Latest / The Epstein Chronicles / Tyler Robinson's Motion to Halt Further Testing of Bullet Fragment (Part 2) (7/23/26)

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Tyler Robinson's Motion to Halt Further Testing of Bullet Fragment (Part 2) (7/23/26) · The Epstein Chronicles

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Speaker 1: What's up everyone, and welcome back to the program. In
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Speaker 1: this episode, we're going to pick up where he left
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Speaker 1: off with Tyler Robinson and his ballistics motion In state
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Speaker 1: verse Tiedaman, the Utah Supreme Court was called on to
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Speaker 1: determine whether the Utah constitution due process clause imposed the
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Speaker 1: same requirement as its federal counterpart in cases where evidence
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Speaker 1: is destroyed two thousand and seven Utah forty nine, one
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Speaker 1: sixty two p. Dot three d eleven, zh six. The
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Speaker 1: Court ultimately departed from the Supreme Court's approach in Young
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Speaker 1: Blood as a matter of state due process, and instead
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Speaker 1: adopted an approach consonant with Rule sixteen of the Utah
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Speaker 1: Rules a Criminal Procedure, other state courts, interpretations of their
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Speaker 1: own constitutions, and other due process analysis idea at forty four.
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Speaker 1: This approach encompasses a threshold requirement that the defendant demonstrate
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Speaker 1: a reasonable probability that the lost evidence would have been
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Speaker 1: exculpatory id. If this threshold showing is met, then a
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Speaker 1: state due process claim is established, and the court then
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Speaker 1: considers two factors in order to assess the seriousness of
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Speaker 1: the violation and to determine the appropriate Remedy forty four
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Speaker 1: and forty five. See also State vers. DeJesus twenty seventeen,
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Speaker 1: Utah twenty two three ninety five, p. Dot three d
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Speaker 1: one eleven. State vers. Mohammed twenty seventeen, Utah twenty three
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Speaker 1: twelve three ninety five, p. Dot three d one thirty three.
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Speaker 1: The full Teetamin standard is as follows. In cases where
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Speaker 1: a defendant has shown a reasonable probability that lost or
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Speaker 1: destroyed evidence would be exculpatory, we find it necessary to
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Speaker 1: require consideration of the following one the reason for the
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Speaker 1: destruction or loss of the evidence, including the degree of
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Speaker 1: negligence or culpability on the part of the state, And two,
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Speaker 1: the degree of prejudice to the defendant in light of
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Speaker 1: the materiality and importance of the missing evidence in the
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Speaker 1: context of the case as a whole, including the strength
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Speaker 1: of the remaining evidence. Tetamin instructs that the touchstone for
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Speaker 1: the balancing process is fundamental fairness, and that if prejudice
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Speaker 1: to the defendant is extreme, fairness may require sanction even
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Speaker 1: where there is no wrongdoing on the part of the state.
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Speaker 1: In State vers. DeJesus, the court reaffirmed Tiedaman and responded
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Speaker 1: to the suggestion that the Concurrence that the Court should
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Speaker 1: abandon the state constitutional basis of Tietamin and rely instead
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Speaker 1: on the inherent discretion of the trial court two thousand
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Speaker 1: and seven Utah twenty two at twenty two. The Majority
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Speaker 1: was emphatic that we will not invoke the doctrine of
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Speaker 1: constitutional avoidance to essentially erase the court's previous conclusion that
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Speaker 1: the government's loss or destruction of exculpatory evidence directly implicates
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Speaker 1: due process idea thirty five. The DeJesus Court went on
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Speaker 1: the whole that the District Court erred by applying a
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Speaker 1: more stringent reasonable prim mobability standard than was required under
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Speaker 1: the due process analysis articulated in Tietamin, and then when
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Speaker 1: the correct standard was applied, Miss Dejesus's proffer as to
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Speaker 1: what surveillance footage of her alleged assault on prison guard
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Speaker 1: may have shown and how the footage would have been
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Speaker 1: aided in her defense, met the threshold by establishing a
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Speaker 1: reasonable probability that the footage would have been exculpatory twenty
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Speaker 1: seventeen Utah twenty two, fifty five. The Utah Supreme Court
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Speaker 1: concluded by doing so, Miss Dejeseus established that her due
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Speaker 1: process right to a fair trial was violated. We accordingly
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Speaker 1: must weigh the two Teetamin factors to gauge the severity
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Speaker 1: of the due process violation, and based on the negligence
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Speaker 1: of the state and failing to preserve the footage and
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Speaker 1: the crucial role that footage would have played in the case,
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Speaker 1: we ultimately hold that the dismissal is an appropriate remedy.
