The Charlie Kirk Show - The Future of the Tyler Robinson Case ft. Andrea Burkhart

00:00:03.000 My name is Charlie Kirk.

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00:01:17.000 All right.

00:01:17.000 So 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.

00:01:30.000 And that's what caught my attention.

00:01:33.000 And she's been paying very close attention to the Tyler Robinson trial.

00:01:36.000 Her name is Andrea Burkhart.

00:01:38.000 She's a legal commentator, an experienced trial, and appellate litigator.

00:01:41.000 You can follow her on Substack at andreaburkhart.substack.com.

00:01:45.000 And we'll put that URL on the lower there.

00:01:48.000 Welcome to the show, Andrea.

00:01:50.000 Hey, thanks so much for having me.

00:01:51.000 And thank you for your live streams and for your Substack.

00:01:55.000 The whole team here has been reading them.

00:01:57.000 We kind of become aware of you.

00:01:59.000 And, 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.

00:02:08.000 No, we need the work.

00:02:09.000 She does. 0.87

00:02:09.000 We need the work that you do. 0.87

00:02:10.000 Yeah, we need it.

00:02:11.000 And I think you add a lot of clarity to a lot of people who don't understand the way that criminal trials play out.

00:02:17.000 So we had a big hearing on Friday, and it was the longest, I would think, most substantial one that we've had.

00:02:24.000 And a lot of news was sort of made during this Friday hearing.

00:02:30.000 And you did a whole sub stack on.

00:02:32.000 This DNA data that the defense is requesting, and they're saying that they don't have it and therefore they need like six more months.

00:02:38.000 So I'm going to play that clip and get your reaction to it.

00:02:41.000 Sop five.

00:02:42.000 We can't present any expert testimony on DNA without having the underlying data.

00:02:52.000 Second step.

00:02:55.000 If 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.

00:03:08.000 But I can't examine those witnesses without the data.

00:03:13.000 Okay, so make heads or tails for this.

00:03:16.000 Is the state doing something nefarious?

00:03:18.000 Are they underhanded?

00:03:20.000 The floor is yours.

00:03:21.000 Well, I think where a lot of confusion is arising over this particular issue is that.

00:03:27.000 From 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.

00:03:40.000 And 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.

00:03:58.000 And 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.

00:04:10.000 And what goes along with that is the limited rights that the defendant has in that particular context.

00:04:17.000 Due 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.

00:04:28.000 And 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.

00:04:48.000 Because that's the limited purpose, the rights that go along with that purpose are similarly limited.

00:04:54.000 And 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.

00:05:13.000 And so, because of that, where I think there is kind of some conflation that's going on here.

00:05:20.000 Is 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.

00:05:41.000 So, Andrea, are you saying that it's not unusual for them to want the underlying data for this DNA testing?

00:05:47.000 You're just saying that based on Utah law and the fact this is a limited scope pre trial hearing.

00:05:53.000 That the state is not required to at this point.

00:05:56.000 So it wouldn't be unusual that they haven't turned this over at this point.

00:05:59.000 Exactly.

00:06:00.000 I think that's a very fair description of what is going on.

00:06:03.000 These issues with DNA evidence really are fascinating and are kind of on the cutting edge of just the intersection between courts and science.

00:06:14.000 Courts 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.

00:06:25.000 And with DNA evidence, we're talking about.

00:06:28.000 Evidence 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.

00:06:40.000 And 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.

00:06:49.000 A man's life is on the line here.

00:06:52.000 But 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.

00:07:02.000 In 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.

00:07:21.000 But 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.

00:07:33.000 So, 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.

00:07:43.000 But that is the type of issue that takes place much further down the road and closer to trial.

00:07:49.000 So, 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.

00:07:58.000 You're mentioning this is reasonable, but it's so early in the process.

00:08:02.000 This is in the lead up to the preliminary hearing.

00:08:05.000 The murder of Charlie happened seven months ago.

00:08:09.000 And 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?

00:08:22.000 Is this something that's become more common over time?

00:08:25.000 Like maybe courts have slowed down a lot since COVID or something?

00:08:29.000 Help us, for those of you who aren't professionals, how normal is the situation we're seeing unfold here?

00:08:35.000 Sure.

00:08:35.000 So far, there's nothing about the timeframes that strike me as extraordinary.

00:08:40.000 In 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.

