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Tyler Robinson Preliminary Hearing (Day 6 Part 10) (11/1/26) · The Moscow Murders and More

• 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 pick up where we left
• 0:05
  Speaker 1: off on day number six of the Tyler Robinson prelim hearing. Mr. Novak,
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  Speaker 1: thank you, Your Honor. Your Honor, as Ms. Visser previewed,
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  Speaker 1: I'm going to address count number six. I'm going to
• 0:21
  Speaker 1: address count seven and I'm going to address the two
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  Speaker 1: alleged enhancements. I know the court has read our briefing
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  Speaker 1: on this, so I'm going to highlight the factual and
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  Speaker 1: legal principles that we think compel the court to find
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  Speaker 1: that the state has not produced sufficient evidence to bind Mr.
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  Speaker 1: Robinson over on those two counts, and that the enhancement
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  Speaker 1: also lacks sufficient evidence to proceed in this prosecution. I
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  Speaker 1: want to talk first about count six, and I'm going
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  Speaker 1: to be very, if I may, focused on the text
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  Speaker 1: of the allegation because the allegation itself is really what
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  Speaker 1: we have to compare the evidence. Count seven. charges Mr.
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  Speaker 1: Robinson with the felony offense of tampering with a witness.
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  Speaker 1: The information specifically says that the conduct he engaged in
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  Speaker 1: that constitutes tampering with a witness was now, I'm quoting,
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  Speaker 1: to wit directing his roommate to stay silent if police
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  Speaker 1: questioned the roommate. Now, Mr. McBride sort of very casually
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  Speaker 1: suggests that what Mr. Robinson was doing in that specific
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  Speaker 1: moment was trying to protect himself and not trying to
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  Speaker 1: protect Mr. Twiggs from what the state, is now accusing Mr.
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  Speaker 1: Robinson of having done. And we need to look very,
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  Speaker 1: very specifically at the statement attributed to Mr. Robinson that
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  Speaker 1: forms the basis for the specific allegation, again, to wit,
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  Speaker 1: directing his roommate to stay silent if police question the roommate.
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  Speaker 1: The State Exhibit 16.1 is what the state presents as
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  Speaker 1: text messages between Robinson and Lance Twiggs. If the court
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  Speaker 1: looks at Exhibit 16.1, it's a series of screenshots of
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  Speaker 1: text messages. The testimony was that Lance Twiggs was showing
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  Speaker 1: law enforcement the text messages and law enforcement officers took
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  Speaker 1: screenshots of the phone that Lance Twiggs was holding when
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  Speaker 1: showing law enforcement officers these text messages. The specific words
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  Speaker 1: that the information alleges constitute the violation in Count 7
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  Speaker 1: are and now I'm quoting from Exhibit 16.1. If any
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  Speaker 1: police ask questions, ask for a lawyer and stay silent.
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  Speaker 1: Make sure the police follow the right procedures, proper warrants
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  Speaker 1: and stuff. Be polite and respectful, of course. So the
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  Speaker 1: first thing I want to point out in the text message,
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  Speaker 1: excuse me, the text message was sent. Give me a second, please.
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  Speaker 1: This is on page 18 of exhibit 16.1. The nearest
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  Speaker 1: timestamp on the text message is on page 10, which
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  Speaker 1: says yesterday at 5.55 p.m. So that would have been
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  Speaker 1: the day before Mr. Twiggs was speaking with law enforcement,
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  Speaker 1: but at 5.55 p.m. If the court looks at the
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  Speaker 1: text messages that come just before it, what the court
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  Speaker 1: sees is somebody who the state alleges is Mr. Robinson
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  Speaker 1: saying to Twiggs, I'm going to turn myself in willingly.
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  Speaker 1: One of my neighbors here is a deputy for the sheriff.
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  Speaker 1: And then the text message goes on. Why is that important? Well,
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  Speaker 1: that's important because the court knows from the prelim hearing
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  Speaker 1: testimony is that the person that the state says is Mr.
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  Speaker 1: Robinson had left Orem had returned all the way to St. George.
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  Speaker 1: and the court knows this through Mr. Mitchell's 1102, had
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  Speaker 1: spoken with Mr. Robinson's father and had arranged for Mr.
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  Speaker 1: Mitchell to help Mr. Robinson surrender to the Washington County Sheriff.