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Speaker 1: We therefore reversed the District Court's denial of Miss Dejesus's
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Speaker 1: motion to dismiss and remand to the court to enter
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Speaker 1: an order of dismissal id. The Court in DeJesus provided
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Speaker 1: the following clarification of what a defendant must show an
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Speaker 1: order to meet Tiedamin reasonable probability standard. Ultimately, in order
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Speaker 1: to satisfy the reasonable probability standard in the lost evidence context,
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Speaker 1: a defendant must make some profer as to the lost
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Speaker 1: evidence and its claim benefit. So long as the profit
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Speaker 1: is not pure speculation or wholly incredible, the standard will
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Speaker 1: be satisfied. The DeJesus Court concluded that the district court
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Speaker 1: erred because it had applied the standard that suggested that
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Speaker 1: defendants must provide evidence that the lost or destroyed evidence
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Speaker 1: was in fact exculpatory. This is too high of a burden,
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Speaker 1: given both the reasonable probability standard articulated in TETAMIN and
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Speaker 1: the fact that in many lost evidence cases there may
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Speaker 1: be little extrinsic corroborating evidence. Defendants will likely never be
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Speaker 1: able to fully establish exactly what the evidence would have shown. Instead,
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Speaker 1: all a defendant must show is that there is a
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Speaker 1: reasonable probability the evidence would have been exculpatory twenty seventeen,
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Speaker 1: Utah at forty Dejesuss also clarified that once the lacks
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Speaker 1: reasonable probability standard has been met, a state due process
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Speaker 1: violation has been established, and the other two factors listed
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Speaker 1: in TIEDAMIN related only to the seriousness of the violation
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Speaker 1: and the appropriate remedy idea at forty five Here pursuant
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Speaker 1: of the Courts November fourth, twenty twenty five order. Though
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Speaker 1: questioned evidence has not yet been destroyed or altered, so
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Speaker 1: the two Tietamin factors relevant to assessing the seriousness of
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Speaker 1: the violation and the appropriate remedy for destruction of evidence
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Speaker 1: are not yet at play. Even if they were, they
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Speaker 1: are satisfied in the case where destruction or alteration of
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Speaker 1: this evidence would be in bad faith because the FBI
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Speaker 1: clearly is on notice of the exculpatory ATF testing results
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Speaker 1: and the defense desired to test this evidence, and where
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Speaker 1: the state's present attempt to have this evidence objected two
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Speaker 1: three separate types of bullets or led composition analysis indicates
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Speaker 1: strongly the central role of the bullet evidence in the
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Speaker 1: case and the fact that such extensive testing would not
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Speaker 1: be taking place of the state believed that other evidence
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Speaker 1: in the case was strong enough to convict mister Robinson.
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Speaker 1: It's also important to stress that any attempt to assess
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Speaker 1: the strength of the other evidence in the case before
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Speaker 1: the bullet evidence has actually been destroyed or altered would
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Speaker 1: be highly problematic at this early stage of the case,
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Speaker 1: given the fact that discovery is ongoing and the defense
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Speaker 1: has not yet received all of the state's evidence, much
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Speaker 1: less investigated its strength. DeJesus makes clear that the lack
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Speaker 1: reasonable probability standard the court adopted for the consideration of
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Speaker 1: lost or destroyed standard was the same standard used in
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Speaker 1: Brady versus Maryland three seventy three US eighty three, nineteen
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Speaker 1: sixty three, which required an appeal that defendant demonstrate that
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Speaker 1: presentation of undisclosed evidence could have affected the outcome of
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Speaker 1: the preceding. See Dejesuss twenty seventeen, Utah twenty two through
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Speaker 1: twenty seven. Numerous federal cases have held that there is
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Speaker 1: a critical distinction between applying that standard in a pre
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Speaker 1: trial context as opposed to an appellate context, as explained
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Speaker 1: in the United States versus Cloud. We agree with the
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Speaker 1: district court that the government's suppression prejudice Cloud under the
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Speaker 1: materiality standard applicable to withheld evidence discovered before or during
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Speaker 1: the trial. This analysis differs from the traditional Brady scenario,
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Speaker 1: in which the government's suppression and discovered after the trial
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Speaker 1: and conviction. In the latter more typical Brady scenarios, suppressed
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Speaker 1: evidence is deemed material where there is reasonable probability that
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Speaker 1: had the evidence been disclosed to the defense, the result