00:08:54.000 So, in and of itself, that's not unusual.

00:08:56.000 And 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.

00:09:07.000 But 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.

00:09:19.000 And 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.

00:09:30.000 And so the thoroughness of the process is very much a concern for all of the participants, but it is very normal for folks who.

00:09:41.000 Haven'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.

00:09:50.000 And 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.

00:10:09.000 And 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.

00:10:20.000 So, 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.

00:10:33.000 And 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.

00:10:45.000 Put some of these issues in context?

00:10:47.000 Well, and I'm going to play the clip now because we're running out of time in this segment, but we're going to get to it in the next.

00:10:52.000 And it's interesting because the defense has admitted that they haven't even reviewed everything they've been given.

00:10:58.000 SOT 4.

00:10:59.000 Has the defense reviewed all the discovery that has been presented up until this point in preparation for a preliminary hearing set for next month?

00:11:08.000 If the court is saying, have you reviewed the thousands, have the lawyers reviewed the thousands and thousands and thousands of pages of discovery?

00:11:17.000 That are well documented in the index that Mr. McBride provided the court privately?

00:11:23.000 The answer is no.

00:11:26.000 Our paralegals are doing their best to organize it.

00:11:30.000 But have counsel reviewed that discovery and haven't we had reasonable time to do so?

00:11:35.000 No.

00:11:36.000 The 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.

00:11:48.000 So is that normal?

00:11:49.000 Do they have a leg to stand on here?

00:11:51.000 Well, 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.

00:12:01.000 This is both based on the legal arguments that were presented themselves.

00:12:06.000 The 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.

00:12:18.000 You 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.

00:12:26.000 And 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.

00:12:42.000 As far as not having the opportunity to review the discovery, this is life as a public defender.

00:12:48.000 They're dealing with a volume of data that is extraordinary.

00:12:53.000 We'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.

00:13:07.000 Devices, meaning cell phones, computers, things of that nature.

00:13:12.000 And 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.

00:13:24.000 So it is a massive volume of information to process and.

00:13:28.000 That is just kind of part of the life of being a public defender.

00:13:33.000 We saw, I followed also very closely the Brian Koberger case, which has come up many times, kind of by analogy, in this proceeding.

00:13:43.000 And 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.

00:13:55.000 And the defense is still at that point having a very difficult time.

00:14:00.000 Being able to go through all of the information that's handed over.

00:14:04.000 So, having a high volume of information to process, not at all unusual.

00:14:09.000 Defense 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.

00:14:25.000 They're accustomed to evaluating what they have and prioritizing what needs the most attention and what doesn't.

00:14:32.000 So, it's certainly not a perfect system for all kinds of different reasons.

00:14:37.000 But these particular issues with just needing more time, more hours in the day, these are kind of universal and they persist throughout the process.

00:14:47.000 So, there's been another issue raised, Andrea, you know, when it comes to this constitutional right to a speedy trial, right?

00:14:55.000 That's supposed to be for the defendant, not for the victims of, or the family members of the victim.

00:15:01.000 In this case, it would be like Erica, for example.

00:15:03.000 So, I'm going to play a cut here and get your reaction to it.

00:15:08.000 So, 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?

00:15:25.000 So, Andrea, who has a right to a speedy disposition of the case?

00:15:29.000 So, in Utah, both the defendant and the victim have a right to a speedy disposition.

00:15:37.000 Speedy 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.

00:15:56.000 These rights typically include things like rights to notice, rights to participate and be heard.

00:16:03.000 And in the case of Utah, they have provided victims with rights to a speedy trial.

00:16:09.000 And 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.

00:16:20.000 But 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.

00:16:31.000 The 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.

00:16:42.000 There 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.

00:16:54.000 It prevents the victim from being able to.

00:16:58.000 Kind of heal and move on.

00:16:59.000 It creates impediments.

00:17:01.000 This 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.

00:17:15.000 But 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.

00:17:32.000 Andrea, can we pause just on that point?

00:17:34.000 It's such an important point you just made.

00:17:38.000 And I think, you know, we've seen all these conspiracy theories.

00:17:41.000 There'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.

00:17:53.000 And they, in fact, did that in this hearing on Friday.

00:17:56.000 The very limited things that Erica has said was even mentioned in court.

00:18:01.000 So, 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.

00:18:11.000 And people don't understand that.

00:18:13.000 They think of a right to a speedy trial as just representing the defendant.

