:57
  Speaker 1: The state has never said that the transcript is inaccurate,
• 1:00
  Speaker 1: so I'm going to assume, for the purpose of the moment,
• 1:03
  Speaker 1: that the state doesn't have any dispute that the transcript
• 1:06
  Speaker 1: is an accurate transcription of Mr. Twiggs' recorded 1102 interview.
• 1:11
  Speaker 1: There's no surprise here. There's been all of Monday evening,
• 1:15
  Speaker 1: all of Tuesday, this morning. In fact, the state informed
• 1:18
  Speaker 1: me yesterday morning that they don't agree to the redactions.
• 1:21
  Speaker 1: So there's no surprise here. And we're actually doing exactly
• 1:25
  Speaker 1: what the court signaled should be done. which is at
• 1:28
  Speaker 1: the time an exhibit is proffered, objections shall be made.
• 1:32
  Speaker 1: This wouldn't be as much of a problem if the
• 1:34
  Speaker 1: prosecution had just said to Your Honor following Archuleta, and
• 1:37
  Speaker 1: in light of the electronic coverage of the proceeding, and
• 1:40
  Speaker 1: in light of Mr. Robinson's right to a fair trial,
• 1:43
  Speaker 1: the court will consider those portions of the exhibit which
• 1:47
  Speaker 1: are admissible, and the court will not consider those portions
• 1:50
  Speaker 1: which it determines are not admissible, but it will not
• 1:54
  Speaker 1: be broadcast either audio or video. So that becomes a
• 1:57
  Speaker 1: problem because the categories of objections that we have to
• 2:01
  Speaker 1: this video recording, I'm going to talk about a little
• 2:03
  Speaker 1: bit so that the court understands why Ms. Hunt's suggestion
• 2:07
  Speaker 1: that the entirety of an exhibit, which may not be
• 2:09
  Speaker 1: admissible under the rule of evidence at a prelim hearing,
• 2:12
  Speaker 1: be played in open court, and that the audio be
• 2:15
  Speaker 1: captured by electronic media and broadcast. Because of our client's
• 2:20
  Speaker 1: right to a fair trial, that's a problem. And I
• 2:22
  Speaker 1: don't want to sound flippant, but this is actually the
• 2:25
  Speaker 1: Ryan McBride 1102. The vast majority of this video is Mr.
• 2:29
  Speaker 1: McBride testifying and Mr. Twiggs agreeing. If we were in
• 2:33
  Speaker 1: a courtroom, it would be a leading examination virtually from
• 2:36
  Speaker 1: start to finish. I don't want to say that every
• 2:39
  Speaker 1: single statement by Mr. Twiggs is just an affirmation of
• 2:42
  Speaker 1: what Mr. McBride says, but the vast majority of it is.
• 2:47
  Speaker 1: There are also portions of this 1102 where Mr. McBride
• 2:50
  Speaker 1: is basically testifying as to what other exhibits that this
• 2:54
  Speaker 1: court will see say. So there are two other exhibits
• 2:58
  Speaker 1: that this court will be asked to review and receive
• 3:00
  Speaker 1: into evidence today, which are text messages and a group chat.
• 3:05
  Speaker 1: I'm just going to distinguish between the two. So this
• 3:08
  Speaker 1: 1102 statement is basically Mr. McBride saying, and then the
• 3:13
  Speaker 1: chat says this, and then the chat says that, and
• 3:16
  Speaker 1: then the chat says this. He's basically testifying as to
• 3:21
  Speaker 1: what the exhibits say. So in some ways, the 1102,
• 3:24
  Speaker 1: those portions of the 1102, violate the best evidence rule
• 3:28
  Speaker 1: because I have no doubt that those two things that
• 3:30
  Speaker 1: I just talked about are going to be presented to
• 3:33
  Speaker 1: the court by the state. There are also portions of
• 3:36
  Speaker 1: this 1102 which are not relevant and really implicate Mr.
