Latest / The Epstein Chronicles / Tyler Robinson Preliminary Hearing Transcript (Day 4 Part 20) (10/21/26)

Transcript

Tyler Robinson Preliminary Hearing Transcript (Day 4 Part 20) (10/21/26) · The Epstein Chronicles

• 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 transcript from day number four of the
• 0:10
  Speaker 1: prelim hearing. And we're picking up with prosecution cross-examining Ms. Karner. Question,
• 0:18
  Speaker 1: I want to draw your attention to Plaintiff Exhibit 32,
• 0:21
  Speaker 1: thank you, while that's pulling up. And this has been published.
• 0:24
  Speaker 1: It's been approved for publication at all three levels already.
• 0:27
  Speaker 1: So we can put it on the screens. While that's
• 0:30
  Speaker 1: pulling up, I want to first ask you about the
• 0:32
  Speaker 1: entry here. The second sentence under results of examination. Exhibit
• 0:37
  Speaker 1: one rifle was test fired and found to be in
• 0:39
  Speaker 1: operable condition. Did you perform that test fire? Answer, I did, yes. Question,
• 0:45
  Speaker 1: how did you receive this firearm? Answer, I received it
• 0:48
  Speaker 1: from another physical scientist in our laboratory. Question, okay. And
• 0:52
  Speaker 1: did it have a scope on it? Answer, yes, it did. Question,
• 0:55
  Speaker 1: what did you do to determine if it was in
• 0:58
  Speaker 1: operable condition? Answer, in order to determine if the firearm
• 1:03
  Speaker 1: is in operable condition, I will find ammunition that is
• 1:06
  Speaker 1: calibrated for. In this place, it was 30-06 Springfield. Load
• 1:11
  Speaker 1: that into the firearm, and then I fired any test
• 1:14
  Speaker 1: fires into a water recovery tank. Question, okay, and why
• 1:19
  Speaker 1: did you choose a water recovery tank? Answer, the water
• 1:23
  Speaker 1: recovery tank is what's used to obtain bullet specimens. The
• 1:26
  Speaker 1: water is going to slow down the bullet from its
• 1:29
  Speaker 1: movement so that we can actually obtain the bullet and
• 1:31
  Speaker 1: it's supposed to cause minimal damage. Question, why does it
• 1:35
  Speaker 1: matter if there is minimal damage or more damage? Answer,
• 1:39
  Speaker 1: you would like minimal damage because that means that there
• 1:41
  Speaker 1: is going to be less damage on the areas that
• 1:44
  Speaker 1: you need to compare. Question, and the evidence rounds at
• 1:47
  Speaker 1: you and the bullets that you often receive in your cases,
• 1:50
  Speaker 1: are there cases where there's a lot of damage to
• 1:52
  Speaker 1: those bullets? Answer, I've received cases with lots of damaged bullets, yes. Question.
• 1:59
  Speaker 1: In this circumstance, Exhibit 1, Rifle of the Mauser, 9830-06,
• 2:04
  Speaker 1: was it an auto-loading rifle or a bolt-action? Answer. It
• 2:07
  Speaker 1: was a bolt-action rifle. Question. Exhibit 2, Cartridge Case. Let's
• 2:12
  Speaker 1: see here. If you'll turn to page 2. And we've
• 2:14
  Speaker 1: already read this line. I think defense counsel read this
• 2:18
  Speaker 1: line to you. The Exhibit 6A paragraph there, the result
• 2:22
  Speaker 1: of the comparison, was inconclusive. Could further testing be done
• 2:26
  Speaker 1: to try and see if there, if you, could come
• 2:28
  Speaker 1: to a conclusion on the round? Answer, there was no
• 2:32
  Speaker 1: further testing that I could do, no. Question, is there
• 2:35
  Speaker 1: further testing that could be done in the field? Answer,
• 2:38
  Speaker 1: there's the possibility of using a 3D system to visualize
• 2:41
  Speaker 1: the individual characteristics on the bullet. Question, do you have
• 2:45
  Speaker 1: the capability of doing that at your lab? Answer, my
• 2:49
  Speaker 1: laboratory currently does not have that capability. Question, do you
• 2:52
  Speaker 1: know if the FBI lab Has that capability? Answer, I
• 2:55
  Speaker 1: believe they do. Question, defense counsel, put up a list
• 2:59
  Speaker 1: of potential firearms that could have fired this round or
• 3:01
  Speaker 1: this bullet. Is that list comprehensive? Answer, it's not an
• 3:06
  Speaker 1: all-inclusive list. Question, and does it mean that this round?
• 3:10
  Speaker 1: I'll leave it at that actually. There's been some discussion
• 3:12
  Speaker 1: about the 6A bullet jacket fragment. Will you describe what
• 3:15
  Speaker 1: a bullet jacket is? Answer, yeah. I do have a demonstrative.