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Speaker 1: of the preceding would have been different Strickler versus Green,
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Speaker 1: five twenty seven US to sixty three two eighty, nineteen
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Speaker 1: ninety nine. But, as we have observed, this standard necessarily
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Speaker 1: is a retrospective test. Evaluating the strength of the evidence
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Speaker 1: after trial has concluded. US Verusulsen, seven O four f
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Speaker 1: dot three D eleven seventy two, eleven eighty three, Ninth
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Speaker 1: Circuit twenty thirteen. This analytical framework is a poor fit
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Speaker 1: in cases like this one, where the suppression is discovered
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Speaker 1: during the trial and before a look back as possible
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Speaker 1: one O two f fourth nine six eight nine seventy nine,
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Speaker 1: Ninth Circuit twenty twenty four. See also idea nine seventy
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Speaker 1: nine and seventy collecting cases and noting that district courts
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Speaker 1: have for decades recognized this distinct materiality analysis. Again, such
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Speaker 1: a standard is especially a poor fit in this case,
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Speaker 1: where discovery is still ongoing and defense is therefore not
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Speaker 1: presently in a position to assess the strength of the
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Speaker 1: other evidence in the case. In some allowing the state
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Speaker 1: to repeat a process that it has already used to
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Speaker 1: examine a critical piece of evidence with the result that
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Speaker 1: evidence was altered without first granting the defense access to
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Speaker 1: this evidence or adopting other immedial measures creates precisely the
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Speaker 1: type of unfairness and unreliability that tiedamin was designed to prevent.
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Speaker 1: Neither the need for the second examination, nor more importantly,
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Speaker 1: the need to manipulate the same yet again with a
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Speaker 1: pair of pliers has been explained, and the FBI admits
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Speaker 1: the fragment is fragile, has already been altered, and it's
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Speaker 1: possible that additional pieces of the fragment may inadvertently become
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Speaker 1: detached during the VCM analysis example at one in three.
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Speaker 1: Given the fragility of the sample and the results of
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Speaker 1: the ATFS using a set of pliers to manipulate the
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Speaker 1: sample in the same way the FBI would now like
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Speaker 1: to repeat, the court cannot safely conclude that further alteration
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Speaker 1: of the sample is only possible. Rather, that result seems
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Speaker 1: reasonably likely to happen. If the bullet fragment is a
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Speaker 1: gain altered to the point where no independent comparison is possible,
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Speaker 1: then the degree of prejudice to the defendant is severe.
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Speaker 1: The defense will be unable to identify or independently verify conclusions,
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Speaker 1: cross examination will be unfairly limited, and the jury will
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Speaker 1: hear unchallengeable expert testimony. Lastly, if the bullet fragment is
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Speaker 1: again altered to the point where no independent comparison is possible,
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Speaker 1: no reasonable alternative evidence will remain to conduct the analysis.
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Speaker 1: This imbalance and access to critical evidence will violate mister
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Speaker 1: Robinson's state and federal constitutional rights to due process, to
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Speaker 1: fundamental fairness, to present the defense, to confront and cross
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Speaker 1: examine adverse witnesses, and to be free from prohibition against
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Speaker 1: cruel and unusual punishment. Section two Utah Rule of Criminal
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Speaker 1: Procedure sixteen requires disclosure and meaningful access to all physical evidence.
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Speaker 1: The tetament in court also elaborated on the rule based
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Speaker 1: right afforded by UURCP sixteen, articulating it's a matter of
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Speaker 1: clear Utah law and criminal defendants are entitled information possessed
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Speaker 1: by the state to aid in their defense. Rule sixteen
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Speaker 1: of the Utah Rules of Criminal Procedure imposes broad obligations
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Speaker 1: on prosecutors to produce such information or make it available
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Speaker 1: to the defendant Utah two thousand, seven, forty nine, and
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Speaker 1: forty one. The Titamin Court cited in numerous other instances
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Speaker 1: where the Utah Supreme Court enforced Rule sixteen's requirements, such
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Speaker 1: as a decision in State Verse Night, the prosecutor's good
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Speaker 1: faith should not have had any impact on the trial
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Speaker 1: court's determination of whether the prosecutor had violated his discovery duties.
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Speaker 1: The prosecutor's good faith ignorance does not excuse non disclosure.
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Speaker 1: If any weight were given to the good faith ignorance,
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Speaker 1: it would only encourage after the fact justification for non disclosure,
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Speaker 1: quoting State Verse Night seven thirty four p Dot two
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Speaker 1: D nine thirteen, nine eighteen and five nineteen eighty seven here.
