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Tyler Robinson Preliminary Hearing (Day 6 Part 9) (11/3/26) · The Vault: The Epstein Files

• 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
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  Speaker 1: day number six and the transcript from the Tyler Robinson
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  Speaker 1: prelim hearing. The state has not met its burden as
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  Speaker 1: to the aggravator here. We're asking the court to strike
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  Speaker 1: the aggravator. The facts at their core are that the
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  Speaker 1: shooter shot a high-powered rifle from a roof at a
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  Speaker 1: downward angle, hitting the victim in the left side of
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  Speaker 1: the neck at a distance of 415 feet. The angle
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  Speaker 1: is 415 feet. It's not 410. It had a telescopic
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  Speaker 1: scope on it. The shooter did not fire any more
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  Speaker 1: shots and, in fact, did not even reload. The shooter
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  Speaker 1: is not alleged to have engaged with anyone else, is
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  Speaker 1: not alleged to have pointed the rifle at anyone else,
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  Speaker 1: threatened anyone else, or done anything other than shoot the
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  Speaker 1: gun and run away. There was no ricochet. The only
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  Speaker 1: other individual under the tent, excuse me, with Mr. Kirk,
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  Speaker 1: like I described, was on the opposite side of him.
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  Speaker 1: This was an open air environment. This was not an
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  Speaker 1: enclosed space, and contrary to the screenshots that the state
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  Speaker 1: pulled from Exhibit 9, no one was behind the tent
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  Speaker 1: when Mr. Kirk was shot. Even assuming that the shooter
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  Speaker 1: might have some knowledge about that, which I think is
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  Speaker 1: a real stretch, because it's not like the tent was see-through,
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  Speaker 1: no one was behind Mr. Kirk when that shot was fired,
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  Speaker 1: and Mr. Kirk was seated at an elevated position. This
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  Speaker 1: is clearly visible in Exhibit 7. He's above those closest,
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  Speaker 1: so there's nothing in this evidence showing that there was
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  Speaker 1: a great risk that someone else was going to be killed,
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  Speaker 1: let alone that the shooter would have knowledge of that risk.
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  Speaker 1: It's not just a shot fired, it's what happened around it.
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  Speaker 1: That's what we know from Pierre Johnson and Sosa Hurtado.
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  Speaker 1: And my final comment, Your Honor, is we did spill
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  Speaker 1: much ink in our briefing about other cases describing the circumstances.
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  Speaker 1: We did discuss in some depth the Pennsylvania cases... upon
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  Speaker 1: which the state relied, and we did that for a reason.
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  Speaker 1: We did that to show the court that the court,
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  Speaker 1: first of all, shouldn't be adopting standards from another jurisdiction
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  Speaker 1: that hasn't already been adopted by the Utah Supreme Court,
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  Speaker 1: but also that the standard in the state is fuzzy.
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  Speaker 1: It's not clear based off their own case law. And
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  Speaker 1: there are a plenary of jurisdictions that have interpreted this
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  Speaker 1: aggravator the way that Utah does, considering these factors, so
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  Speaker 1: this court isn't doing something revolutionary. Striking the aggravator is
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  Speaker 1: the only conclusion supported by Utah law and by the Constitution.
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  Speaker 1: Does the court have any questions for me? Judge Graff,
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  Speaker 1: not at this time, thank you. The defense keeps it rolling. Judge,
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  Speaker 1: with the court's permission, I'm going to be narrowly focused
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  Speaker 1: on the comments that were made in the state's pleading
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  Speaker 1: and by Mr. McBride about the forensic evidence in the case,
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  Speaker 1: and specifically the DNA and firearms evidence. And the pleading say,
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  Speaker 1: very little, about either one of those topics. There's a
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  Speaker 1: sentence about the firearm evidence, and there is, I think,
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  Speaker 1: two or one sentence about the DNA reports. Nothing is
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  Speaker 1: said about the testimony of the three experts who testified
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  Speaker 1: here in front of the court. And that focus, I think,
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  Speaker 1: is consistent with the state's position throughout the hearing, which
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  Speaker 1: is that the court shouldn't look underneath the reports that
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  Speaker 1: the state chose to put in front of you. The
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  Speaker 1: expert reports are and specifically Exhibit 30-34, and their position,
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  Speaker 1: as they've argued to you during the hearing, was that
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  Speaker 1: by law, those reports constitute reliable hearsay evidence that this
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  Speaker 1: court must credit. And pursuant to that theory, they attempted
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  Speaker 1: throughout the prelim examination to cut off any questions about
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  Speaker 1: the reliability of the evidence that was offered through those reports.