• 3:19
  Speaker 1: May I use that? Answer, do you have it with you?
• 3:22
  Speaker 1: Or question, do you have it with you? Answer, yes. Question, yes,
• 3:25
  Speaker 1: please go ahead. Answer, so this is a demonstrative of
• 3:28
  Speaker 1: a bullet. So a bullet jacket, it would refer to
• 3:31
  Speaker 1: the outside of the bullet, inside the bullet, would be
• 3:34
  Speaker 1: the lead core. So when I'm referring to the jacket,
• 3:37
  Speaker 1: it means that I've received only that outer portion. I
• 3:40
  Speaker 1: did not receive any of the lead core intact with it. Question,
• 3:44
  Speaker 1: in these circumstances, you receive bullet jacket fragment. What does
• 3:47
  Speaker 1: that mean? That it's a fragment? Answer, fragment means that
• 3:51
  Speaker 1: I don't have the entirety of the jacket. Question, and
• 3:54
  Speaker 1: can you testify as to why you don't have that entirety? Answer,
• 3:57
  Speaker 1: no I cannot. Question, and your report also says that
• 4:01
  Speaker 1: there are four lead fragments. Why would you have lead fragments? Answer,
• 4:06
  Speaker 1: so the lead fragments, the lead, would be from inside
• 4:09
  Speaker 1: of the bullet, that core. Occasionally when the bullet reaches
• 4:12
  Speaker 1: its final destination, it can split, and some of that
• 4:15
  Speaker 1: core might be pulled off of the jacket and be
• 4:18
  Speaker 1: found where it landed. Question, and would you be able
• 4:21
  Speaker 1: to gather information from those lead fragments? that could identify
• 4:24
  Speaker 1: them as coming from this particular firearm? Would you expect
• 4:27
  Speaker 1: to be able to make that comparison? Answer. I would
• 4:31
  Speaker 1: not expect to see any characteristics that would help me
• 4:33
  Speaker 1: reach a conclusion, no. Question. Why not? Answer. Because the
• 4:38
  Speaker 1: lead core is on the inside of the bullet. The
• 4:40
  Speaker 1: land and grooves are going to be impacted onto the
• 4:43
  Speaker 1: jacket or the exterior. So when it's moving down the barrel,
• 4:46
  Speaker 1: the inside is not coming into contact with the rifling whatsoever. Question.
• 4:51
  Speaker 1: In this case, do you have a verification step where
• 4:53
  Speaker 1: your work is reviewed by another analyst? Answer. We do. Yes. Question.
• 4:58
  Speaker 1: And were your conclusions in this case verified by another analyst? Answer. Yes,
• 5:02
  Speaker 1: they were. Question. Is there a potential that the testing
• 5:06
  Speaker 1: you can destroy the evidence that you're reviewing? Answer. What
• 5:09
  Speaker 1: do you mean? Question. Well, prevent it from being tested
• 5:12
  Speaker 1: in the future. Answer. No, I would not expect anything
• 5:15
  Speaker 1: that I've done to prohibit more examination in the future. No. Question.
• 5:19
  Speaker 1: But in general, you say peeled back the petals. I
• 5:22
  Speaker 1: think you said of the bullet jacket because it's so crumpled. Answer, yeah.
• 5:27
  Speaker 1: I think if anything, that lends to a better comparison process.
• 5:30
  Speaker 1: It's a very well-known practice amongst firearm and tool mark examiners.
• 5:34
  Speaker 1: Without doing an examination like that in preparation, no one's
• 5:38
  Speaker 1: able to see the marks that are needed for the
• 5:40
  Speaker 1: comparison process. Question, okay. In reaching your conclusion that you
• 5:44
  Speaker 1: did in this case, did you follow the protocols and
• 5:47
  Speaker 1: practices that are required by your position? Answer, yes, I did. Prosecution?
• 5:53
  Speaker 1: Nothing else. Judge Graff? Defense? Defense. You said a couple
• 5:58
  Speaker 1: things of interest to me. One was that your work
• 6:00
  Speaker 1: is peer-reviewed, right? There's a peer reviewer. A second reviewer? Answer,
• 6:04
  Speaker 1: it's a verification process. Question, verification process. And you know
• 6:09
  Speaker 1: in this case, we requested to produce the case file
• 6:12
  Speaker 1: from your reviewer so we could see whether it was
• 6:14
  Speaker 1: accurate or not. You're aware of that, right? Answer, I
• 6:17
  Speaker 1: am not. And the verification process does not require that
• 6:20
  Speaker 1: the verifier has case notes. Their case notes would be
• 6:24
  Speaker 1: within mine, and it's just an authored verification chart. Question. Well,
• 6:29
  Speaker 1: you wrote in a memo to Mr. McBride dated May 19th,
• 6:32
  Speaker 1: did you not? In which you said, In answer to
• 6:35
  Speaker 1: our request for the reviewer's work product that ATF laboratories
• 6:39
  Speaker 1: do not release material concerning technical reviewers or verifiers. And
• 6:44
  Speaker 1: you went on to state, did you not? that we
• 6:46
  Speaker 1: don't even release the CVs of who the reviewers are. Answer,
• 6:51
  Speaker 1: so that is not authored by me. That's our ATF
• 6:54
  Speaker 1: procedures and protocols. If that was an email that came
• 6:58
  Speaker 1: from me, I am just verbatim what our quality assurance
• 7:01
  Speaker 1: manager has said. Question, do you think science works best
• 7:05
  Speaker 1: when it works in secret? To that, the prosecution objects. Objection, objection, argumentative.