00:18:17.000 But actually.

00:18:18.000 I 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.

00:18:27.000 Yes.

00:18:28.000 I think I'm detecting that in a lot of the reactions to what's going on.

00:18:30.000 You're right.

00:18:31.000 You're right.

00:18:31.000 And.

00:18:32.000 Almost 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.

00:18:39.000 But listen, we're looking at a trial start date, Andrea.

00:18:42.000 We've only got 30 seconds left in the live show here, but we'll keep you after.

00:18:46.000 And so for those of you watching, please check out the podcast.

00:18:49.000 But we're thinking like January or something, right?

00:18:53.000 If it doesn't get delayed another six months.

00:18:55.000 So I am not expecting the preliminary hearing to be significantly delayed.

00:19:01.000 Now, the trial itself, Frankly, could still be years down the road.

00:19:06.000 We don't have a trial setting at this point in time.

00:19:08.000 It is normal for capital cases to take a long time to prepare.

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00:20:19.000 Noble Gold Investments is standing by and ready to help.

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00:20:28.000 All right, Andrea.

00:20:29.000 So, yeah, let's continue on that thread.

00:20:31.000 You say you don't think the preliminary hearing is likely to be delayed.

00:20:35.000 So, we may finally see that within May, a couple months.

00:20:38.000 End of May.

00:20:39.000 End of May.

00:20:40.000 Yes.

00:20:40.000 But then you're saying the trial could be years away.

00:20:44.000 What's your, I don't know, let's play polymarket here.

00:20:48.000 What would your bet be on when we might finally start empaneling jurors for this trial?

00:20:54.000 Early 2028.

00:20:55.000 I would put the over under on early 2028.

00:21:00.000 It's just the nature of capital cases.

00:21:03.000 And 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.

00:21:14.000 And 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.

00:21:34.000 Because everything is at stake here.

00:21:36.000 And 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.

00:21:56.000 This is a particularly complicated issue from a scientific standpoint because we know from some of the court.

00:22:06.000 Presentations that we are dealing with at least some mixtures.

00:22:10.000 And so interpreting DNA mixtures is a complicated statistical question.

00:22:17.000 And 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.

00:22:37.000 Testing process or their analysis and their conclusions.

00:22:42.000 But that type of thing does not happen quickly.

00:22:44.000 And that's particularly the case with the types of challenges that they seem to be teeing up here.

00:22:50.000 There's a particular probabilistic genotyping program called STRMix that's commonly used to interpret mixed DNA samples.

00:23:01.000 And when I say interpret mixed DNA samples, what I mean is.

00:23:06.000 They 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.

00:23:17.000 But 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.

00:23:27.000 And so it's the significance of that inclusion that's what's at issue in evaluating well, is this evidence?

00:23:38.000 Important or is it not important?

00:23:39.000 If 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.

00:23:48.000 So it's the significance that this statistical calculation is getting at.

00:23:55.000 And 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.

00:24:08.000 Potentially going to require litigation because we're talking about access to third party proprietary software.

00:24:15.000 Is that normal to ask for the source code of a private company?

00:24:19.000 I mean, that seems like the company would not want that to be shared for proprietary business reasons, right?

00:24:26.000 And the companies are not necessarily bending over backwards to volunteer this information.

00:24:26.000 Sure.

00:24:33.000 But yes, this is actually pretty normal for this type of litigation and these types of challenges because.

00:24:40.000 It goes to establishing the underlying validity of what comes out of that computer.

00:24:48.000 There's always a risk of garbage in, garbage out.

00:24:50.000 And 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.

00:25:03.000 So, it's not revolutionary.

00:25:06.000 This has been an issue.

00:25:08.000 It'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?

00:25:23.000 Is it peer-reviewed?

00:25:25.000 Has it been replicated?

00:25:26.000 Is it transparent?

00:25:28.000 So, 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.

00:25:44.000 They don't need to go through the FBI or another agency.

00:25:47.000 They can go directly to STR Mix.

00:25:50.000 But there are conditions on that.

00:25:52.000 It's subject to signing a non disclosure agreement.

00:25:55.000 It's subject to you go and inspect it on their computers.

00:25:58.000 You don't get your own copy.

00:26:00.000 And it's precisely for those reasons that you mentioned.

00:26:02.000 This is proprietary, it's a trade secret.