• 3:40
  Speaker 1: Twigg's privacy rights. And I'm not Mr. Twigg's counsel. As
• 3:44
  Speaker 1: the prosecution said, he has counsel. I don't know if
• 3:48
  Speaker 1: he is. Well, I don't want to speculate. But it's
• 3:50
  Speaker 1: not relevant. There are portions of it which are not
• 3:54
  Speaker 1: relevant and there are portions of it which I think
• 3:56
  Speaker 1: especially to be broadcast implicate other privacy interests. So I'm
• 4:01
  Speaker 1: not trying to create complications, and I'm definitely not trying
• 4:04
  Speaker 1: to take the state by surprise, because I went to
• 4:07
  Speaker 1: great lengths to provide the state with a transcript, with
• 4:10
  Speaker 1: a proposed redacted transcript, and in fact today, we prepared
• 4:14
  Speaker 1: to make it easier on the state, and actually your honor,
• 4:17
  Speaker 1: instead of having redactions with big black sections, we highlighted
• 4:20
  Speaker 1: them instead. So if the court wants to look at
• 4:23
  Speaker 1: our proposed redactions, the court can do that without having
• 4:26
  Speaker 1: to compare the two documents. The other thing I want
• 4:28
  Speaker 1: to say is that if the court did order ultimately
• 4:30
  Speaker 1: that portions of it would be broadcast in any way
• 4:34
  Speaker 1: in the courtroom, outside of the courtroom, we're not trying
• 4:36
  Speaker 1: to change the state's exhibit from video to audio to
• 4:40
  Speaker 1: a transcript. The transcript is really being used as a
• 4:43
  Speaker 1: tool to address the inadmissible portions of the video because
• 4:47
  Speaker 1: there's no way to communicate to the court efficiently which
• 4:50
  Speaker 1: portions of the video are we think are not admissible.
• 4:54
  Speaker 1: It's much easier to do it on paper, so the
• 4:56
  Speaker 1: transcript is just a tool. We have the ability right
• 4:59
  Speaker 1: here in this courthouse to cut the video into pieces
• 5:03
  Speaker 1: that the court deems admissible. Mr. Ellis tells me it'll
• 5:06
  Speaker 1: probably take a couple hours at most, so maybe that's
• 5:10
  Speaker 1: also not a concern. There's no delay associated with this
• 5:13
  Speaker 1: in light of the fact that it's Wednesday and this
• 5:16
  Speaker 1: court's going to conclude this hearing by Friday afternoon. So
• 5:20
  Speaker 1: I've gone beyond the procedural issues I've addressed, and I
• 5:23
  Speaker 1: think that portions of it are not admissible. There's no surprise.
• 5:27
  Speaker 1: We followed exactly what the court has signaled, which I
• 5:30
  Speaker 1: don't want to hear about exhibits until we're in the
• 5:32
  Speaker 1: middle of the hearing, and I don't want to hear
• 5:34
  Speaker 1: objections about it until we're in the middle of the hearing.
• 5:36
  Speaker 1: The litigation over whether Section 1102 is constitutional under Mr.
• 5:42
  Speaker 1: Robinson's federal due process rights and the other rights that
• 5:46
  Speaker 1: were addressed, that litigation does not mean that that we
• 5:49
  Speaker 1: should have brought to the court proposed redactions to an
• 5:51
  Speaker 1: exhibit in a hearing which hasn't started yet, in a
• 5:54
  Speaker 1: hearing in which the state hadn't until 20 minutes ago
• 5:58
  Speaker 1: even proffered an exhibit. So I understand that the state
• 6:02
  Speaker 1: wants to avoid the substance by trying to short circuit
• 6:05
  Speaker 1: this with a procedural argument. And the prosecution is a
• 6:09
  Speaker 1: very excellent advocate for their client. But the reason why
• 6:12
  Speaker 1: the state is going to the procedural issue is because
• 6:15
  Speaker 1: the exhibit contains significant content that is not admissible even
• 6:19
  Speaker 1: in a preliminary hearing. So I'm just going to stop now.