• 7:13
  Speaker 1: Judge Graff, counsel. Defense, it goes to the issue that
• 7:16
  Speaker 1: was raised on cross-examination, which is, my work was peer-reviewed.
• 7:21
  Speaker 1: So how do we evaluate the strength of that assertion
• 7:24
  Speaker 1: when they refuse to hand over to us the work
• 7:26
  Speaker 1: product of the reviewers or even identify what their credentials are?
• 7:30
  Speaker 1: That's relevant. Judge Graff, well, I'm not agreeing or disagreeing
• 7:34
  Speaker 1: with that, but the question itself was argumentative because we
• 7:38
  Speaker 1: can look at the question working in secret is, gets
• 7:41
  Speaker 1: cut off by the defense. Let me rephrase. Judge Graff, okay.
• 7:46
  Speaker 1: So I'm going to sustain the objection because of the phrasing.
• 7:49
  Speaker 1: It is inherently argumentative and it would be a question
• 7:53
  Speaker 1: that would be able to proceed in the prelim. Question, okay.
• 7:58
  Speaker 1: Do you have an opinion on whether it's scientifically defensible
• 8:01
  Speaker 1: to rely on a peer reviewer and not reveal the
• 8:03
  Speaker 1: peer reviewer's work product? Answer, I believe I understand what
• 8:07
  Speaker 1: you're asking. However, in this case, the verifier does not
• 8:10
  Speaker 1: have any work product to show. If you'd like to
• 8:13
  Speaker 1: see their CV... I cannot attest to anything about the
• 8:18
  Speaker 1: procedures of giving their information out. All I can say
• 8:21
  Speaker 1: is that they are employed at my laboratory. They're under
• 8:24
  Speaker 1: the same scrutiny of proficiency testing, went through the same
• 8:27
  Speaker 1: training with competency and practical exercises, so they are trained
• 8:31
  Speaker 1: and competent examiners. Question. They don't have any work product
• 8:35
  Speaker 1: to show, but your protocol calls for, does it not,
• 8:38
  Speaker 1: documentation of whatever it is they did? Answer. And that
• 8:42
  Speaker 1: is included in my case file. Question. Right. but not
• 8:45
  Speaker 1: reviewers' work product? Answer. The reviewers' work product is a
• 8:49
  Speaker 1: verification sheet. If you'd like, I can refer to my
• 8:52
  Speaker 1: case notes and find that specific page number. But that
• 8:55
  Speaker 1: would be the only work product that they would have
• 8:58
  Speaker 1: in the case. Answer. I see. Or question. I see. Now,
• 9:01
  Speaker 1: you said two things about PCAST report on cross-examination. One
• 9:05
  Speaker 1: was that, if I understood it, that the PCAST findings
• 9:09
  Speaker 1: have been addressed in subsequent studies. Did I hear that correctly? Answer.
• 9:13
  Speaker 1: Because one of the recommendations was to further, actually, I
• 9:17
  Speaker 1: think the recommendation was one more black box study to
• 9:20
  Speaker 1: show the foundational validity of firearm and tool mark examination.
• 9:25
  Speaker 1: And since 2016, several have been published. Question alright, let's
• 9:30
  Speaker 1: look at that for a second. First of all, they
• 9:32
  Speaker 1: didn't recommend, they found, did they not, PCAST finds that
• 9:35
  Speaker 1: firearms analysis... currently fall short of the criteria for foundational
• 9:40
  Speaker 1: validity because there is only a single appropriately designed study
• 9:44
  Speaker 1: to measure validity and estimate reliability. The scientific criteria for
• 9:49
  Speaker 1: foundational validity requires more than one such study to demonstrate reproducibility.
