Accused Charlie Kirk killer Tyler Robinson back in court in Provo, UT

0:00 in that someone cannot set aside their bias. Is it? When it's implicit bias, it's very very explicit bias, but implicit bias, the problem is is that in order to set aside implicit bias, you have to be aware of the bias. First of all, you have to be motivated to correct that bias, and then you have to know the amount and the direction of that bias. And those are rarely there for unconscious bias. For explicit bias, yes. But for unconscious bias, how does someone guard against how they're going to interpret all trial evidence? How does someone guard against the fact that they're now um unable to discriminate what they saw prior to trial versus what they're seeing in trial. And so when they don't follow judicial instructions,

0:45 cuz we do instruct them not to use pretrial publicity. And so when they don't follow instructions, it could be that they're, you know, willingly not, but a lot of times it's because they're not aware that they're not following, you know, not following the instructions. They truly believe they're being good jurors, but they're just they have this unconscious bias that they cannot remedy themselves. Understood. Thank you. Um And again, the bias due to pretrial publicity can go both ways, correct? Correct. Um I could have you turn back to your declaration. I think you're I think you're there still. >> Yeah. If you go to page 26, paragraph

1:31 40, in this um part of your declaration, I think you're you're talking about the survey data that was used um in support of Utah's law creating the presumption for cameras in the courtroom. And you're talking a little bit about what California did. They did some additional um research here. Uh they used some interviews and systematic observation to perhaps bolster the the basis for their law. Correct. The last sentence or last two sentences in that paragraph, you wrote, "Each trial, witness, set of jurors, judges, attorneys are different." Correct? That's correct. You then say

2:17 there is no control over any variable, "and hence there is no way to conclude that cameras do or do not affect trial players' behaviors, memory, or decision-making." Close quote. That's correct. Correct. Thank you. Nothing for the judge. Thank you. Mr. Burton. Just >> [clears throat] >> In your PowerPoint presentation, you kind of summarized that there are three methodologies. One is survey research for studying pretrial effects of Pretrial publicity. One was survey research, right? Yes. Second was jury uh simulation research. Yes. And the third was meta-analysis. Correct. And uh

3:03 do those three areas of research kind of come together with some common understandings about the effect of pretrial publicity? Yes, they all converge on the same finding that pretrial publicity influences jurors' decisions, and that >> [clears throat] >> I'm There's also another that I don't explicitly list there. There's a shadow jury paradigm, which I I believe the prosecutor, you know, he alluded to where we looked at um I didn't look at it. It was the Towery Kapoor um they looked at it where it's kind of a both a field research and an experimental study. And in their study, they found that the findings once again um converged depending on what the jurors were

3:48 exposed to, regardless of how they were exposed to it in the real world out in a in the venue or, you know, experimentally, they were biased towards the side that they the pretrial publicity um was against. So, if it was negative defendant pretrial publicity, they're more likely to find the defendant guilty, and this is again converges over all of the methodologies. Um and if it was uh I think in that in that case in that shadow paradigm, if it was positive defendant, it was pro-defense. Is is overall purpose of your study to try and um eliminate bias on if possible on both ends of the spectrum? In other words, is your concern that both the defendant and

4:36 the government receive a fair trial not uh impacted by prejudicial pretrial publicity? Yes. A lot of the focus of the questioning by the state was, "Well, it it prejudices both ways." But in either side of the spectrum, you're getting prejudgment, right? That's correct. >> of the pretrial publicity, one is uh prejudicing the defense, the other prejudicing the state. That's correct. And neither, like I said, neither is acceptable in like in my opinion. And, you know, obviously I think in probably the court's opinion, you don't want that bias prior to trial. Um you would like jurors to come in that really can be impartial and not have a a favored side. And that's, you know, when they come to trial favoring the defense

5:22 or favoring the prosecution, um you know, that that is going to just result in a biased outcome. I want to be clear on one point. Were you suggesting that there is a way to eliminate implicit bias by using jury questionnaires or doing open-ended questions or any other method that we know of? It's not a way to eliminate, but it's a way to better identify jurors that might have bias. You're not going to eliminate the bias, but it might allow you to identify individuals that have um that have bias. And so again, it's not asking you know, you find out that someone has been exposed to something at that point, and you find out how much they've been exposed to, what they've been exposed to.