• 6:23
  Speaker 1: But I do want to go back and say that
• 6:25
  Speaker 1: if the court concluded that only your honor was going
• 6:27
  Speaker 1: to review this exhibit and the archer letter rule be
• 6:30
  Speaker 1: extended to the exhibit, including that it's not going to
• 6:33
  Speaker 1: be broadcast, then I think we have a different path
• 6:36
  Speaker 1: toward the efficient resolution of the issue. Judge Graff, all right.
• 6:42
  Speaker 1: Does that make sense, your honor? Ask the defense, Judge Graff.
• 6:47
  Speaker 1: I believe I understand what you're saying. So let me
• 6:49
  Speaker 1: respond to you before I go to the prosecution. So
• 6:53
  Speaker 1: going to your first point in regard to this court's
• 6:55
  Speaker 1: position and not looking at exhibits, that doesn't preclude any
• 6:58
  Speaker 1: party from filing a motion in limine, which is anticipated
• 7:02
  Speaker 1: before anything is moved into evidence. Typically, motions in limine
• 7:07
  Speaker 1: are used by either side on anticipated exhibits or that
• 7:11
  Speaker 1: may come into court and that allows pre-litigation. So I
• 7:15
  Speaker 1: want to clarify that the court's statements I'm not looking
• 7:18
  Speaker 1: at the exhibits is far different than what the parties
• 7:21
  Speaker 1: chose to do and file in regard to a motion
• 7:24
  Speaker 1: in limine. I really want to go to what you've
• 7:27
  Speaker 1: talked about. What specific objections are you making? I want
• 7:31
  Speaker 1: to make sure that the request is clear so I
• 7:34
  Speaker 1: can rule specifically on that. What exactly? I think I
• 7:37
  Speaker 1: understand some of them, but I wish for you to
• 7:39
  Speaker 1: articulate what your objections to state exhibit 16. Defense. Significant.
• 7:45
  Speaker 1: We could do it line by line or page by page.
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  Speaker 1: I know we've had hearings in this matter where the
• 7:50
  Speaker 1: court has wanted to look at transcripts line by line,
• 7:53
  Speaker 1: word by word. We're prepared to do that. But I'm
• 7:56
  Speaker 1: going to give the court categories without referring to specific portions.
• 8:00
  Speaker 1: There are many portions of which are not the statement
• 8:04
  Speaker 1: of Mr. Twiggs. There are Mr. McBride testifying on video
• 8:07
  Speaker 1: as to what other exhibits say. And Mr. Twiggs is saying, yeah,
• 8:12
  Speaker 1: that's what it says. Yeah, that's what it says. Yeah.
• 8:15
  Speaker 1: That's what it says. Judge Graff, I apologize. I don't
• 8:19
  Speaker 1: mean to interrupt you. I just want to characterize it
• 8:23
  Speaker 1: and put it in a box. So what objection under
• 8:25
  Speaker 1: the rules of evidence is that specifically? What are you
• 8:29
  Speaker 1: boxing that as? Defense? Well, first of all, it's counsel testifying.
• 8:34
  Speaker 1: Second of all, it's hearsay. It's Mr. McBride's out-of-court statement
• 8:39
  Speaker 1: as to what an exhibit says. There is a best
• 8:41
  Speaker 1: evidence rule, which I'm sure the court is familiar with.