• 9:55
  Speaker 1: Isn't that what they found? Answer, that is what their
• 9:57
  Speaker 1: finding was correct. Question, okay. And then after that report
• 10:02
  Speaker 1: was published in 2017, they came out with a second
• 10:05
  Speaker 1: report because people said, oh, the literature already exists. You
• 10:09
  Speaker 1: missed it. And they said, no, that's not true. Isn't
• 10:12
  Speaker 1: that right? Answer, they concluded, to that there is an
• 10:16
  Speaker 1: objection by the prosecution. Relevance to prelim hearing. We're now
• 10:21
  Speaker 1: well into 702 argument. Defense, he raised this issue on cross,
• 10:25
  Speaker 1: your honor. He clearly went beyond the 2009 reference that
• 10:28
  Speaker 1: the court allowed and opened this area up. And I
• 10:31
  Speaker 1: don't think it's fair for him to be allowed to
• 10:33
  Speaker 1: do that without me being able to respond to it.
• 10:36
  Speaker 1: Judge Graff, thank you. On cross-examination, that door was opened
• 10:40
  Speaker 1: by the state. So, I will allow a limited questioning
• 10:44
  Speaker 1: on recross or redirect. However, we want to label this,
• 10:48
  Speaker 1: so you may proceed. Defense, thank you. Judge Graff, the
• 10:51
  Speaker 1: objection is overruled. Question, in 2017, they filed a second
• 10:57
  Speaker 1: report responding to assertion by people in your profession and
• 11:00
  Speaker 1: others that they had missed or the studies had already
• 11:04
  Speaker 1: been done. Isn't that true? Answer, yes. PCAST did a
• 11:08
  Speaker 1: 2017 addendum to their 2016 report reiterating that they believe
• 11:13
  Speaker 1: that the only way to properly empirically test the science
• 11:17
  Speaker 1: is through these black box studies that they would not
• 11:20
  Speaker 1: take into consideration the numerous amount of work and validation
• 11:24
  Speaker 1: studies done over decades that the firearm community has published. Question,
• 11:29
  Speaker 1: and a bunch of other studies were done, right? Answer, correct. Question,
• 11:33
  Speaker 1: and in response to those additional studies, there have been
• 11:36
  Speaker 1: continual criticisms of the methodologies of those studies. Isn't that fair? Answer, yes. Question,
• 11:43
  Speaker 1: and you've read, for instance, well, first of all, you attended,
• 11:46
  Speaker 1: I see a webinar by the group that did some
• 11:48
  Speaker 1: of the critiques, remember that? Answer, which webinar are you
• 11:51
  Speaker 1: referring to? Answer, you attended a webinar, I believe, in 2023,
• 11:56
  Speaker 1: Treatment of Inconclusive Results and Error Rates of Firearm Studies
• 12:00
  Speaker 1: webinar hosted by the Center of Statistics and Applications in
• 12:04
  Speaker 1: Forensic Evidence, 2021. Answer, correct, I did. Question, according to you,
• 12:10
  Speaker 1: the group has published a number of studies right up
• 12:12
  Speaker 1: to the 2026, for instance, their study in 2024, called
• 12:16
  Speaker 1: methodological problems in every black box study of forensic firearm comparisons,
• 12:21
  Speaker 1: in which they concluded that the field was not reliable
• 12:24
  Speaker 1: despite the studies that you referenced. Isn't that true? Answer,
• 12:29
  Speaker 1: that's the author's opinion, correct. Question, right. But they're not
• 12:32
  Speaker 1: the only ones. There have been other groups of statisticians
• 12:36
  Speaker 1: who had published articles right up to 2026 saying that
• 12:39
  Speaker 1: the studies that you referenced are unreliable. Answer, yes. Question,
• 12:44
  Speaker 1: that their methodology of those studies is flawed and cannot
• 12:47
  Speaker 1: be relied upon to support the science of tool mark comparison, correct? Answer, yes.