6:08 There's no sense in asking them if they can be impartial. If they've been exposed to a significant amount of pretrial publicity from one side or the other, then we can just assume that they're going to be biased. Last question. Based on your review of the publicity in this case, do you believe that the negative publicity, and negative I mean negative toward Mr. Robinson, um has mitigated the or the the anti Charlie Kirk publicity is somehow remedied the negative publicity given the nature and the timing in particular of of the publicity? No. And again, I think because predominantly early on,

6:54 and there's just a lot more by credible sources that is anti-defendant, then is, you know, anti-Charlie Kirk or anti- Erica Kirk or any And And you have to remember when we look at anti-victim pretrial publicity, especially when it comes to murder um in murder cases, cuz we do look at different types of cases, um in those cases, the anti-victim pretrial publicity kind of points that the victim somehow was responsible for their own death um because they they did something they weren't supposed to do. And I'll just give you an example. For example, they came into their ex-wife's house with a with a gun, and the ex-wife

7:40 thought that they were an intruder in the house and shot and killed them. Versus, you know, the ex-wife or the estranged wife, you know, in this case called her husband over so that she could So, it gives an alter uh you know, ulterior view of what happened to the crime. So, it isn't just credibility of the defendant or we don't, I'm sorry, of the victim or we don't like the victim. Um that is not what we manipulate in these anti-victims. It makes them look like some way they maybe could be culpable for their own victimology. Like myths about rape victims, for instance. >> Yes. That Yeah. A lot of the studies have been done in that area. And that has And that has been done, too. Yes. Is Is the publicity in in this case easily

8:27 characterized as pro-defendant or anti-defendant? For instance, there's some articles about suggesting, "Oh, well, Mr. Robinson allegedly was involved in a conspiracy with others, Israel or whatever." Does that exonerate Mr. Robinson, that kind of conspiracy theory? No, it still points It still points to the belief that he was guilty, he was just someone else was also involved, too. And so it doesn't It doesn't absolve the guilt, and it doesn't point away from the guilt of Mr. Robinson. Instead, it it says there might be other actors, too, that are involved in this. That's same thing as the sort of rape victim myth. Yes. Um kind of things that are studied in the literature. Okay. Thank you.

9:12 Thank you. Anything further? Judge, I have two quick areas of questioning. >> All right, Mr. Brunvand. In uh turning to your your last slide that you prepared, it was a slide number 82. Um the uh the title to the slide is expert conclusions. Mhm. And uh number one reads, "Based on my review of the empirical liter- research literature, the pretrial publicity identified in the defense motions and the Utah County public opinion survey, it is my expert opinion to a reasonable degree of psychological certainty that this case is situated within a highly prejudicial pre-trial environment that

9:59 presents a substantial risk to juror impartiality. You wrote that, right? So, with respect to pre-trial publicity, you referred You reviewed the defense motions pre-trial publicity. That is correct. You did not do your own deep dive into publicity. I was not asked to do that. Okay. If respondents to a survey were responding with words to describe Tyrone Robinson as a scapegoat or cover-up or fall guy, would that indicate that conspiracy theories that or theories that he was not the guy who did this are taking taking hold in the community? I mean I mean I don't know how widespread that is, but and again I I

10:47 would need to, you know, maybe look more at what else was said, but it it could. I mean there's a possibility there could there are some stories out there, but as I stated, there's just overwhelming anti-defendant pre-trial publicity. What happens with pre-decisional distortion is that we actually throw away things that don't fit our initial story. So, if we don't think it fits our story, I'm not I'm going to think that that's just crazy. That's just But if people were listening to conspiracy theories that were advanced starting the day of the charges, yeah, that's different. Yeah. That could affect their story model. Yes, correct. Okay. Thank you. All right. Anything further for this witness? All right. Thank you, doctor. You may step down.

