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00:01:17.000So I am really excited about this next guest because she is somebody that I've been watching online, and she's not like I've never even met her before, but she just calls balls and strikes.
00:01:59.000And, you know, I. Candidly, like sometimes I wish you would be more aggressive because I'm like, you know, I have a POV, but you are very kind of.
00:02:55.000If the state doesn't want to call the forensics examiners from the ATF andor the FBI as witnesses, we also have the right to call them as witnesses.
00:03:08.000But I can't examine those witnesses without the data.
00:03:13.000Okay, so make heads or tails for this.
00:03:16.000Is the state doing something nefarious?
00:03:21.000Well, I think where a lot of confusion is arising over this particular issue is that.
00:03:27.000From my perspective, it has far more to do with the timing of what the defense is asking for than whether they are entitled to certain items of evidence or their requests are unusual or anything like that.
00:03:40.000And so, what's an issue in this particular case is not whether the defense should be able to litigate the DNA and the testing process that has been used by various investigators, but whether they are entitled to that right now as a condition to going forward with the preliminary hearing.
00:03:58.000And so, the focus of much of that argument in the hearing on Friday was based on the limited scope and purpose of a preliminary hearing.
00:04:10.000And what goes along with that is the limited rights that the defendant has in that particular context.
00:04:17.000Due process in general is a concept that is not universal, it's very much defined by the nature of the proceeding and the risks involved.
00:04:28.000And so, because a preliminary hearing is Really, just there to sort out cases that shouldn't have been filed in the first place, that are so lacking in evidentiary basis that the defendant shouldn't be required to go through the expense and stress and so forth to defend himself at a trial.
00:04:48.000Because that's the limited purpose, the rights that go along with that purpose are similarly limited.
00:04:54.000And so Utah has a bunch of rules about the extent to which the defendant is entitled to discovery before going forward with the preliminary hearing and the way that the court processes the evidence that it hears at the preliminary hearing and so forth.
00:05:13.000And so, because of that, where I think there is kind of some conflation that's going on here.
00:05:20.000Is whether it's unrealistic for the defendant to be asking for this information, period, versus whether we're really just talking about a question of timing and the kind of ordinary course of discovery that leads up to being able to more fully flesh out these particular types of issues at trial.
00:05:41.000So, Andrea, are you saying that it's not unusual for them to want the underlying data for this DNA testing?
00:05:47.000You're just saying that based on Utah law and the fact this is a limited scope pre trial hearing.
00:05:53.000That the state is not required to at this point.
00:05:56.000So it wouldn't be unusual that they haven't turned this over at this point.
00:06:00.000I think that's a very fair description of what is going on.
00:06:03.000These issues with DNA evidence really are fascinating and are kind of on the cutting edge of just the intersection between courts and science.
00:06:14.000Courts are often years, if not decades, behind the rest of the world when it comes to evaluating scientific technologies and really whether they belong in court or not.
00:06:25.000And with DNA evidence, we're talking about.
00:06:28.000Evidence that can be very complex and it can involve a lot of statistical calculations and things like that, that the defense has every right to vet.
00:06:40.000And frankly, every expectation that they'll be given the opportunity to do that, especially given the circumstances here where we're talking about a capital case.
00:06:52.000But again, that's just not the same thing as saying they have a right to do that right now in the context of this particular hearing.
00:07:02.000In the Friday arguments, the defense had referenced distinctions between what they perceived as quote unquote Daubert issues and material that they, in their opinion, thought was necessary to go forward with the preliminary examination.
00:07:21.000But so the Daubert hearing is a legalese reference to a type of hearing that challenges the fundamental scientific reliability of some of the state's evidence.
00:07:33.000So, I'm absolutely anticipating we're going to have Dobbert hearings in this case, probably not just on the DNA, but on some other scientific issues as well.
00:07:43.000But that is the type of issue that takes place much further down the road and closer to trial.
00:07:49.000So, I think that's what you're saying here is getting at the heart of what I think makes a lot of observers who don't normally watch the courts much that makes this whole thing feel odd to them.
00:07:58.000You're mentioning this is reasonable, but it's so early in the process.
00:08:02.000This is in the lead up to the preliminary hearing.