00:26:06.000 And so Companies are absolutely going to want to keep as much protection of that intellectual property as they're able to do.

00:26:16.000 But 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.

00:26:27.000 And so that appears to be where the balance has been struck.

00:26:30.000 Andrea, first of all, just thank you for how thorough you are on all of this.

00:26:33.000 I think this has really helped explain things that have been confusing to us, to other observers who are following this.

00:26:40.000 So, You predicted we won't get a trial till 2028.

00:26:45.000 I think all of us here, Andrew and I, certainly both groaned as soon as we heard you say that.

00:26:52.000 I think a lot of other people are feeling the same way.

00:26:54.000 There's a dimension I want to get at with this.

00:26:56.000 You'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.

00:27:08.000 But I think one thing we're all thinking about, let's be frank, there are a lot of really bizarre, really aggravating cases.

00:27:16.000 Theories, conspiracies that have emanated around this case.

00:27:19.000 And 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.

00:27:28.000 And 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.

00:27:36.000 And 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?

00:27:49.000 Will that affect the case one way or the other?

00:27:51.000 Are 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.

00:28:06.000 And so we need to throw out the result or something?

00:28:09.000 Well, you can kind of see to some extent the defense is already positioning itself to raise issues about the public commentary about this case.

00:28:20.000 From 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.

00:28:33.000 And 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.

00:28:54.000 So there's a presumption.

00:28:56.000 In 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.

00:29:17.000 And so we can already anticipate that these are going to be issues that the defense is going to focus on in the trial.

00:29:24.000 Yeah, Andrea, you mentioned that the defense is going to be focused on them, but isn't there just as much?

00:29:29.000 Room 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?

00:29:35.000 All it takes is one juror that listens to a certain podcaster, and maybe that's the whole point.

00:29:42.000 Oh, absolutely.

00:29:43.000 The state is going to be very concerned about this as well.

00:29:46.000 And 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.

00:29:56.000 And 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.

00:30:12.000 Most 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.

00:30:21.000 So, both of the parties are going to be on the alert for this during the jury selection process.

00:30:26.000 The court's going to be alert to it as well.

00:30:29.000 When 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.

00:30:36.000 And has the opportunity to challenge the process and try to seek a new trial.

00:30:42.000 The state doesn't have the right to appeal an acquittal.

00:30:45.000 If he were found not guilty, then that's the end of the road, the double jeopardy.

00:30:51.000 Andrew, what about a hung jury, for example?

00:30:53.000 I'm just curious.

00:30:55.000 So, what is that, and what would then be the ramifications?

00:30:58.000 So, a hung jury is when the jury can't unanimously agree on either a guilty or a not guilty verdict.

00:31:06.000 They are too divided to be able to resolve.

00:31:10.000 The differences of opinion that they have.

00:31:12.000 A hung jury amounts to a mistrial.

00:31:15.000 And 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.

00:31:24.000 So they could go back in and attempt a retrial in that situation.

00:31:29.000 So, the obvious question you predicted basically two and a half years to get to a trial the first time.

00:31:35.000 If we got a hung jury, how long would that plausibly take to start and finish?

00:31:43.000 Typically, 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.

00:31:52.000 The discovery has been conducted, it's been closed, the witnesses have been identified, and so forth.

00:31:58.000 And 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.

00:32:13.000 To be re litigated just because one trial ended without an outcome.

00:32:19.000 So, mistrial, retrial can typically occur much more quickly than the trial in the first instance.

00:32:27.000 So, 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.

00:32:39.000 Allegedly.

00:32:41.000 Allegedly.

00:32:42.000 So, I'll play the clip and then you tell me what was actually being said here.

00:32:45.000 Sot 2.

00:32:46.000 He then leaves the campus.

00:32:48.000 UVU surveillance then captures him return later.

00:32:51.000 He returns on foot right before the Charlie Kirk event.

00:32:54.000 He's wearing a disguise of sorts.

00:32:57.000 He's limping because there's a rifle down his pants.

00:33:00.000 The 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.

00:33:17.000 That's all captured on video.

00:33:19.000 So, 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.

00:33:32.000 But we don't know what video that they have specifically.

00:33:36.000 There'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.

00:33:50.000 One question I have for you is What did you make as an outside observer of the evidence that they already have presented?

00:33:56.000 Was it new to you?

00:33:57.000 Is it shocking to you?