• 8:45
  Speaker 1: which is the best evidence of what an exhibit says,
• 8:48
  Speaker 1: is the exhibit. So we may have a little bit
• 8:50
  Speaker 1: of a cart before the horse here, because there are
• 8:53
  Speaker 1: two exhibits that I'm very confident are coming. There are
• 8:56
  Speaker 1: portions which are not relevant. There are portions which I
• 9:00
  Speaker 1: believe are inadmissible when the court balances under 403. The
• 9:05
  Speaker 1: approbative value versus the prejudicial value, especially in light of
• 9:08
  Speaker 1: the manner in which the hearing is being broadcast. So
• 9:12
  Speaker 1: we have improper testimony by counsel, We have the best
• 9:15
  Speaker 1: evidence rule, which I think also includes hearsay. We have
• 9:18
  Speaker 1: relevance issues and we have 403 issues. But what I'm
• 9:22
  Speaker 1: saying is that are all those things that the court
• 9:25
  Speaker 1: can manage as Mr. Hunt and Mr. O'Brien have taught
• 9:28
  Speaker 1: us today in terms of the court's prelim assessments, the
• 9:32
  Speaker 1: court's role as a magistrate and the archer letter rule
• 9:34
  Speaker 1: that allows this court to decide certain exhibits will not
• 9:38
  Speaker 1: be viewed or heard by the public because it interferes
• 9:41
  Speaker 1: with Mr. Robinson's right to a fair trial. Judge Graff,
• 9:44
  Speaker 1: thank you. Defense continues on. I heard exactly what the
• 9:48
  Speaker 1: court said about the in limine situation, but I do
• 9:51
  Speaker 1: want to just say this, and I hope it's taken
• 9:53
  Speaker 1: in the right spirit. If this court had said to us,
• 9:56
  Speaker 1: I'm returning the exhibits, but if any party has any objection...
• 10:00
  Speaker 1: to any exhibits, I want to hear about that before
• 10:03
  Speaker 1: the hearing. Well, we certainly would have done so. And
• 10:06
  Speaker 1: I think it's probably for counsel a suggestion about how
• 10:09
  Speaker 1: future hearings, where there are many or complex exhibits, because
• 10:14
  Speaker 1: there will be such hearings, should be handled, which is
• 10:17
  Speaker 1: we can do in limine before the hearing begins so
• 10:20
  Speaker 1: that the court knows these exhibits, there are no disputes,
• 10:23
  Speaker 1: these exhibits, and we don't have to waste courtroom time
• 10:27
  Speaker 1: bringing up to the court and bringing the court up
• 10:29
  Speaker 1: to speed on what those concerns are. It can all
• 10:32
  Speaker 1: be briefed ahead of time, and we're happy to do that.
• 10:35
  Speaker 1: Judge Graff, thank you. Well, going to the last point,
• 10:39
  Speaker 1: let me be clear on the record. that I don't
• 10:41
  Speaker 1: intend to interfere with the duties of either party. It's
• 10:43
  Speaker 1: not my job to say, well, here's what you should do.
• 10:46
  Speaker 1: Here's what you shouldn't do. I'm independent. I'm not team prosecution,
• 10:51
  Speaker 1: team defense. So I will not dictate how you run
• 10:54
  Speaker 1: your case. Obviously, if it goes against certain rules, constitutional rights, statutes,
• 10:59
  Speaker 1: case law, I will weigh in. But I never want
• 11:03
  Speaker 1: to put my finger on and say, well, defense, here's
• 11:06
  Speaker 1: what I think you should do. Or to the state,
• 11:09
  Speaker 1: Here's what I think you should do. That goes outside
• 11:11
  Speaker 1: my role and I will not deviate from my role,
• 11:14
  Speaker 1: which is not to interfere with the business of counsel.
• 11:18
  Speaker 1: And I'm fortunate as a district judge that I have
• 11:21
  Speaker 1: very experienced attorneys who have watched and have done an
• 11:25
  Speaker 1: excellent job. And you're experienced. As I stated on, I
• 11:28
  Speaker 1: believe in the pro hoc vice, highly experienced attorneys on defense,
• 11:32
  Speaker 1: highly experienced attorneys on prosecution. So, I do not want
• 11:37
  Speaker 1: to get into the business of saying, here's what you
• 11:39
  Speaker 1: should do. I hear what you're saying, but I want
• 11:42
  Speaker 1: to be clear from this point on, in case there's
• 11:45
  Speaker 1: any ambiguity, the court does not need to go into
• 11:48
  Speaker 1: the business of dictating what you feel is in the
• 11:51
  Speaker 1: best interest of your client to the state what is
• 11:54
  Speaker 1: in the best interest in your client. I'm staying clear
• 11:57
  Speaker 1: of that, but I appreciate the point you're making, and
• 11:59
  Speaker 1: I hope that that clarifies any ambiguity that may exist. Defense,
• 12:05
  Speaker 1: there was no ambiguity. I don't think what I was
• 12:07
  Speaker 1: conceptualizing puts the court's finger on anybody's scale. I think
• 12:11
  Speaker 1: it's really about case management. And now I think we're
• 12:14
  Speaker 1: moving pretty far away from the admissibility of this 1102 statement.