00:08:05.000The murder of Charlie happened seven months ago.
00:08:09.000And you, as an experienced attorney, is it normal, whether in Utah or just across the country, for a case of this nature to take this long to get to a preliminary hearing?
00:08:22.000Is this something that's become more common over time?
00:08:25.000Like maybe courts have slowed down a lot since COVID or something?
00:08:29.000Help us, for those of you who aren't professionals, how normal is the situation we're seeing unfold here?
00:08:35.000So far, there's nothing about the timeframes that strike me as extraordinary.
00:08:40.000In some of the legal documents that have been filed in the case, the defense has pointed to other cases in Idaho, capital cases, that involved even longer timeframes to get to the preliminary hearing.
00:08:54.000So, in and of itself, that's not unusual.
00:08:56.000And anytime you're dealing with a capital case, you're always dealing with a process where the parties are going to be so much more careful, not just because of how much is at stake.
00:09:07.000But because everybody is already anticipating down the road the possibility of challenges on appeal in a post conviction context, in a habeas corpus context in federal court.
00:09:19.000And so it's really important to kind of clear the field of potential challenges in a case like this, because nobody wants to come back and do it over again.
00:09:30.000And so the thoroughness of the process is very much a concern for all of the participants, but it is very normal for folks who.
00:09:41.000Haven't watched a lot of criminal cases, or, you know, I think a lot of people that were affected by Charlie's death are interested in this case.
00:09:50.000And it's one of the things that is kind of a silver lining, I suppose, if you can look at it, is because the criminal courts are such an important part of the government in this country, so much power and influence over people's lives.
00:10:09.000And yet it's often Kind of underexamined relative to what's going on in the legislature, what governors are doing and executive actions and so forth.
00:10:20.000So, this is a real opportunity for a shift for people to learn more about what is such a fundamental aspect of how justice is done in our day to day communities that we participate in.
00:10:33.000And so, to the extent this case is going to provide that learning opportunity, I'm grateful that I'm having the opportunity to share some of my experience and help people.
00:10:59.000Has the defense reviewed all the discovery that has been presented up until this point in preparation for a preliminary hearing set for next month?
00:11:08.000If the court is saying, have you reviewed the thousands, have the lawyers reviewed the thousands and thousands and thousands of pages of discovery?
00:11:17.000That are well documented in the index that Mr. McBride provided the court privately?
00:11:36.000The defense admits that they haven't reviewed all the documents they have, but yet they want more and they're requesting a six month delay, which, Andrew, you can imagine if you're on our side of this, feels like an eternity.
00:11:51.000Well, I think it's normal for them to make the ask, but as far as the expectation of getting it, it seems that their prospects are probably pretty low.
00:12:01.000This is both based on the legal arguments that were presented themselves.
00:12:06.000The state seems to pretty clearly have the strong side of the legal argument, but also potentially by some of the comments that the judge had made during the hearing.
00:12:18.000You don't always want to read too much into those, but you can sometimes get a little sense of how the judge is thinking about the issue.
00:12:26.000And he does seem to be persuaded by the argument the state made that because this is such a limited scope hearing, There's no necessity for the defense to be able to do the type of investigation that they're requesting to do before the preliminary hearing.
00:12:42.000As far as not having the opportunity to review the discovery, this is life as a public defender.
00:12:48.000They're dealing with a volume of data that is extraordinary.
00:12:53.000We've heard various estimates throughout the court process 200 plus terabytes of video data just from the UVU campus, 24 terabytes of data just from extractions from different.
00:13:07.000Devices, meaning cell phones, computers, things of that nature.
00:13:12.000And that's above and beyond reports and analyses, interviews, and so forth that have been conducted by hundreds of law enforcement officers and dozens of different agencies.
00:13:24.000So it is a massive volume of information to process and.
00:13:28.000That is just kind of part of the life of being a public defender.
00:13:33.000We saw, I followed also very closely the Brian Koberger case, which has come up many times, kind of by analogy, in this proceeding.
00:13:43.000And in the Brian Koberger case, there were years of pretrial proceedings leading up to the trial that ultimately didn't happen, but we were getting close to that point in time.
00:13:55.000And the defense is still at that point having a very difficult time.