00:33:58.000 And who do you think had the more, I guess, persuasive day in court on Friday?

00:34:04.000 Oh, I think it's unquestionably a stronger day for the state than it was for the defense on Friday.

00:34:11.000 And 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.

00:34:23.000 It is evidence that corroborates itself.

00:34:27.000 And so it presents a very strong and persuasive case.

00:34:32.000 Frankly, even in a trial context, if they can present what they have, we're in a pretty good position relative to many other cases.

00:34:42.000 So I, being a lawyer, am familiar with the wordsmithing that lawyers often do and the ways that things can be stated or implied.

00:34:57.000 I get what you're getting at there, I think.

00:35:00.000 Yes, may or may not mean more than we think they do.

00:35:03.000 So I personally am not inferring too much from what Mr. McBride, the prosecutor, had to say about what the video evidence. Consists of.

00:35:16.000 What 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.

00:35:28.000 And so here's what they are going to be able to show.

00:35:32.000 He'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.

00:35:46.000 It's just an aspect of what happens.

00:35:49.000 When a case is publicized and it's presented to a large audience like this.

00:35:54.000 So the attorneys always kind of have two hats on when they're making public statements in court while the cameras are there.

00:36:00.000 But.

00:36:02.000 Okay.

00:36:03.000 Yeah.

00:36:03.000 So now that you answered my question well, so whether or not there's video of the actual perch in the shooting remains a little bit vague.

00:36:10.000 We're not sure.

00:36:11.000 It certainly seemed like he was inferring that, but he didn't say it directly.

00:36:14.000 Okay.

00:36:14.000 So we'll hold on that.

00:36:16.000 You said that the prosecution had the better day.

00:36:20.000 And I agree.

00:36:21.000 So I think that's interesting from your perspective.

00:36:23.000 All right.

00:36:23.000 So, and I think we'll try and make this the final kind of line of questioning.

00:36:27.000 But there's been another controversy that's emerged online.

00:36:31.000 And 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.

00:36:45.000 So the allegations, it's even hard for me to fully understand.

00:36:50.000 Distill it succinctly, but that basically the timeline of the 11th and the 12th when he was arrested does not line up.

00:36:58.000 That the timeline's all mixed up, and that there were comments by some of the law enforcement that contradicted that timeline.

00:37:05.000 You know it better than I do, candidly.

00:37:07.000 Why don't you tell us what the controversy is and what your take of what truth really is?

00:37:12.000 Sure.

00:37:13.000 So, 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.

00:37:21.000 But the basic gist of it is that the official timeline that we've had for Tyler Robinson's surrender comes primarily from.

00:37:30.000 Some 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.

00:37:59.000 They did what they call a long and extended agency assist, meaning they're just there to help out.

00:38:05.000 Utah County, who's the lead investigator in the case.

00:38:08.000 And so, based on that, they conducted no interviews.

00:38:11.000 They did no investigation.

00:38:13.000 Tyler 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.

00:38:30.000 So, that's a timeline that's been publicly known.

00:38:33.000 There was some time back, I believe it was Ken Klippenstein.

00:38:38.000 A 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.

00:38:49.000 He'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.

00:39:00.000 And this Discord message was timestamped on September the 11th at about 7 20 something PM.

00:39:13.000 All of this so far is consistent.

00:39:16.000 It's all feasible, could absolutely happen.

00:39:20.000 So, 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.

00:39:32.000 The 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.

00:39:44.000 The 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.

00:40:04.000 And these are inferences that the jury is not going to be allowed to draw.

00:40:08.000 For 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.

00:40:22.000 Unqualified constitutional right to not provide information to police.

00:40:27.000 So, 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.

00:40:38.000 So, 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.

00:40:52.000 And therefore, that indicates he would have been in custody at 6 20.

00:40:59.000 That's an hour before the Discord.

00:41:01.000 Confession was sent.

00:41:02.000 These things can't be reconciled.

00:41:04.000 It's a problem that indicates the Discord message is inauthentic.

00:41:09.000 This is the argument.

00:41:11.000 The problem with this is that Miranda warnings don't have anything to do with when you're arrested.

00:41:17.000 Miranda warnings are required when you're going to be subjected to a custodial interrogation.

00:41:22.000 This is a term of art in criminal practice.

00:41:24.000 It means that the defendant is in circumstances of the kind that are associated with a formal arrest, and the defendant is the police.