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  Speaker 1: And as the court knows, the court rejected that theory
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  Speaker 1: in its ruling on our challenge to the admissibility of
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  Speaker 1: the hearsay evidence in the case. and I want to
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  Speaker 1: just remind the court of what the court said in
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  Speaker 1: its ruling. This is document 631. The court's ruling on
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  Speaker 1: the admissibility of the hearsay challenge that we brought, and
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  Speaker 1: I'm quoting here, the presumption of reliability is confined to
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  Speaker 1: the presumption that the hearsay evidence is admissible. The presumption
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  Speaker 1: does not require the magistrate to find the evidence credible
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  Speaker 1: or that it supports a finding of probable cause. the
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  Speaker 1: magistrate still retains the ultimate decision-making authority on whether probable
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  Speaker 1: cause has been established. Admissibility and evidentiary weight remain distinct concepts.
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  Speaker 1: Although Article 1, Section 12, and Rule 1102 permit the
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  Speaker 1: admission of reliable hearsay, they do not require the magistrate
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  Speaker 1: to accept the evidence as credible or sufficient to establish
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  Speaker 1: probable cause. And that's the court's ruling. And that's the
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  Speaker 1: law of the case. And so when the state, in
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  Speaker 1: its pleading, and here before you, gets up and argues
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  Speaker 1: that the defendant's DNA was all over the weapon, I
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  Speaker 1: think it ignores the court's ruling on this issue, because
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  Speaker 1: the court has to consider not just the report which
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  Speaker 1: they're relying on to make those assertions, but also has
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  Speaker 1: to consider the evidence that the defense was able to
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  Speaker 1: elicit over the state's objection that the court shouldn't even
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  Speaker 1: consider that. And if the court looks at the totality
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  Speaker 1: of the evidence that was submitted from the DNA expert
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  Speaker 1: and ballistic experts, I think that the court will and
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  Speaker 1: should conclude that the state's reliance on the DNA evidence
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  Speaker 1: and the ballistic evidence is not well taken. Mr. McBride
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  Speaker 1: in his argument said the defendant DNA was all over
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  Speaker 1: the weapon, but the weapon was tested by Ms. Oliver
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  Speaker 1: from the ATF, and in her report, if you just
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  Speaker 1: look at the report and not her testimony, what the
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  Speaker 1: report says, and this is Exhibit 30, her ultimate conclusion was,
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  Speaker 1: based on this calculation, there is evidentiary support for the
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  Speaker 1: inclusion of Tyler Robinson as a possible contributor. And that's
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  Speaker 1: the State Exhibit 30, a possible contributor. And she, as
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  Speaker 1: well as Ms. Baker from the FBI, went out of
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  Speaker 1: their way to explain to the court that based on
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  Speaker 1: the current state of science, there's no basis to conclude
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  Speaker 1: that based on the DNA testing that was done in
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  Speaker 1: the case, that a particular piece of DNA can be
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  Speaker 1: traced back to a source based on any of the
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  Speaker 1: testing that was done in the case. And that point
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  Speaker 1: is made not only in the testimony, but in the
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  Speaker 1: exhibits that were submitted to the court. Specifically, coroner, I'm sorry,
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  Speaker 1: Oliver exhibit number four, which is a DNA policy by
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  Speaker 1: the Department of Justice stating that an analyst shall not
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  Speaker 1: make a source attribution as to any piece of DNA.
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  Speaker 1: And also in Ms. Baker's exhibit seven, the DOJ policy again,
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  Speaker 1: stating the same thing. And the long and short of it,
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  Speaker 1: I think, it was summed up by Ms. Oliver when
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  Speaker 1: she was asked, This is at page 51 of her testimony.