00:14:00.000Being able to go through all of the information that's handed over.
00:14:04.000So, having a high volume of information to process, not at all unusual.
00:14:09.000Defense lawyers, particularly ones with the degree and type of experience, as many of these team members do, I call Richard Novak and Michael Burt in particular, some of the most qualified capital defense attorneys in the entire country.
00:14:25.000They're accustomed to evaluating what they have and prioritizing what needs the most attention and what doesn't.
00:14:32.000So, it's certainly not a perfect system for all kinds of different reasons.
00:14:37.000But these particular issues with just needing more time, more hours in the day, these are kind of universal and they persist throughout the process.
00:14:47.000So, there's been another issue raised, Andrea, you know, when it comes to this constitutional right to a speedy trial, right?
00:14:55.000That's supposed to be for the defendant, not for the victims of, or the family members of the victim.
00:15:01.000In this case, it would be like Erica, for example.
00:15:03.000So, I'm going to play a cut here and get your reaction to it.
00:15:08.000So, how do you propose the court balance your request for a potentially large, a long delay against the constitutional rights of victim representative Ms. Kirk in her right to a speedy disposition of the case?
00:15:25.000So, Andrea, who has a right to a speedy disposition of the case?
00:15:29.000So, in Utah, both the defendant and the victim have a right to a speedy disposition.
00:15:37.000Speedy trial rights are guaranteed to criminal defendants under the United States Constitution, but a variety of different states have enacted protections for victims, either through statute or as Utah has done by constitutional amendment.
00:15:56.000These rights typically include things like rights to notice, rights to participate and be heard.
00:16:03.000And in the case of Utah, they have provided victims with rights to a speedy trial.
00:16:09.000And so, what that means as a practical matter, the way that it works in Utah, it doesn't give the victim the right to trump the defendant's ability to prepare for trial or anything like that.
00:16:20.000But what it does do is it indicates that a continuance, If the victim has invoked the right to a speedy trial, then a continuance has to be necessary.
00:16:31.000The court can't just rubber stamp the parties continuing to kick the can down the road, even if they agree to do that, just because they kind of want to or it's more convenient or something like that.
00:16:42.000There needs to be a justification for it because Utah courts have recognized that for cases to linger, this does have significant effects on the victims of crimes.
00:16:54.000It prevents the victim from being able to.
00:17:01.000This is particularly the case with somebody like Erica, who is a public figure who normally would speak about issues like this and the process and stuff like that.
00:17:15.000But because there is this trial that's pending and the risk that comments made outside of court could potentially taint the jury pool, there's a Strong incentive to be quiet and not talk about these types of things.
00:17:32.000Andrea, can we pause just on that point?
00:17:34.000It's such an important point you just made.
00:17:38.000And I think, you know, we've seen all these conspiracy theories.
00:17:41.000There's a huge vacuum because people like Blake and myself and Erica, we're not really permitted to speak about so much of this case because it can be brought up in court.
00:17:53.000And they, in fact, did that in this hearing on Friday.
00:17:56.000The very limited things that Erica has said was even mentioned in court.
00:18:01.000So, it's one of the reasons that I think states like Utah have this expedited, or at least the interests of the victims are represented on the state constitution level.
00:18:18.000I think some people, sort of, in their head are also inverting it that the right to a speedy trial sort of carries by implication the right to unspeedy the trial as well if they want.
00:18:32.000Almost like if you want to speed up the proceeding or if you want it to go at a regular pace, it's somehow sort of nefarious.
00:18:39.000But listen, we're looking at a trial start date, Andrea.
00:18:42.000We've only got 30 seconds left in the live show here, but we'll keep you after.
00:18:46.000And so for those of you watching, please check out the podcast.
00:18:49.000But we're thinking like January or something, right?
00:18:53.000If it doesn't get delayed another six months.
00:18:55.000So I am not expecting the preliminary hearing to be significantly delayed.
00:19:01.000Now, the trial itself, Frankly, could still be years down the road.
00:19:06.000We don't have a trial setting at this point in time.
00:19:08.000It is normal for capital cases to take a long time to prepare.
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00:20:55.000I would put the over under on early 2028.