00:41:34.000 Are going to ask him questions that are intended to elicit an incriminating response.

00:41:40.000 So, 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.

00:41:48.000 You do it on camera so it's recorded and there's no question about whether it happened.

00:41:53.000 And this is all pretty run of the mill.

00:41:56.000 So, 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.

00:42:09.000 That's a TV thing.

00:42:11.000 That's not actually a real life criminal procedure thing.

00:42:14.000 And 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.

00:42:35.000 The reason why I think Friday's hearing should dispel this.

00:42:39.000 Issue 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.

00:42:50.000 And 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.

00:43:02.000 This, 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.

00:43:13.000 Time 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.

00:43:25.000 It's directly implicated by the argument that the court is considering and the reason why it's brought up in the first place.

00:43:33.000 So the defense's failure to raise any of this is a pretty strong indication to me that it's because there's nothing there.

00:43:41.000 Wow.

00:43:42.000 Really well done.

00:43:42.000 That's fascinating.

00:43:44.000 That was helpful.

00:43:45.000 Yeah.

00:43:45.000 Do you have anything else for Andrea while we have her?

00:43:47.000 She's probably got other things to do with her time.

00:43:49.000 Yeah, she probably does.

00:43:50.000 But no, again, I want to thank her.

00:43:52.000 This is very thorough.

00:43:53.000 I think our audience, especially, is really going to appreciate this.

00:43:57.000 These are tough technical topics, which we normally are not delving deep into, but here it's very personal, very important.

00:44:04.000 Not just for our audience's peace of mind, but we know what's out there, what people have been trying to say to muddy this up.

00:44:10.000 So we're very grateful for you offering professional perspective and experience on that.

00:44:15.000 Yeah.

00:44:16.000 Thank you.

00:44:16.000 It's been a real pleasure.

00:44:18.000 Yeah, it's been a pleasure.

00:44:19.000 We'll have you out on again soon, I'm sure.

00:44:21.000 Might be having you on for two years.

00:44:23.000 Yeah, I know.

00:44:24.000 I hope you're wrong on that one.

00:44:25.000 I hope you're wrong on that one.

00:44:26.000 I certainly hope so.

00:44:31.000 mean, we're pretty clear on how we feel, the evidence points.

00:44:34.000 We want to get some peace of mind for Erica and frankly for the country.

00:44:39.000 Closure.

00:44:39.000 Yeah, closure.

00:44:40.000 And 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.

00:44:48.000 Family being involved in turning them in evidence.

00:44:51.000 There's a ton there.

00:44:54.000 But, you know, who am I?

00:44:55.000 Let's, I guess, just wait till 2028, right?

00:44:58.000 Okay.

00:44:59.000 And 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.

00:45:05.000 And 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.

00:45:17.000 So.

00:45:18.000 That's just unfortunately the nature of the process.

00:45:22.000 Yeah.

00:45:22.000 Well, thank you again for your time and for Calm Balls and Strikes.

00:45:26.000 Like I said, sometimes I read your stuff and I'm like, I wish you would go harder on that.

00:45:31.000 But like you are very sort of respectfully and I admire the sort of dispassionate sort of center that you take.

00:45:40.000 And I think it's very educational.

00:45:42.000 So thank you, Andrea.

00:45:44.000 Thank you. 0.87

00:45:44.000 Check out her Substack, please. 0.87

00:45:45.000 I actually really, really, really recommend our audience do that.

00:45:48.000 It's Andrea Burkhart, B U R K E. H A R T dot substack dot com.

00:45:56.000 So check it out and follow her stuff.

00:45:58.000 Thank you.

00:45:58.000 She has a YouTube too.

00:45:59.000 Oh, and a YouTube.

00:46:00.000 What's your YouTube, Andrea?

00:46:01.000 My YouTube is you can just put my name in, Andrea Burkhart, or the handle is at a Burkhart Law.

00:46:07.000 Perfect.

00:46:07.000 Awesome.

00:46:08.000 Thank you so much for spending some time with us today.

00:46:10.000 We'll talk to you soon.

00:46:11.000 Thank you.

00:46:12.000 It's been a pleasure.

00:46:17.000 For more on many of these stories and news you can trust, go to CharlieKirk dot com.

The Charlie Kirk Show - April 20, 2026

The Future of the Tyler Robinson Case ft. Andrea Burkhart

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