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  Speaker 1: That has already occurred when Mr. Robinson, according to Mr. Twiggs,
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  Speaker 1: is saying, if any police ask you questions, ask for
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  Speaker 1: a lawyer and stay silent. Just before that, he says,
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  Speaker 1: you are all I worry about, love. So the case law,
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  Speaker 1: which we present basically requires this court to determine whether
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  Speaker 1: whether Mr. Robinson's statements to Mr. Twiggs were intended to
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  Speaker 1: obstruct justice or were altruistic. What is more clear in
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  Speaker 1: terms of altruism than having already decided to surrender and saying,
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  Speaker 1: you're all I worry about, love. If any police ask
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  Speaker 1: you questions, ask for a lawyer and stay silent. That
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  Speaker 1: is actually a demonstration of altruism. That is a demonstration
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  Speaker 1: of caring for another person. That's a demonstration of what Mr.
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  Speaker 1: Robinson said to Mr. Twiggs, you are all I worry about, love.
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  Speaker 1: But he also tells him, make sure that the police
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  Speaker 1: follow the right procedure, proper warrants and stuff. Be polite
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  Speaker 1: and respectful, of course. So I don't see how the
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  Speaker 1: court can accept Mr. McBride's suggestion that this is an
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  Speaker 1: effort to obstruct an investigation. There is a separate charge
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  Speaker 1: concerning what the state refers to as destruction of evidence.
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  Speaker 1: That's not what this charge is about. This charge is
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  Speaker 1: to wit, directing his roommate to stay silent if police
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  Speaker 1: question the roommate. Now, Mr. McBride tries to say that, oh,
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  Speaker 1: it's not a Fifth Amendment issue because Mr. Robinson's the
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  Speaker 1: only person who has any Fifth Amendment issues. And that
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  Speaker 1: actually ignores this concept in the law that was embodied
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  Speaker 1: in Miranda v. Arizona. I think everybody in the courtroom
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  Speaker 1: who has a law degree knows that Miranda v. Arizona
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  Speaker 1: says that every person in this country has a right
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  Speaker 1: to remain silent and the right to ask for an attorney.
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  Speaker 1: And it's not just the Fifth Amendment. It's also the
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  Speaker 1: Sixth Amendment, the essence of the Supreme Court decision. So
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  Speaker 1: not only is Mr. McBride misstating the law, he is
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  Speaker 1: misapplying it. What Mr. Robinson is saying to Mr. Twiggs is,
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  Speaker 1: you don't have to answer any questions. You have the
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  Speaker 1: right to ask for an attorney. You're all I worry about, love.
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  Speaker 1: We cannot allow the state to make that statement in
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  Speaker 1: the context of a criminal offense because it completely undermines
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  Speaker 1: well-established constitutional law that applies here. and everywhere else. Again.
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  Speaker 1: It's after Mr. Robinson has said to Mr. Twiggs, I'm
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  Speaker 1: going to turn myself in willingly. Mr. Twiggs asked before Mr.
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  Speaker 1: Robinson said that, is there any way you don't go
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  Speaker 1: to prison? Mr. Robinson doesn't say. Well, as long as
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  Speaker 1: you keep your mouth shut, I won't go to prison,
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  Speaker 1: he says. I highly doubt it. You're all I worry about, love. So,
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  Speaker 1: I think it's clear that this court needs to strike
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  Speaker 1: count six, because what Mr. Robinson said to his roommate
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  Speaker 1: was not for the purpose of obstructing an investigation or
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  Speaker 1: a proceeding. It was, as the case law says, altruistic.
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  Speaker 1: And now, we'd like to move on to count seven,
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  Speaker 1: which alleges a misdemeanor subject to the enhancement, but it
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  Speaker 1: alleges initially a misdemeanor committing the charged homicide in the
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  Speaker 1: physical presence of a child younger than 14, with the
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  Speaker 1: knowledge that a child was present and may have seen
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  Speaker 1: or heard the commission of the criminal homicide. The evidence
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  Speaker 1: I'm going to show you will echo what Ms. Vister said,
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  Speaker 1: the evidence that was actually presented at the prelim hearing,
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  Speaker 1: and not the evidence that Mr. McBride tried to testify
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  Speaker 1: about today, which wasn't presented at the hearing, and was
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  Speaker 1: some inferential problems as well, which I address. Was a
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  Speaker 1: single video taken by a single woman, we have her
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  Speaker 1: 1102 in evidence, showing that her child was present? That's
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  Speaker 1: not evidence upon which the court can reasonably infer that Mr.