00:21:00.000It's just the nature of capital cases.
00:21:03.000And in a case like this, as well, it's already being kind of foreshadowed that there are going to be many technical types of challenges to the evidence.
00:21:14.000And that's one of the purposes that capital litigation serves it's the vehicle where a lot of these cutting edge and critical issues involving scientific evidence and process and things like that get played out.
00:21:36.000And so, what I think that means in practical terms is that anytime you're looking at something like the defense clearly wants to challenge the statistical basis for the type of conclusions that are going to be presented vis a vis the DNA samples.
00:21:56.000This is a particularly complicated issue from a scientific standpoint because we know from some of the court.
00:22:06.000Presentations that we are dealing with at least some mixtures.
00:22:10.000And so interpreting DNA mixtures is a complicated statistical question.
00:22:17.000And so it's very reasonable for, from my perspective, for the defense, particularly in a capital case, to be wanting to examine that extremely closely and challenge, if the evidence justifies, some aspects perhaps of the state's.
00:22:37.000Testing process or their analysis and their conclusions.
00:22:42.000But that type of thing does not happen quickly.
00:22:44.000And that's particularly the case with the types of challenges that they seem to be teeing up here.
00:22:50.000There's a particular probabilistic genotyping program called STRMix that's commonly used to interpret mixed DNA samples.
00:23:01.000And when I say interpret mixed DNA samples, what I mean is.
00:23:06.000They can look at a mixture and figure out if a defendant can be excluded as a contributor, meaning there's no way he contributed any of the DNA that's in this mix.
00:23:17.000But if a person's DNA is included in the mix, all that means is it's consistent with this person's DNA, but we don't know how many other people it could potentially be consistent with.
00:23:27.000And so it's the significance of that inclusion that's what's at issue in evaluating well, is this evidence?
00:23:39.000If we're just talking about a match of portions of the DNA code that every person on the planet shares, then it's not at all surprising that the defendant's DNA would be included.
00:23:48.000So it's the significance that this statistical calculation is getting at.
00:23:55.000And so the defense is asking for, for example, the underlying source code for the STR mix program, a lot of the validation materials and things like that.
00:24:08.000Potentially going to require litigation because we're talking about access to third party proprietary software.
00:24:15.000Is that normal to ask for the source code of a private company?
00:24:19.000I mean, that seems like the company would not want that to be shared for proprietary business reasons, right?
00:24:26.000And the companies are not necessarily bending over backwards to volunteer this information.
00:24:33.000But yes, this is actually pretty normal for this type of litigation and these types of challenges because.
00:24:40.000It goes to establishing the underlying validity of what comes out of that computer.
00:24:48.000There's always a risk of garbage in, garbage out.
00:24:50.000And so you need to know what the computer is relying on and how it's functioning when it processes this information to know if you can trust the output from it or not.
00:25:08.000It's commonly an issue in forensic science in general because one of the factors that goes into the admissibility of scientific evidence in court involves: has it been well studied?
00:25:28.000So, with STR mix in particular, this has been a subject of litigation in many, many courts to such an extent that STR Mix now actually provides a mechanism for defendants to, defense attorneys to directly be able to access this.
00:25:44.000They don't need to go through the FBI or another agency.
00:26:00.000And it's precisely for those reasons that you mentioned.
00:26:02.000This is proprietary, it's a trade secret.
00:26:06.000And so Companies are absolutely going to want to keep as much protection of that intellectual property as they're able to do.
00:26:16.000But at the same time, recognizing there needs to be a compromise for the transparency and the assurance that what's being offered in court is in fact legitimate.
00:26:27.000And so that appears to be where the balance has been struck.
00:26:30.000Andrea, first of all, just thank you for how thorough you are on all of this.
00:26:33.000I think this has really helped explain things that have been confusing to us, to other observers who are following this.
00:26:40.000So, You predicted we won't get a trial till 2028.
00:26:45.000I think all of us here, Andrew and I, certainly both groaned as soon as we heard you say that.
00:26:52.000I think a lot of other people are feeling the same way.
00:26:54.000There's a dimension I want to get at with this.