• 12:52
  Speaker 1: There have been studies to say that they believe that
• 12:55
  Speaker 1: there is flaws in the black box studies and stuff,
• 12:58
  Speaker 1: but there has also been plenty of research done to
• 13:00
  Speaker 1: say the opposite. Question, and lastly, you mentioned that, or
• 13:04
  Speaker 1: it was brought out, that you have training and experience, right? Answer, correct, yes. Question,
• 13:09
  Speaker 1: do you agree with the conclusion stated in the section
• 13:11
  Speaker 1: of the report, the PCAP report, that neither experience nor
• 13:16
  Speaker 1: professional practices can substitute for foundational validity. Do you agree
• 13:20
  Speaker 1: with that? Answer, I do, yes. Question, you agree with
• 13:24
  Speaker 1: the conclusion reached in the PCAP report that a forensic
• 13:27
  Speaker 1: science discipline that has an error rate higher than 5%
• 13:31
  Speaker 1: is not reliable? Answer, I don't know that I have
• 13:34
  Speaker 1: an opinion to that because I think it's a little
• 13:36
  Speaker 1: on the broad side. I don't know what you would
• 13:39
  Speaker 1: consider high as far as the percentage. Question, well, I'm
• 13:42
  Speaker 1: referring to the statement on page 151, where they say
• 13:45
  Speaker 1: methods with a higher false positive rate are scientifically unreliable
• 13:49
  Speaker 1: for making important judgments in court about the source of
• 13:52
  Speaker 1: a sample. To be considered reliable, the false positive rate
• 13:56
  Speaker 1: should certainly be less than 5%, and it may be
• 13:59
  Speaker 1: appropriate that it be considerably lower depending on the intended application. Answer,
• 14:04
  Speaker 1: I would agree with that statement. Question, you would agree
• 14:07
  Speaker 1: with that. And you lastly referenced your knowledge of of
• 14:11
  Speaker 1: the study by the AFTE of that proficiency, the one
• 14:14
  Speaker 1: proficiency test, which you have taken on bullet comparisons, correct? Answer, correct. Question,
• 14:20
  Speaker 1: and in the error rate in the particular study proficiency
• 14:23
  Speaker 1: test was 20.4%, correct? Answer, correct. Question, item 2, 18.2%
• 14:28
  Speaker 1: for item 3 and 18.9% for item 5. Answer, I
• 14:30
  Speaker 1: believe those were the results. However, I don't agree that
• 14:38
  Speaker 1: proficiency tests are what are used for validation studies to
• 14:42
  Speaker 1: show foundational validity. Question, so if the error rates are
• 14:47
  Speaker 1: so high, then they shouldn't be relied upon to show invalidity,
• 14:52
  Speaker 1: but they should be relied upon to establish that your
• 14:54
  Speaker 1: experience means that your science is valid. Is that what
• 14:57
  Speaker 1: you're saying? Answer, foundational studies are looking at, just as PCAST,
• 15:03
  Speaker 1: Those black box studies, different test design, all of which
• 15:06
  Speaker 1: firearm and tool mark community has conducted. We've looked at
• 15:09
  Speaker 1: cartridge cases, bullet, pristine samples, damage samples, and different firearms.
• 15:15
  Speaker 1: Proficiency test is looking at the accuracy of an examiner's results,
• 15:19
  Speaker 1: not foundational validity. Question, but you would agree that an
• 15:24
  Speaker 1: error rate of 20% is unacceptable. Would establish unreliability, correct? Answer,
• 15:29
  Speaker 1: I would agree that those results Need to be looked
• 15:32
  Speaker 1: at to see where the error was coming from. Answer, right. Okay,
• 15:36
  Speaker 1: thank you. Judge Graff, thank you. Anything further for this witness? Prosecution, yes.
• 15:42
  Speaker 1: Judge Graff, all right, Mr. McBride. I'm going to limit
• 15:45
  Speaker 1: you because your objection to going outside and going to 702,
• 15:48
  Speaker 1: you opened the door. But I've got to close that
• 15:51
  Speaker 1: door at some point, so I'll give you a limited
• 15:53
  Speaker 1: number of questions. We need to come to a close. Question,
• 15:58
  Speaker 1: I understand that. Your science has been accepted by the
• 16:01
  Speaker 1: courts across the country, correct? Answer. Yes. Question. It's routinely
• 16:05
  Speaker 1: admitted in courts across the country, correct? Answer. That is correct. Yes. Question.
• 16:10
  Speaker 1: Your science has been peer-reviewed and viewed favorably by numerous
• 16:13
  Speaker 1: publications and studies across the country and across the world, correct? Answer. Correct. Yes. Prosecution.
• 16:21
  Speaker 1: No more questions. Judge Graff. All right. May this witness
• 16:24
  Speaker 1: be excused? Thank you. Ma'am, thank you for being here.
• 16:28
  Speaker 1: You're excused. All right, that brings us to a close.
• 16:32
  Speaker 1: Do either party wish to benefit the record before we
• 16:34
  Speaker 1: adjourn for the night? Defense, Kathy Nestor, Your Honor, can
• 16:39
  Speaker 1: you give us just about five minutes, and then I
• 16:41
  Speaker 1: think we can make an announcement. Can you just give
• 16:43
  Speaker 1: us a minute to chat? Judge Graff, yeah, you may
• 16:46
  Speaker 1: have that, and we'll stay in court for these five
• 16:48
  Speaker 1: minutes just because it would take longer to let everyone
• 16:50
  Speaker 1: go and then come back in. We're on and we're live,
• 16:54
  Speaker 1: so court's back in session. All the parties are present
• 16:56
  Speaker 1: except for maybe one attorney. Should we wait for counsel? Prosecution.
• 17:03
  Speaker 1: Take maybe 30 seconds to wait for Mr. McBride. Judge Graff.
• 17:06
  Speaker 1: All right. We'll wait for Mr. McBride. Comes in and
• 17:10
  Speaker 1: turning to Miss Nestor. Miss Nestor. Thank you, Your Honor.