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  Speaker 1: Robinson knew that the child or any other child was present. Mr.
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  Speaker 1: McBride's comments about Orem and UVU welcoming children and being
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  Speaker 1: the center of families, that's nice, but it's not evidence.
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  Speaker 1: And it's certainly not evidence that Mr. Robinson, if he
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  Speaker 1: was the shooter, knew that there were children present at
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  Speaker 1: this rally. What Mr. McBride showed this court was his
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  Speaker 1: careful analysis of photographs that had been previously introduced into evidence.
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  Speaker 1: And we don't know how long it took Mr. McBride,
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  Speaker 1: but he eventually found and was able to circle for
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  Speaker 1: this court the three children that he could find in
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  Speaker 1: a photograph that he studied in his office as he
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  Speaker 1: was preparing his opening statement. The evidence presented at the
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  Speaker 1: prelim hearing was that the shooter was on the edge
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  Speaker 1: of that roof from 30 to 43 seconds. So one
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  Speaker 1: cannot take Mr. McBride's careful analysis of photographs after the
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  Speaker 1: fact and import that info what somebody on the edge
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  Speaker 1: of the roof saw. The fact that somebody saw Mr.
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  Speaker 1: Robinson wandering around the campus before the rally occurred doesn't
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  Speaker 1: mean that Mr. Robinson knew that there were children present
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  Speaker 1: at the time of what the state says he did,
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  Speaker 1: which was to fire his weapon from the roof. So,
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  Speaker 1: I don't think every inference has to be treated as
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  Speaker 1: a reasonable inference by the court just because the state
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  Speaker 1: says that you can infer. That's not the same as
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  Speaker 1: reasonable inferences being weighed against the defendant or in favor
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  Speaker 1: of the state's case. The court needs to decide what
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  Speaker 1: inferences are and are not reasonable. And I think that
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  Speaker 1: the state is stretching considerably the difference between evidence and inferences.
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  Speaker 1: So I think that count seven suffers from the same problem.
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  Speaker 1: And of course, that would therefore apply to all the
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  Speaker 1: victim targeting. I'm sorry, not the victim targeting enhancements, but
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  Speaker 1: in the presence of child enhancements. The argument that this
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  Speaker 1: court doesn't need to determine whether or not there's any evidence,
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  Speaker 1: let alone probable cause to support enhancements because they don't
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  Speaker 1: increase the punishment is actually not true. There's a difference
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  Speaker 1: in the language between aprendi and what the Utah statute says,
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  Speaker 1: but the effect is the same. What the Utah statute
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  Speaker 1: says is that if you can prove a certain fact,
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  Speaker 1: the court shall consider that an aggravating circumstance. That means
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  Speaker 1: that the court shall create on the scales as to
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  Speaker 1: whether or not there should be an enhanced sentence, an aggravator,
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  Speaker 1: it's proven. The court is now told, here's an aggravator.
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  Speaker 1: And if there are no mitigations, then the sentence is enhanced.
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  Speaker 1: So I don't think it's as clear cut as Mr.
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  Speaker 1: McBride would like the court to conclude. And I think
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  Speaker 1: that this court needs to determine whether or not probable
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  Speaker 1: cause as to the enhancement and the last enhancement, which
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  Speaker 1: I will address. And that, of course, is whether or
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  Speaker 1: not Mr. Kirk was targeted because his political expression. from Mr.
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  Speaker 1: Robinson's perspective. And I think that the question here really,
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  Speaker 1: which the state can answer with reasonable inference from evidence
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  Speaker 1: is there's no evidence as to really what was in Mr.
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  Speaker 1: Robinson's mind. If in fact he was a shooter about
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  Speaker 1: Charlie Kirk, Because we have no testimony that Mr. Robinson
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  Speaker 1: had ever spoken about Charlie Kirk, that he'd ever heard
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  Speaker 1: anything he'd said, that he'd ever discussed anything, Mr. Twiggs
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  Speaker 1: was asked during the recorded interview whether he'd ever discussed Mr.