• 12:18
  Speaker 1: And we could have a conversation later if the court
• 12:20
  Speaker 1: wants to. It's up to the court about the case
• 12:23
  Speaker 1: management issue. But as I said before, if anything else,
• 12:27
  Speaker 1: I'm going to be repeating myself. So I'm just going
• 12:30
  Speaker 1: to stop. Judge Graff, all right. Thank you. Appreciate your thoughts. Prosecution?
• 12:37
  Speaker 1: And the prosecution now has their say. Yes, thank you, Judge.
• 12:41
  Speaker 1: And as I tried to parse out, obviously, we have
• 12:44
  Speaker 1: procedural objections which may, depending on how the court rules,
• 12:47
  Speaker 1: make the substantive objections moot or unnecessary. But to the
• 12:52
  Speaker 1: defense's point about this not being a surprise, yes, to
• 12:55
  Speaker 1: be fair, he did send me a transcript with proposed
• 12:58
  Speaker 1: redactions on Monday, I believe at about 4pm. It was
• 13:02
  Speaker 1: not accompanied by any objection that he actually had. So
• 13:07
  Speaker 1: we have to compare the transcript and, to our best guess,
• 13:10
  Speaker 1: come up with what the substantive objections may be. I'm
• 13:14
  Speaker 1: ready to respond to what I believe they may be,
• 13:16
  Speaker 1: and obviously he's now given categories, but I think we're
• 13:19
  Speaker 1: at the point where the court needs to exercise its
• 13:21
  Speaker 1: ability and obligation under Rule 104a to decide a prelim
• 13:27
  Speaker 1: question about whether evidence is admissible. But before we do that,
• 13:31
  Speaker 1: because to argue the substantive objections, I want to actually
• 13:35
  Speaker 1: get into the substance of it. So I think I
• 13:37
  Speaker 1: need to consider whether this is going to be a
• 13:39
  Speaker 1: closed hearing and then probably, I don't know, I'm assuming
• 13:42
  Speaker 1: the media attorney will want to weigh in because I
• 13:45
  Speaker 1: don't want to quote specific sections to be able to
• 13:48
  Speaker 1: advocate for my position, state's position on this. I think
• 13:51
  Speaker 1: we'll need to get into the meat of what is
• 13:53
  Speaker 1: actually stated here. So I think the court needs to
• 13:56
  Speaker 1: decide if this is going to happen to be an
• 13:59
  Speaker 1: open or closed hearing and hear from the media or
• 14:02
  Speaker 1: any other party that needs to weigh in on that.
• 14:05
  Speaker 1: Judge Graff, all right. Anything further from the parties as
• 14:09
  Speaker 1: it relates to that? The defense jumps in again. Only
• 14:13
  Speaker 1: that the prosecution invited the media to comment on what
• 14:16
  Speaker 1: the court's going to do. And as Your Honor knows
• 14:19
  Speaker 1: from conducting jury trials and other proceedings, sidebars are not
• 14:23
  Speaker 1: for the public. They're not for the public in real time,
• 14:26
  Speaker 1: and they're not for the public subsequently. It's very standard
• 14:30
  Speaker 1: that sidebar proceedings, where information is only to be exchanged
• 14:33
  Speaker 1: between counsel for the parties, and the court are conducted
• 14:37
  Speaker 1: at sidebar so that witnesses, jurors, members of the public
• 14:41
  Speaker 1: don't hear about those things. And so we're assuming that
• 14:44
  Speaker 1: if the court wants to do this in what we
• 14:47
  Speaker 1: would call a sidebar or in a closed hearing, that
• 14:49
  Speaker 1: the transcript of that is going to remain at least
• 14:52
  Speaker 1: temporarily sealed until these proceedings conclude or the court conducts
• 14:56
  Speaker 1: some closer analysis on a topic-by-topic basis. So that's what
• 15:00
  Speaker 1: sidebars are about. Whether it's done in a closed hearing
• 15:04
  Speaker 1: or in an open hearing through whisper, the public, potential witnesses, jurors,
• 15:09
  Speaker 1: potential jurors, don't get to hear what the court decides
• 15:12
  Speaker 1: needs to be addressed in a manner which protects the
• 15:15
  Speaker 1: party's rights. Judge Graff, all right. Next, well, next up
• 15:20
  Speaker 1: we have the representative for the media, Your Honor, if
• 15:24
  Speaker 1: I may, Michael Judd, behalf of the media. A request
• 15:28
  Speaker 1: to close a court proceeding isn't a sidebar, and calling
• 15:31
  Speaker 1: it a sidebar doesn't make it one. The court knows
• 15:34
  Speaker 1: the rules at this point. Any attempt to close a
• 15:36
  Speaker 1: hearing requires that the court engage in some sort of
• 15:39
  Speaker 1: hearing about the closure that is open to the public.