00:26:56.000You've mentioned the reason this goes on so long is they're really being thorough in all the procedural stuff because there's so many added protections in capital cases, in murder cases, high profile cases in general.
00:27:08.000But I think one thing we're all thinking about, let's be frank, there are a lot of really bizarre, really aggravating cases.
00:27:16.000Theories, conspiracies that have emanated around this case.
00:27:19.000And when you say early 2028, my immediate thought is well, there's two years of free content for the people who have been pushing that.
00:27:28.000And I don't know if they'll push it that entire two year span, but we're at month seven of this being a full time passion of some people.
00:27:36.000And I guess what's the risk that this endless obsession from podcasters, from people on X, of pushing weird conspiracy theories, really muddying the waters around this case?
00:27:49.000Will that affect the case one way or the other?
00:27:51.000Are we going to maybe, even if we complete the trial, maybe the trial ends in a conviction, can they immediately turn around and just bring this endless legal case saying, well, this entire case was compromised by the public attention pushing weird stuff about it.
00:28:06.000And so we need to throw out the result or something?
00:28:09.000Well, you can kind of see to some extent the defense is already positioning itself to raise issues about the public commentary about this case.
00:28:20.000From the legal perspective, where this Tends to intersect with appellate issues that can generate a new trial, relate to the effect that this type of information can have on the jury pool.
00:28:33.000And so it's the longer, yes, the case goes on, and particularly cases that get a lot of attention, like this case, the more commentary is out there, the more chances there are for jurors to not just be exposed to it, but to become kind of enmeshed in it, you know, and to be influenced in their worldview by it.
00:28:56.000In the law, that you deal with these issues through jury selection, that you take care to question the jurors about what they know about the case, what sorts of opinions they have formed, their ability to remain open to new information versus having a fixed opinion.
00:29:17.000And so we can already anticipate that these are going to be issues that the defense is going to focus on in the trial.
00:29:24.000Yeah, Andrea, you mentioned that the defense is going to be focused on them, but isn't there just as much?
00:29:29.000Room for the prosecution and the state to be focused on them as well, because to Blake's point, this could taint a jury pool, right?
00:29:35.000All it takes is one juror that listens to a certain podcaster, and maybe that's the whole point.
00:29:43.000The state is going to be very concerned about this as well.
00:29:46.000And they highlighted that in Friday's hearing as well the fact that this commentary, the defense is complaining about the cameras and the potential to taint the jury pool.
00:29:56.000And the state is pointing out the commentary has not at all been uniquely favorable to the state, which From my perspective, again, as a career criminal defense attorney and a legal commentator, that's pretty unusual.
00:30:12.000Most of the time, when you get a lot of publicity about a high profile criminal case, it tends to be guilt presumptive and guilt favoring.
00:30:21.000So, both of the parties are going to be on the alert for this during the jury selection process.
00:30:26.000The court's going to be alert to it as well.
00:30:29.000When I say that the defense is setting this up, what I mean by that is that it's the defense that primarily enjoys appeal rights.
00:30:36.000And has the opportunity to challenge the process and try to seek a new trial.
00:30:42.000The state doesn't have the right to appeal an acquittal.
00:30:45.000If he were found not guilty, then that's the end of the road, the double jeopardy.
00:30:51.000Andrew, what about a hung jury, for example?
00:31:15.000And so that's a very limited set of circumstances because there has been no final decision about the merits of the case, then retrial is allowed.
00:31:24.000So they could go back in and attempt a retrial in that situation.
00:31:29.000So, the obvious question you predicted basically two and a half years to get to a trial the first time.
00:31:35.000If we got a hung jury, how long would that plausibly take to start and finish?
00:31:43.000Typically, it doesn't take nearly as long to retry a case as it does to try it in the first instance, because much of the work of preparing for the trial is already done.
00:31:52.000The discovery has been conducted, it's been closed, the witnesses have been identified, and so forth.
00:31:58.000And many of the issues that may come up surrounding what comes in at trial, if there's evidence that should be suppressed, if there's evidence that isn't admissible for scientific reasons and things like that, those decisions have already been made, and they tend not to be.
00:32:13.000To be re litigated just because one trial ended without an outcome.
00:32:19.000So, mistrial, retrial can typically occur much more quickly than the trial in the first instance.