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  Speaker 1: Kirk with Mr. Robinson. The answer was no. There's no
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  Speaker 1: evidence that Mr. Robinson, having heard or seen anything specific
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  Speaker 1: from Mr. Kirk, or having expressed anything about Mr. Kirk
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  Speaker 1: until the statement, which basically says, some hatred can't be
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  Speaker 1: negotiated out. So, what is it? Is it political expression?
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  Speaker 1: Which political expression? Is it true that Mr. Kirk spoke
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  Speaker 1: hatefully of certain groups of people? He spoke hatefully of
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  Speaker 1: people who don't have traditional norms conforming gender identities. He
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  Speaker 1: spoke hatefully about people who are not strictly heterosexual. He
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  Speaker 1: spoke hatefully about people who have sexual relationships out of marriage.
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  Speaker 1: And yes, it's true that the evidence from Mr. Twiggs
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  Speaker 1: is that he identified in a non-gender conforming way to
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  Speaker 1: his friend's and that he was in a romantic relationship
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  Speaker 1: with Mr. Robinson. But that doesn't mean that those personal
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  Speaker 1: choices by Mr. Twiggs and Mr. Robinson equate with the
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  Speaker 1: hate that at least Mr. Robinson says he had toward Mr. Kirk.
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  Speaker 1: So we don't know what that is. We don't know
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  Speaker 1: where there's a gap between what it is and what Mr.
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  Speaker 1: Kirk said and stood for. The phrase in the statute
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  Speaker 1: is political expression. And what is it that Mr. Robinson
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  Speaker 1: felt about him? And it's a significant gap because that
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  Speaker 1: allows the state to do some makeup. Oh, it must
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  Speaker 1: be about this relationship. It must be. It can't be
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  Speaker 1: about foreign policy. It can't be about immigration. It can't
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  Speaker 1: be about taxation or economics. It must be because the
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  Speaker 1: look at these two young people and the way they live.
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  Speaker 1: And that's an inference without any evidence. And it's a
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  Speaker 1: very inflammatory inference. And what makes it even more inflammatory
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  Speaker 1: is that the state chose to wrap it in religion
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  Speaker 1: because now we can't really talk about it because we
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  Speaker 1: can't criticize somebody's religious views. But the real problem is
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  Speaker 1: that there's this gap between the way in which Mr.
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  Speaker 1: Robinson and Lance Twiggs have a relationship and what it's
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  Speaker 1: about Mr. Kirk's political expression. And we don't really understand.
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  Speaker 1: The state didn't present any evidence as to the etchings
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  Speaker 1: or what they mean. They're memes. There's something that comes
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  Speaker 1: from the digital games. There are some slightly immature expressions,
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  Speaker 1: but none of what is really explained. I mean, as Ms.
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  Speaker 1: Visser said, the state had a week to put on
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  Speaker 1: any evidence they wanted. The court didn't exclude any proffered
• 12:48
  Speaker 1: witness to explain what those things mean and how they
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  Speaker 1: may link up between something Mr. Kirk had said and
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  Speaker 1: something Mr. Robinson's state of mind. And I think they
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  Speaker 1: didn't do it. And so I think that the state
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  Speaker 1: has utterly failed to prove that there's a particular political
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  Speaker 1: expression that Mr. Robinson took issue with. We all know
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  Speaker 1: because we live in the real world these kinds of
• 13:10
  Speaker 1: things that Mr. Kirk said, which some people find hateful,
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  Speaker 1: But that's not the same as the state producing evidence
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  Speaker 1: about what Mr. Robinson thought, because it's about Mr. Robinson's
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  Speaker 1: state of mind as to the political expression. So I'm
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  Speaker 1: going to conclude by saying that both enhancements in count
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  Speaker 1: six and seven cannot go forward in the case because
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  Speaker 1: in addition to what Ms. Visser has argued and what Mr.
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  Speaker 1: Burt has argued with respect to the aggravator, because the
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  Speaker 1: state has failed to produce sufficient evidence. Thank you. All right, folks,
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  Speaker 1: we're going to wrap up right here. And when we
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  Speaker 1: get back, we'll pick up where we left off. All
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  Speaker 1: the information that goes with this episode can be found
• 13:50
  Speaker 1: in the description box.