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Speaker 1: Early on in this case, mister Robinson filed a formal
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Speaker 1: request for discovery pursuing two UCRP sixteen and request for
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Speaker 1: four oh four B notice dock at sixty one, requesting
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Speaker 1: production of several categories of evidence, including all physical and
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Speaker 1: electronic evidence pursuant to URCP sixteen A one C and
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Speaker 1: the underlying data, research and information upon which any expert
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Speaker 1: relied in forming his or her opinion, including any books, papers, documents, data, photographs,
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Speaker 1: or tangible objects dock at sixty one, at three to ten.
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Speaker 1: It's self evident that mister Robinson's right to the production
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Speaker 1: and independent testing of physical evidence will be compromised if
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Speaker 1: the State alters or destroys the evidence before the defense
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Speaker 1: is given the opportunity to independently examine and test it. C.
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Speaker 1: State versus Alvarez, two thousand and six, Utah sixty one
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Speaker 1: thirty six one forty seven p. Dot three d four
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Speaker 1: to twenty five. The administration of justice requires convenient access
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Speaker 1: to evidence where this access can be provided in a
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Speaker 1: reasonable fashion. In DeJesus, the Court clarified that, in referencing
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Speaker 1: Rule sixteen, we did not ground the teetam in test
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Speaker 1: in our rules of criminal procedure. We instead pointed lower
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Speaker 1: courts to our approach under Rule sixteen, where the culpability
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Speaker 1: or a bad faith of the state should only be
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Speaker 1: one consideration, not a bright line test. Unlike young Blood,
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Speaker 1: as a matter of state due process, Rule sixteen therefore
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Speaker 1: does not govern cases of lost or destroyed evidence. It
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Speaker 1: merely provides a helpful framework for applying the teedamin test
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Speaker 1: twenty seventeen Utah twenty two and thirty two. In this case, however,
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Speaker 1: the evidence in question has not yet been lost or destroyed.
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Speaker 1: It therefore remains subject to the strictures of Rule sixteen,
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Speaker 1: which would clearly be violated if the state alters physical
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Speaker 1: evidence before the defense has the opportunity to either examine
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Speaker 1: and test it, or be provided with other means to
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Speaker 1: secure mister Robinson's rights. Part three. Mister Robinson offers reasonable
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Speaker 1: methods to protect his constitutional and statutory rights. Although the
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Speaker 1: issue raised in this motion has not yet been raised
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Speaker 1: in the appellate case in the specific context of destructive
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Speaker 1: comparative bullet fragment testing, it's a common one in cases
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Speaker 1: involving DNA and other forensic evidence. In that context. The
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Speaker 1: American Bar Association Standard for Criminal Justice DNA Evidence, third Edition,
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Speaker 1: two thousand and seven DNA Standards Standards sixteen three point
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Speaker 1: four E consumptive testing. If a motion objecting to consumptive
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Speaker 1: testing is filed, the court should consider ordering procedures that
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Speaker 1: will permit an independent evaluation of the analysis, including but
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Speaker 1: not limited to the presence of an expert representing the
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Speaker 1: moving party during evidence preparation and testing, and videotaping or
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Speaker 1: photographing the preparation and testing ideas seventy five and seventy six.
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Speaker 1: The commentary to this standard contains helpful summary of then
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Speaker 1: existing case law on this topic as it relates to
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Speaker 1: DNA and other types of forensic evidence. This procedure may
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Speaker 1: be constitutionally required under certain circumstances. For example, in commenting
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Speaker 1: on the due process issues raised by destructive testing, the
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Speaker 1: Colorado Supreme Court wrote it may be incumbent on the
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Speaker 1: state to contact the defendant to determine whether he wishes
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Speaker 1: his expert to be present during the tests. People versus Gomez,
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Speaker 1: five ninety five p. Dot two, d. Eleven ninety two,
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Speaker 1: eleven ninety seven, Colorado, nineteen seventy nine. In a later case,
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Speaker 1: People versus Gary's six forty five p. Dot two d.
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Speaker 1: Thirteen oh six, thirteen oh nine, Dash ten, Colorado, eighty two,
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Speaker 1: the court suppressed bloodstain evidence because it was destroyed in testing.