00:32:27.000So, Andrea, I want to play this clip here because I think it was shocking for a lot of people when this was revealed in court that there was actually camera video of Tyler Robinson in the sniper's perch.
00:32:57.000He's limping because there's a rifle down his pants.
00:33:00.000The surveillance captures this individual, but he makes his way to the rooftop, makes his way to the sniper's perch on the rooftop, takes the shot, and then runs to the northeast, drops off the building, and runs to the northeast of campus into a wooded area.
00:33:19.000So, I thought this was interesting because we'd seen publicly released video of him sort of jumping off the building and then kind of, you know, in and out, ingress, egress from the venue itself.
00:33:32.000But we don't know what video that they have specifically.
00:33:36.000There's a bunch of YouTubers that have gone to the venue, to the campus, and seen where the camera angle should, in fact, be able to perceive that perch where the shot is supposed to have taken place.
00:33:50.000One question I have for you is What did you make as an outside observer of the evidence that they already have presented?
00:33:58.000And who do you think had the more, I guess, persuasive day in court on Friday?
00:34:04.000Oh, I think it's unquestionably a stronger day for the state than it was for the defense on Friday.
00:34:11.000And largely because of this proffer that the state offered of what they expected to present at the preliminary hearing, it is a Considerable volume of evidence.
00:34:23.000It is evidence that corroborates itself.
00:34:27.000And so it presents a very strong and persuasive case.
00:34:32.000Frankly, even in a trial context, if they can present what they have, we're in a pretty good position relative to many other cases.
00:34:42.000So I, being a lawyer, am familiar with the wordsmithing that lawyers often do and the ways that things can be stated or implied.
00:34:57.000I get what you're getting at there, I think.
00:35:00.000Yes, may or may not mean more than we think they do.
00:35:03.000So I personally am not inferring too much from what Mr. McBride, the prosecutor, had to say about what the video evidence. Consists of.
00:35:16.000What I can say is that he presented it in a context where he's explaining this surveillance is comprehensive over the entire campus and, you know, very extensive system.
00:35:28.000And so here's what they are going to be able to show.
00:35:32.000He's in a position where he has to be careful not to overstate what the evidence is likely to show because these guys are competing for credibility, not just in the courtroom, but also in the court of public opinion.
00:36:23.000So, and I think we'll try and make this the final kind of line of questioning.
00:36:27.000But there's been another controversy that's emerged online.
00:36:31.000And it has to do, and I've seen you post about it, but it has to do with the timing in which Tyler Robinson turned himself in, when he was Mirandaized, when he was sending out text messages to this Discord chat, when he was, you know, all of it.
00:36:45.000So the allegations, it's even hard for me to fully understand.
00:36:50.000Distill it succinctly, but that basically the timeline of the 11th and the 12th when he was arrested does not line up.
00:36:58.000That the timeline's all mixed up, and that there were comments by some of the law enforcement that contradicted that timeline.
00:37:05.000You know it better than I do, candidly.
00:37:07.000Why don't you tell us what the controversy is and what your take of what truth really is?
00:37:13.000So, first off, after Friday's hearing, and I will explain this in a little bit more detail, I believe that this theory should be put to rest.
00:37:21.000But the basic gist of it is that the official timeline that we've had for Tyler Robinson's surrender comes primarily from.
00:37:30.000Some of the references in the legal documents, but also a public interview that Sheriff Brooksby, the sheriff of Washington County, gave in a press conference where he explained that he received a phone call about 8 o'clock, 8 30 from a friend who knew Tyler Robinson was trying to arrange his surrender, that Tyler and his family showed up at about 9 o'clock, and that Washington County was not the primary investigator.
00:37:59.000They did what they call a long and extended agency assist, meaning they're just there to help out.
00:38:05.000Utah County, who's the lead investigator in the case.
00:38:08.000And so, based on that, they conducted no interviews.
00:38:13.000Tyler just sat in their interview room while Utah County sheriffs drove the three and a half hours or whatever it is to get down there to take him into custody, transport him back up to Utah County, and formally charge him and initiate the legal process.
00:38:30.000So, that's a timeline that's been publicly known.