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  Speaker 1: I'll just read this to the court. Question. So from
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  Speaker 1: a scientific standpoint, you couldn't read the paragraph that sets
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  Speaker 1: out the likelihood ratio in your report, whatever the number,
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  Speaker 1: and then blast the headline in the media. Mr. Robinson's
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  Speaker 1: DNA found on this item. That's a source attribution, is
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  Speaker 1: it not? Answer. Correct. Yes. And that would be scientifically defensible,
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  Speaker 1: would it? Answer. Correct. Correct. And she was consistent throughout
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  Speaker 1: her testimony on that point, as was Ms. Baker from
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  Speaker 1: the FBI. So the state is overreading the DNA evidence
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  Speaker 1: in the case, then asserts to the court that Mr.
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  Speaker 1: Robinson's DNA was found all over the weapon. What Ms.
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  Speaker 1: Oliver and Ms. Baker said was that Mr. Robinson was
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  Speaker 1: a possible contributor to the DNA, not that he was
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  Speaker 1: the contributor. And there's a good quote from a Utah case,
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  Speaker 1: State v. Rogers, 2020, Utah, Appendix 78. And in paragraph 35,
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  Speaker 1: the court says, the fact that something is possible does
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  Speaker 1: not make it probable. It's a simple common sense proposition. Mr.
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  Speaker 1: McBride urged you to apply common sense. And here's a
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  Speaker 1: good common sense proposition. The fact that something is possible
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  Speaker 1: does not make it probable. The standard is probable cause,
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  Speaker 1: not possible cause. And the DNA evidence in the case
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  Speaker 1: goes to the issue of the possibilities, not probabilities. And
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  Speaker 1: both experts were consistent in saying to the court that
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  Speaker 1: they couldn't reach a source attribution opinion. It was consistent
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  Speaker 1: in stating that they could not state with a reasonable
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  Speaker 1: degree of scientific certainty that Mr. Robinson's DNA or anybody
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  Speaker 1: else's DNA was found on any of the items that
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  Speaker 1: they tested. And so it simply is not the case
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  Speaker 1: that the court can leap to the conclusion based on
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  Speaker 1: the evidence as opposed to speculation that Mr. Robinson's DNA
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  Speaker 1: was all over the weapon or the screwdriver used or
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  Speaker 1: anything else. Again, the experts spoke possibilities, not probabilities, and
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  Speaker 1: certainly not in any way, saying that they could identify
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  Speaker 1: DNA as coming from anybody, Mr. Robinson, or anybody else,
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  Speaker 1: in the case. In terms of the firearm and Dremel testing, Mr.
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  Speaker 1: McBride said that the determination was made that the Dremel
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  Speaker 1: tool made markings on the cartridge cases. Again, he's attempting
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  Speaker 1: a source attribution there. And it's true that Ms. Karner's
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  Speaker 1: report reads that way. But it also says the conclusions
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  Speaker 1: she's reaching were made in compliance with DOJ policy, which
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  Speaker 1: in her case was the Karner Exhibit 11. And that policy,
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  Speaker 1: like the DOJ's policy on DNA evidence, says that an
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  Speaker 1: examiner based on the science cannot identify a tool mark
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  Speaker 1: as having made a particular mark on a cartridge case
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  Speaker 1: as coming from a particular weapon. And she was clear
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  Speaker 1: that she subscribed to the policy and was doing so
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  Speaker 1: in the case. He also said that Mr. McBride, that
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  Speaker 1: the bullet was consistent with the rifle that they're trying
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  Speaker 1: to connect to Mr. Robinson. And actually what Ms. Karner
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  Speaker 1: testified was that, and this is page 177, there were
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  Speaker 1: several different. 30 caliber class firearms that could have fired
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  Speaker 1: this bullet. And at page 47 of Exhibit Karner No. 6,
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  Speaker 1: she lists a dozen or more firearms, including rifles and pistols,
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  Speaker 1: that she says could have fired this bullet. So again,
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  Speaker 1: the state is overreading the evidence when they say the
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  Speaker 1: court that the ballistics evidence in this case shows that
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  Speaker 1: the bullet was fired from the rifle that they want
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  Speaker 1: to connect to Mr. Robinson. There is no such evidence.
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  Speaker 1: So unless the court has any questions about the forensic evidence,
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  Speaker 1: that's all I had to say. All right, folks, we're
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  Speaker 1: going to wrap up right here. And in the next episode,
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  Speaker 1: we're going to pick back up with Mr. Novak. All
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  Speaker 1: the information that goes with this episode can be found
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  Speaker 1: in the description box.