• 17:13
  Speaker 1: Your Honor. We have just one more witness who would
• 17:16
  Speaker 1: be fairly short witness, not super long. So I anticipate
• 17:19
  Speaker 1: we'll be done tomorrow, probably by lunch, I would think.
• 17:22
  Speaker 1: So maybe if we could plan that, that will be finished.
• 17:24
  Speaker 1: We probably will need the entire day tomorrow is my suggestion.
• 17:29
  Speaker 1: Judge Graff, thank you. All right. Turning to the state. Obviously,
• 17:32
  Speaker 1: I'm not holding you to your answer today, but just
• 17:34
  Speaker 1: for guidance, does the state anticipate rebuttal witnesses? Prosecution judge,
• 17:40
  Speaker 1: we don't anticipate any rebuttal evidence that needs to be
• 17:42
  Speaker 1: presented to this hearing. So I think the question would be,
• 17:46
  Speaker 1: is are we going to argue the bind over tomorrow?
• 17:48
  Speaker 1: And the state would be prepared to argue the bind
• 17:50
  Speaker 1: over tomorrow. Judge Graff, all right. Well, I appreciate that
• 17:54
  Speaker 1: in regards to trying to budget time here. How much
• 17:56
  Speaker 1: time does the state anticipate? Obviously, there's one more witness. Answer, prosecution.
• 18:03
  Speaker 1: If it's a short witness, judge, I don't think it
• 18:05
  Speaker 1: should take us the entire morning, but we should be
• 18:07
  Speaker 1: prepared to argue tomorrow morning at the close of evidence
• 18:10
  Speaker 1: or first thing in the afternoon. Judge Graff, and how
• 18:13
  Speaker 1: much time do you anticipate that argument being? Again, a
• 18:16
  Speaker 1: rough estimate. I'm not holding you to the exact number.
• 18:19
  Speaker 1: I'm just trying to see how close are we to
• 18:21
  Speaker 1: the five o'clock Because I'm going to ask the defense
• 18:23
  Speaker 1: the same questions as well. Prosecution. I wouldn't come close
• 18:27
  Speaker 1: to the five o'clock hour, Judge. Judge Graff, for just
• 18:31
  Speaker 1: you or for both? Prosecution for the argument? Judge Graff, yes. Prosecution,
• 18:36
  Speaker 1: both of us. Judge Graff, all right. Well, I'll turn to.
• 18:39
  Speaker 1: He gets interrupted by prosecution. If we have to argue
• 18:42
  Speaker 1: two hours apiece for a bind over, there's a problem.
• 18:45
  Speaker 1: Judge Graff, all right. Thank you. Judge Graff, to the
• 18:48
  Speaker 1: defense again. I'm just getting an estimate. I'm not holding you.
• 18:52
  Speaker 1: I'm not going to time you to this, but I'm
• 18:54
  Speaker 1: just trying to see as it relates to 5 o'clock
• 18:57
  Speaker 1: and for argument for bind over tomorrow afternoon. Defense understood,
• 19:01
  Speaker 1: Your Honor. Our request, the defense request, is that we
• 19:04
  Speaker 1: be allowed to submit briefing. There are some legal issues
• 19:07
  Speaker 1: that we would like to brief for the court prior
• 19:09
  Speaker 1: to the decision on the bind over. We're open to
• 19:12
  Speaker 1: briefing page limits, time limits, all of that, but we
• 19:14
  Speaker 1: would like to have the opportunity because there are some
• 19:17
  Speaker 1: legal complexities involved here. Judge Graff, all right. I'm going
• 19:20
  Speaker 1: to ask the state, but if the state, well, I'm
• 19:22
  Speaker 1: not going to assume anything, thank you. I believe the
• 19:25
  Speaker 1: state is going to object to that, Your Honor. Judge Graff,
• 19:29
  Speaker 1: so what I hear you saying is you wish to, well,
• 19:31
  Speaker 1: I don't want to assume what it seems like you're saying,
• 19:34
  Speaker 1: and I want to be clear, is you're waiving oral
• 19:36
  Speaker 1: argument and just doing briefing? Defense, so generally, Your Honor,
• 19:40
  Speaker 1: in cases with multiple counts that are pretty complex issues
• 19:44
  Speaker 1: of law, I have asked for a briefing and the
• 19:46
  Speaker 1: opportunity for an argument. We can set time limits on
• 19:49
  Speaker 1: that as well as prior to bind over. I've done
• 19:52
  Speaker 1: this in multiple other cases before courts in Utah, and
• 19:55
  Speaker 1: that's my preference to make sure we get the law right.