00:38:33.000There was some time back, I believe it was Ken Klippenstein.
00:38:38.000A journalist had received and published a Discord message that was purporting to be from Tyler Robinson, and it's in the nature of a confession.
00:38:49.000He's advising the members of this Discord group that, sorry, it was me at UVU the other day, I'm going to be turning myself in.
00:39:00.000And this Discord message was timestamped on September the 11th at about 7 20 something PM.
00:39:16.000It's all feasible, could absolutely happen.
00:39:20.000So, what happened is that in a defense motion that they filed, this was the motion that dealt with whether the cameras should be removed from the courtroom or not.
00:39:32.000The defense included an excerpt from a transcript of Tyler Robinson being read his Miranda rights, and he invoked his right to counsel in response to being read his rights.
00:39:44.000The nature of the defense's complaint was that various Public figures like the governor and other folks made public statements in the press that implied just nefarious things about invoking the right to counsel, that he wasn't cooperating, that this meant he was hiding something, that he's guilty, et cetera.
00:40:04.000And these are inferences that the jury is not going to be allowed to draw.
00:40:08.000For example, they'll be explicitly informed that you're not allowed to take into account somebody not giving a statement to police as evidence of guilt because we have an.
00:40:22.000Unqualified constitutional right to not provide information to police.
00:40:27.000So, what seems to have happened is that this Miranda transcript is timestamped at 6 something PM, but it doesn't have a date associated with it.
00:40:38.000So, there seems to be a series of assumptions that the Miranda warnings necessarily occurred on November the 11th rather than the 12th after he was taken into custody in Utah County.
00:40:52.000And therefore, that indicates he would have been in custody at 6 20.
00:41:11.000The problem with this is that Miranda warnings don't have anything to do with when you're arrested.
00:41:17.000Miranda warnings are required when you're going to be subjected to a custodial interrogation.
00:41:22.000This is a term of art in criminal practice.
00:41:24.000It means that the defendant is in circumstances of the kind that are associated with a formal arrest, and the defendant is the police.
00:41:34.000Are going to ask him questions that are intended to elicit an incriminating response.
00:41:40.000So, very routine when a law enforcement agency is going to interview somebody, they set them down in the interview room, read them the Miranda rights.
00:41:48.000You do it on camera so it's recorded and there's no question about whether it happened.
00:41:53.000And this is all pretty run of the mill.
00:41:56.000So, I think what happened is perhaps there was an assumption that because we see it a lot on TV, you know, if you watch Law and Order, you see somebody getting arrested and they immediately like, Put them in the handcuffs and read them the rights as they're taking away.
00:42:11.000That's not actually a real life criminal procedure thing.
00:42:14.000And so there's absolutely nothing in this transcript itself that indicates or even really implies that the interrogation and the warnings being read happened on September the 11th as opposed to September the 12th.
00:42:35.000The reason why I think Friday's hearing should dispel this.
00:42:39.000Issue entirely is because the state proffered the Discord message as one of the pieces of evidence that it anticipates to present at the preliminary hearing.
00:42:50.000And for the defense, the defense has never said anything about, you know, the timeline is bad or the confession is inauthentic or anything like that.
00:43:02.000This, given the context of this argument, would have been a prime opportunity for the defense to say, yes, Your Honor, and that, for example, is exactly why we need to have additional.
00:43:13.000Time to prepare for this preliminary hearing because, for example, they want to proffer this discord confession that we have a reason to believe is fake and inauthentic, and we can demonstrate that, and that would defeat probable cause.
00:43:25.000It's directly implicated by the argument that the court is considering and the reason why it's brought up in the first place.
00:43:33.000So the defense's failure to raise any of this is a pretty strong indication to me that it's because there's nothing there.
00:44:40.000And I mean, listen, this is me speaking, not you, but if you look at the DNA evidence, you look at the surveillance evidence, you look at the confessional evidence, you look at the.
00:44:48.000Family being involved in turning them in evidence.
00:44:59.000And frankly, Andrew, that's one of the reasons why it's going to take so long because this is a very, very tough case for the defense.
00:45:05.000And so they have to, they are duty bound to try to poke holes in as much of what's there as they can because what is there is so potentially damning for their client.