• 15:43
  Speaker 1: It can't be done in whisper. That can't be done
• 15:46
  Speaker 1: with the camera off. There are occasions where a court
• 15:49
  Speaker 1: may find it necessary to put some portion of some
• 15:52
  Speaker 1: hearing behind closed doors, but the conversation about whether or
• 15:55
  Speaker 1: not that happens, of course, has to take place in public.
• 15:58
  Speaker 1: I don't want to belabor any of the points that
• 16:01
  Speaker 1: are made. I think the court recognizes the interests at
• 16:04
  Speaker 1: issue here and what the media's position would likely be
• 16:07
  Speaker 1: on these. I'd like to find common ground. It appears
• 16:11
  Speaker 1: to be a significant piece of common ground here that
• 16:13
  Speaker 1: everybody seems to believe that the video interview that's at
• 16:17
  Speaker 1: issue here is very important. And that, of course, makes
• 16:20
  Speaker 1: people want to invoke protections, invoke closures. And from the
• 16:23
  Speaker 1: media's perspective, from the public's perspective, of course, that pushes
• 16:27
  Speaker 1: the other direction. Now, there may be moments of this
• 16:30
  Speaker 1: prelim hearing where There may be exhibits that do not
• 16:33
  Speaker 1: present significant pillars of support for the decision that the
• 16:36
  Speaker 1: court will ultimately be called on to make as a
• 16:39
  Speaker 1: gatekeeper and as a magistrate. It seems to me, while
• 16:43
  Speaker 1: I haven't seen the video, the public hasn't seen the video,
• 16:46
  Speaker 1: it seems to me that this appears likely to be
• 16:49
  Speaker 1: one of those pillars on which the state intends to
• 16:52
  Speaker 1: base its case and on which the court's ultimate decision
• 16:55
  Speaker 1: will likely rest. The counsel is in favor of access,
• 16:59
  Speaker 1: in favor of publication, in favor of allowing the public
• 17:02
  Speaker 1: to see the work that the court's doing and why
• 17:05
  Speaker 1: it's doing it. I recognize Archuleta has been invoked. We
• 17:08
  Speaker 1: respect and understand Archuleta. Respectfully, Archuleta, at least part of
• 17:12
  Speaker 1: its reasoning, is based on something very different than putting
• 17:15
  Speaker 1: something on a screen. In Archuleta, there was a request
• 17:19
  Speaker 1: to say, hey, is there a murder weapon? Are there
• 17:22
  Speaker 1: crime scene photos? Can we come handle those? Can we
• 17:25
  Speaker 1: look at them? Can we turn them over in our hands?
• 17:28
  Speaker 1: And part of the reasoning in Archuleta was we're worried
• 17:31
  Speaker 1: about what will impact the quality of evidence and the
• 17:34
  Speaker 1: obligation everybody has to keep that evidence reliable and safe.