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Speaker 1: The state had neither photographed the test results nor provided
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Speaker 1: the defense with the opportunity to have its own expert
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Speaker 1: present during analysis. As Garys indicates, there may have been
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Speaker 1: other ways to satisfy to douse process in the context
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Speaker 1: in lieu of the presence of defense experts. In State
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Speaker 1: Verse Thomas four twenty one se two D. Two twenty seven,
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Speaker 1: two thirty four, West Virginia, nineteen ninety two, the West
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Speaker 1: Virginia Supreme Court ruled that if the prosecution conducts complicated
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Speaker 1: tests there are electrophoretic blood tests that consume all the
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Speaker 1: tests a substance, the state must preserve as much documentation
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Speaker 1: of the test as is reasonably possible to allow for
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Speaker 1: a full and fair examination of the results by a
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Speaker 1: defendant and his experts Ida, seventy seven, also citing Commonwealth
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Speaker 1: Wealth first Glenowitz five hundred n dot e dot two
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Speaker 1: d thirteen twenty four, thirteen twenty seven, Massachusetts, nineteen eighty six.
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Speaker 1: The defendants received no notice of the impending tests, and
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Speaker 1: thus were not able to have their own expert present
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Speaker 1: to observe and potentially refute the subjective aspects of the
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Speaker 1: blood test state Verse Gaddus five thirty s dot w
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Speaker 1: dot two D sixty four sixty nine Tennessee, nineteen seventy five.
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Speaker 1: When such a situation arises, good faith demands that no
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Speaker 1: test or analysis be made except by agreement between the
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Speaker 1: district attorney and defense council, or until such defense council
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Speaker 1: may arrange to have his own expert present at the
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Speaker 1: test state Verse Right five point fifty seven p dot
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Speaker 1: two d. Washington, nineteen seventy six. Before any testing or
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Speaker 1: disposition of evidence occurs, the defendant should be given notice
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Speaker 1: of the type of evidence involved and its planned disposition.
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Speaker 1: Following the publication of Standards sixteen Dotah three dot four E,
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Speaker 1: the Colorado Supreme Court held in people verse Ortina acting
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Speaker 1: to avoid or mitigate failure to preserve evidence. The court
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Speaker 1: may order that evidence cannot be destroyed, or may permit
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Speaker 1: the consumptive testing of evidence, except on unusual circumstances. This
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Speaker 1: authority does not extend a dictating procedure to a particular
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Speaker 1: laboratory or ordering the proper secution to pay for a
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Speaker 1: defense expert. Nonetheless, the court may exercise its authority over
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Speaker 1: the evidence by prohibiting testing and does not comply with
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Speaker 1: procedures adopted by the court to permit independent evaluation of evidence.
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Speaker 1: We have not previously addressed whether, in the exercise of
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Speaker 1: its authority to set appropriate procedure, the court may require
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Speaker 1: videotaping of testing procedures as a condition of permitting consumptive testing.
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Speaker 1: The American Bar Association recently addresses the duty to preserve
18:29
Speaker 1: evidence in consumptive testing situations, noting in the Criminal Justice
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Speaker 1: Section Standards on DNA Evidence that court should consider ordering
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Speaker 1: procedure such as videotaping that would allow for independent evaluation.
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Speaker 1: We agree with the recommendation of the American Bar Association
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Speaker 1: and adopt Standard three dot four E in the absence
18:50
Speaker 1: of controlling precedent Standards sixteen DASH three dot four E,
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Speaker 1: and the case is cited above provide the court with
18:57
Speaker 1: helpful guidance in assessing whether the remedies being so suggested
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Speaker 1: by mister Robinson to protect his constitutional and statutory rights
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Speaker 1: are reasonable. The FBI is no stranger to those remedies,
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Speaker 1: and at least one of them should be adopted here ceg.
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Speaker 1: United States Harpam number two eleven CR DASH zero zero
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Speaker 1: zero four to two DASH JLQ twenty fifteen w L
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Speaker 1: four six two three seven one seven at three Eastern District, Washington,
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Speaker 1: August third, twenty fifteen. The FBI constructed and detonated similarly
19:33
Speaker 1: constructed IEDs to demonstrate that harpams would have functioned properly. However,
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Speaker 1: the government conducted this test in Virginia without notice two
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Speaker 1: or presence of the defense. Therefore, on September TEWOD, twenty eleven,
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Speaker 1: the Court ordered that by September eight, twenty eleven, the
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Speaker 1: government reconstruct three ied explosion tests with the defense expert
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Speaker 1: witness present conclusion based upon the four go the Court
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Speaker 1: should order a relief consistent with mister Robinson's request. This
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Speaker 1: document was dated January ninth of twenty twenty six, and
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Speaker 1: it was signed by Michael Bert, Katherine Nester, Richard Novak,
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Speaker 1: and Stacy Visser. All the information that goes with this
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Speaker 1: episode can be found in the description box