• 19:57
  Speaker 1: Judge Graff, and how much time are you asking for
• 20:00
  Speaker 1: arguments that in addition to briefing, I'm trying to get
• 20:03
  Speaker 1: a total universe of what's in front of me? Prosecution,
• 20:06
  Speaker 1: or excuse me, defense, So I anticipate that, and I
• 20:09
  Speaker 1: agree with the prosecution, and I don't think an argument
• 20:12
  Speaker 1: would take more than a half day. Should take less
• 20:14
  Speaker 1: than that, particularly if we're briefly or briefing issues beforehand. So,
• 20:19
  Speaker 1: I don't know, two hours for argumental total? Answer, all right,
• 20:22
  Speaker 1: thank you, Ms. Visser. Turning back to the state, you've
• 20:25
  Speaker 1: heard from the defense. Prosecution, again, Judge, the state would
• 20:30
  Speaker 1: prefer to argue tomorrow. We think the court has all
• 20:33
  Speaker 1: the evidence before it, and can make a bandover decision
• 20:36
  Speaker 1: after oral argument tomorrow. If the court decides that briefing
• 20:39
  Speaker 1: is necessary, I believe the court reporter could have the
• 20:42
  Speaker 1: transcript available as early as Monday of next week on
• 20:45
  Speaker 1: an expedited request. With that said, each side would need
• 20:49
  Speaker 1: two weeks to, where the moving party, we would prepare
• 20:52
  Speaker 1: a motion in support of a bandover. There would be
• 20:54
  Speaker 1: a response and then a reply. So we're probably six
• 20:57
  Speaker 1: weeks out before we can actually argue before a bandover.
• 21:00
  Speaker 1: We would rather not wait six weeks to argue bandover.
• 21:04
  Speaker 1: That's why we would like to do it tomorrow. But
• 21:06
  Speaker 1: that's the timeline we're probably looking at is about six
• 21:09
  Speaker 1: weeks and then two to three hours of argument. Judge Graff,
• 21:13
  Speaker 1: so you're requesting to move forward with oral argument tomorrow
• 21:15
  Speaker 1: in addition to briefing? Again, I'm just trying to see
• 21:18
  Speaker 1: the whole universe that's before me. Prosecution, good question, Judge.
• 21:22
  Speaker 1: If the court wants a briefing, I don't believe we
• 21:24
  Speaker 1: would argue tomorrow. Judge Graff, I see. Prosecution, we would
• 21:28
  Speaker 1: save that argument until the briefing's finished. Judge Graff, all right,
• 21:32
  Speaker 1: thank you. And to the defense, would you agree on
• 21:34
  Speaker 1: the timeframe for briefing as been proposed by the prosecution
• 21:39
  Speaker 1: to allow each side the appropriate time taking in consideration
• 21:42
  Speaker 1: a transcript which may or may not be needed to
• 21:45
  Speaker 1: the parties? Defense, we are also okay with a simultaneous
• 21:49
  Speaker 1: briefing in this if the state prefers that. That wouldn't
• 21:52
  Speaker 1: take six weeks if that's a concern, but we have
• 21:54
  Speaker 1: no objection to the six weeks. Judge Graff, all right,
• 21:58
  Speaker 1: and does your client waive any speedy trial rights? That
• 22:00
  Speaker 1: may result as this request. I just want to make
• 22:02
  Speaker 1: sure I'm addressing constitutional rights. I'm going to be addressing
• 22:06
  Speaker 1: them from the victim representative. This goes squarely into the
• 22:09
  Speaker 1: victim's rights to speedy disposition. So again, I'm just trying
• 22:12
  Speaker 1: to take it. And I know we're late. I just
• 22:14
  Speaker 1: want to cover all these bases. Defense. Yes, our client
• 22:19
  Speaker 1: will waive his right, his speedy trial right, so that
• 22:22
  Speaker 1: we can properly brief the prelim hearing issues. Judge Graff,
• 22:25
  Speaker 1: all right to the state. Prosecution. If the court wants briefing,
• 22:29
  Speaker 1: we would do not like to do simultaneous briefings. We
• 22:33
  Speaker 1: would like to start it out as a moving party.