• 17:39
  Speaker 1: Putting something on the screen doesn't present any of those
• 17:41
  Speaker 1: sorts of risks because this is so important. So this
• 17:44
  Speaker 1: interview appears to be such a critical piece of the
• 17:47
  Speaker 1: case being presented here in this courtroom today. The media's
• 17:51
  Speaker 1: position is that it should be shown on the screen
• 17:54
  Speaker 1: and that the public should be allowed to see it
• 17:56
  Speaker 1: as well. To the extent that there's any sort of
• 17:58
  Speaker 1: compromise at all, the one that's presented by the state
• 18:02
  Speaker 1: which would allow the public to monitor and oversee and
• 18:05
  Speaker 1: understand and comprehend and assist with the work being done
• 18:08
  Speaker 1: by the court, then something like the state has provided,
• 18:11
  Speaker 1: which is why we would put it, we allow the
• 18:13
  Speaker 1: audio to play. If there's some sort of, it sounds
• 18:16
  Speaker 1: to me, like what the state is saying is that
• 18:19
  Speaker 1: there's some sort of witness privacy issue that would be
• 18:21
  Speaker 1: served by turning the video off. Maximalist advocates on behalf
• 18:25
  Speaker 1: of the media would always want the video to be on.
• 18:29
  Speaker 1: But I recognize that may not be reasonable, and there
• 18:32
  Speaker 1: might be a reasonable compromise. But the idea of shutting
• 18:35
  Speaker 1: the courtroom down to argue about closure or keeping the
• 18:38
  Speaker 1: recording from the people in the courtroom who are allowed here,
• 18:41
  Speaker 1: the victim representatives, the media representatives, the public itself, is
• 18:45
  Speaker 1: simply a non-starter. I believe under the rules that govern
• 18:48
  Speaker 1: this proceeding, we ask the court to keep this as
• 18:51
  Speaker 1: open as possible. And if there's any sort of narrowing
• 18:53
  Speaker 1: of the public right to access here, that it be
• 18:56
  Speaker 1: done only in the narrowest way possible, and that it
• 19:00
  Speaker 1: be based only upon recognized interests. And finally, I would say,
• 19:03
  Speaker 1: Your Honor, to the extent that I hear any sort
• 19:06
  Speaker 1: of real counter-interest at all, it continues to be fair
• 19:09
  Speaker 1: trial interest. We take that important. We recognize that. It's important.
• 19:13
  Speaker 1: We take it seriously. The court has also, over and
• 19:16
  Speaker 1: over again, recognized that the right approach to that is
• 19:20
  Speaker 1: to say that there are mechanisms in place under an
• 19:23
  Speaker 1: audible to say we do expand voir dire, we do
• 19:26
  Speaker 1: a jury questionnaire, We can handle all those counter-interests, and
• 19:30
  Speaker 1: on behalf of the media and the public, I'd ask
• 19:32
  Speaker 1: the court to handle the dispute that way. Judge Graff, okay.
• 19:36
  Speaker 1: Anything further from the parties? Not from the state. Defense,
• 19:42
  Speaker 1: only that I want to make additional assertion about why
• 19:44
  Speaker 1: the court should handle this exhibit pursuant to Archuleta, but
• 19:47
  Speaker 1: I want to make that argument at sidebar. because the
• 19:50
  Speaker 1: whole point is to protect my client's right to a
• 19:52
  Speaker 1: fair trial. And by making part of his argument in
• 19:55
  Speaker 1: open court, it's a self-defeating exercise. So when the court
• 19:59
  Speaker 1: resolves whether it will hear from us at Sidebar, we're
• 20:02
  Speaker 1: prepared to do that. Judge Graff, all right, the issue
• 20:05
  Speaker 1: with Sidebar is public because the transcript's open. So it's
• 20:08
  Speaker 1: just because the parties request Sidebar and and the court
• 20:11
  Speaker 1: invokes the white noise, that doesn't make it private. It
• 20:14
  Speaker 1: simply obscures the noise in the courtroom, because that goes
• 20:17
  Speaker 1: in the transcript unless it's a closed hearing. Defense, then
• 20:21
  Speaker 1: we would like to have a very brief closed hearing
• 20:23
  Speaker 1: to lodge another objection about the publication of this, of
• 20:27
  Speaker 1: any portion of this exhibit. Well, of certain portions of
• 20:30
  Speaker 1: the exhibit beyond your honor's eyes, that's what I'm saying.
• 20:33
  Speaker 1: Judge Graff, all right, thank you. Right now, what we're
• 20:36
  Speaker 1: going to do is go ahead and do What I
• 20:38
  Speaker 1: want to do is I want to look at the
• 20:39
  Speaker 1: redactions that you're proposing and take a look at that.
• 20:43
  Speaker 1: And it's also the perfect time to take a break
• 20:45
  Speaker 1: because we need to bring in the monitor potentially for
• 20:47
  Speaker 1: future exhibits. So that's going to give us our 15 minutes.
• 20:51
  Speaker 1: I want to review this so I can be brought
• 20:53
  Speaker 1: up to speed because the transcript, from what I understand,
• 20:56
  Speaker 1: is just a transcript with suggestions of what defense wants
• 20:59
  Speaker 1: to redact. Is that correct? Answer by the defense, that's correct.
• 21:04
  Speaker 1: So what I would suggest, well, if this works for
• 21:06
  Speaker 1: the court, is we'll email the court staff something we've
• 21:09
  Speaker 1: already given the state, which is a proposed redacted version
• 21:13
  Speaker 1: of the transcript. I understand that the state wants a
• 21:16
  Speaker 1: video to be presented as evidence. We can get there
• 21:19
  Speaker 1: if the court concludes that there should be redactions. It's
• 21:22
  Speaker 1: not redacted through blackout. It's highlighted. So the highlights are
• 21:27
  Speaker 1: the proposed defense redactions. And Mr. Ellis can make sure
• 21:30
  Speaker 1: that the court staff receives that. And it can be
• 21:33
  Speaker 1: emailed to you or printed out, whatever works. Judge Graff,
• 21:37
  Speaker 1: any objections, Ms. Hunt, for the court reviewing the proposed
• 21:39
  Speaker 1: redactions in order to bring the court up to speed
• 21:43
  Speaker 1: at whatever argument the court may entertain? Prosecution, no, Judge,
• 21:47
  Speaker 1: but I want to clarify for the record and for myself.
• 21:50
  Speaker 1: Is the court ruling on my procedural objections? And I
• 21:53
  Speaker 1: want to reserve the right to make my substantive arguments
• 21:56
  Speaker 1: using what's actually in the exhibit. So being able to
• 22:00
  Speaker 1: quote directly from it, knowing... that if it's not a
• 22:03
  Speaker 1: closed hearing, those portions of what I'm saying are going
• 22:06
  Speaker 1: to be on the record and broadcast. Judge Graff, so
• 22:10
  Speaker 1: the court is not making a ruling right now. We're
• 22:12
  Speaker 1: just going to take a break, and then we're going
• 22:14
  Speaker 1: to come back on the record. But on the break,
• 22:16
  Speaker 1: I'm trying to maximize the time. And that's why I'm asking,
• 22:19
  Speaker 1: is there any objection to me reviewing what it sounds
• 22:22
  Speaker 1: like defense has sent you? Which is just the transcript
• 22:25
  Speaker 1: highlighting what they're anticipating redacting? I just want to bring
• 22:28
  Speaker 1: myself up to speed. So the next step, when I
• 22:31
  Speaker 1: make my ruling... the court's ready to go and maximizing
• 22:35
  Speaker 1: my time because we also want to put up a monitor.
• 22:38
  Speaker 1: So there's like three things we can accomplish in the
• 22:40
  Speaker 1: space of 15. And with that, they go to break.
• 22:44
  Speaker 1: So we're going to take a break here as well.
• 22:46
  Speaker 1: And the next episode dealing with the topic, we're going
• 22:48
  Speaker 1: to pick up where we left off. All the information
• 22:51
  Speaker 1: that goes with this episode can be found in the
• 22:54
  Speaker 1: description box.