• 22:35
  Speaker 1: The defense would then respond. We would then have the
• 22:37
  Speaker 1: opportunity to reply before oral argument. Judge Graff, all right,
• 22:41
  Speaker 1: and I'll invite Ms. Kirk's attorney if he wishes to
• 22:43
  Speaker 1: be heard. This goes squarely into the victim's rights, as
• 22:46
  Speaker 1: recognized in the Utah Constitution, as well as the Utah statute,
• 22:51
  Speaker 1: as it's what's before us. Jeffrey Neiman, the lawyer for
• 22:55
  Speaker 1: the Kirks. Your Honor, obviously we want swift justice for
• 22:58
  Speaker 1: Charlie here. I think we obviously know the court needs
• 23:01
  Speaker 1: to make sure they're balancing all interests here, but I
• 23:04
  Speaker 1: think as soon as the matter could be bound over
• 23:06
  Speaker 1: and this matter could be set for trial, that's what
• 23:08
  Speaker 1: the Kirk family would like. Your Honor, I'm hesitant to
• 23:13
  Speaker 1: weigh in on the briefing. I feel as if that's
• 23:15
  Speaker 1: a decision which the court should decide whether or not
• 23:18
  Speaker 1: it's necessary, and we're going to take no position on
• 23:20
  Speaker 1: the briefing. We ask for speed. This has been 10
• 23:23
  Speaker 1: months coming. We've heard a lot of evidence, to me
• 23:26
  Speaker 1: it seems, rather overwhelming, but that's my opinion. Obviously it
• 23:29
  Speaker 1: doesn't matter, so we're just asking to move quickly. Judge Graff,
• 23:33
  Speaker 1: thank you, all right. Having heard from the parties, I'll
• 23:36
  Speaker 1: go ahead and allow, well, I'm granting the request for
• 23:38
  Speaker 1: briefing as it relates to probable cause, to allow both
• 23:41
  Speaker 1: parties to file the briefs. With defense, as you're a
• 23:44
  Speaker 1: moving party requesting briefing, when would you like to submit
• 23:47
  Speaker 1: your brief, or to the state? The state? Judge, because
• 23:51
  Speaker 1: we have the burden, I believe it's appropriate for us
• 23:53
  Speaker 1: to initiate the briefing. Judge Graff, okay. Prosecution, because we're
• 23:57
  Speaker 1: moving for the bind over, and then we would want
• 23:59
  Speaker 1: to have an opportunity to reply. Judge Graff, okay. So
• 24:04
  Speaker 1: let's start, Mr. Grunelder. When can you have a brief filed? Prosecution,
• 24:08
  Speaker 1: just a moment, Judge. Judge Graff, thank you. And going
• 24:11
  Speaker 1: to the defense, well, I'll follow up with you as well. Defense,
• 24:15
  Speaker 1: thank you. Back to the prosecution. Judge, if we're able
• 24:19
  Speaker 1: to collect the transcript Monday, if we had two weeks
• 24:21
  Speaker 1: from Tuesday, we could have our motion in, I believe,
• 24:24
  Speaker 1: that's the 28th of July. Judge Graff, all right, so
• 24:27
  Speaker 1: state's brief by the 28th of July. Assuming that they
• 24:30
  Speaker 1: can get the transcript by Monday, all right, state's brief
• 24:33
  Speaker 1: to the defense. Defense, we need two weeks after that,
• 24:36
  Speaker 1: so August 11th, I believe, is two weeks. Judge Graff,
• 24:39
  Speaker 1: all right, and to the state, if you wish to
• 24:41
  Speaker 1: file a reply, state, it would be seven days after that, judge.
• 24:47
  Speaker 1: Judge Graff, August 18th. All right. And for oral argument,
• 24:51
  Speaker 1: what I can set is September 1st in the morning.
• 24:54
  Speaker 1: Let me take a quick glance here at the calendar.
• 24:56
  Speaker 1: I'm trying to keep that close in time so that
• 24:58
  Speaker 1: we can move this along for all reasons previously stated.
• 25:01
  Speaker 1: And we can start at 10 a.m. 10 a.m. on
• 25:03
  Speaker 1: September 1st. How does that look for the parties? That
• 25:07
  Speaker 1: worked for the state. Miss Nestor, Your Honor, I'm going
• 25:10
  Speaker 1: to be in trial tomorrow. that week, and I'd really
• 25:12
  Speaker 1: like to be here for this argument. Is there any
• 25:14
  Speaker 1: way we could do it next week? Judge Graff, well,
• 25:17
  Speaker 1: the problem is I'm happy to look, but it would
• 25:18
  Speaker 1: be very tricky. Judge Graff, all right, we will go
• 25:21
  Speaker 1: with 18. So 35 pages for the initial filings, 18
• 25:25
  Speaker 1: for the response, and September 1st at 10 a.m. Judge Graff,
• 25:29
  Speaker 1: thank you. I appreciate you making that record. I note
• 25:31
  Speaker 1: the standing objection. That objection as it relates to this
• 25:34
  Speaker 1: request is overruled. That'll be played at the conclusion of
• 25:38
  Speaker 1: defense presentation of evidence. And before the state, if they
• 25:42
  Speaker 1: do have a rebuttal witness, please remind me so that
• 25:44
  Speaker 1: I can address it and that it's taken care of.
• 25:47
  Speaker 1: Thank you to the parties. I'm hesitant to ask this,
• 25:49
  Speaker 1: but anything further? The state, nothing from the state. Judge Graff,
• 25:54
  Speaker 1: all right. Thank you all. I appreciate your hard work today.
• 25:57
  Speaker 1: And that concludes court. We are in recess till nine
• 25:59
  Speaker 1: o'clock tomorrow morning. All the information that goes with this
• 26:03
  Speaker 1: episode can be found in the description box.