11:34 All right. So, counsel, we'll turn now to closing arguments, but I do have some questions for counsel. As as you know, I'm I ultimately need to make the decision on what's being requested. And so, I did have some questions for you. The court is bound by rule 4-401.01 in deciding whether to allow or restrict electronic media coverage. First, subsection 2A states that there must be a presumption that electronic media coverage by a news reporter shall be permitted in public proceedings where the predominant purpose of the electronic media coverage request is

12:20 journalism or dissemination of news to the public. In assessing the predominant purpose, is the court required to consider the purpose of the requesting news media organization? For example, for today's hearing, the requesting media organization is ABC 4. The court form does not require the media to represent the purpose for the coverage. So, what criteria should the court apply in determining the predominant purpose of the electronic media coverage? Unfortunately, your honor, there is no guidance in case law. No court has interpreted this rule. The only thing we have to look at is the

13:06 genesis of the rule, which is the final report in 2012. And if the court looks at that report, you'll see heavy reliance on a study law review article that was done by Ninth Circuit Judge Kozinski back in the '90s. And one of the things that he emphasizes in that study and the only indication I could see of what is meant by the predominant purpose is he uses the O.J. Simpson trial as an example of what is not for the predominant purpose of journalism, but is rather sensationalism. And he uses how the camera is dramatizing events in the courtroom and

13:52 is the best example I saw of what could have been meant by that language. It's it's it's also noteworthy that that language was not part of the original rule when it was adopted. It was put in by amendment several years after the rule was adopted, I think in 2015 with and I did diligent search on this. I could not find any indication in the judicial council proceedings or anywhere else of what was meant by this. So, it's kind of an open question of how the court goes about and interprets it. I don't think it's governed by what how the media represents

14:38 themselves. I think it's more governed by the substance of it. Is it sensationalistic? Is it more focused on advertising? A lot of the coverage you'll see on the clips, even live stream coverage, has commercial breaks in it. And one of the factors that the Supreme Court cited, Estes, Maxwell, those cases, is the effect of having court proceedings that include product advertisements and and the kind of dis disrespect that could result from that from putting the court in the position of at least appearing like they're advertising goods here as opposed to

15:26 doing justice. So, in the absence of any indication and this language also is is unique to this state. I could not find it anywhere else in terms of what that meant. So, my best answer to the court of the question is that I think the court has to look at is it serving an educational purpose? Is it And that's what journalism is. You're reporting the news. You're not creating it. You are reporting on what's happening in court. You're not making arguments for the prosecution to show that Mr. Robinson is guilty. And one of the things we've tried to demonstrate in the hearing today is that at least the electronic media, the predominant theme

16:13 there is advancing the prosecution's side of the case. It's not educational in nature. It certainly is affected by a profit motivation, but more importantly, it's sensationalistic and it's prejudicial. And I would say that that is not within the scope of the language that the court is talking about. All right. Turning to the state. Judge, I don't know I know that I have a whole lot to respond to cuz these are unknowns. But the language of this So, there is a presumption that electronic media coverage by a news reporter shall be

16:59 permitted in public proceedings where the predominant purpose of the coverage request is journalism or dissemination of news to the public. So, when I first think of that, I mean we have all kinds of media coverage that is probably not journalistic in nature. Some of our some of the podcasts, some of the different streamings that can occur that we can find on on on the internet online. I don't know that you would couch those individuals as journalists so much. But ABC 4, KSL News, these are journalists that are that are live streaming these proceedings. The difficult the difficulty here that we're confronted with is is what is

17:46 being done with that coverage by third parties, which can't really be controlled. But a news organization that comes in to actually live stream these proceedings, they're then streaming those proceedings to the public. It's very educational. It's very newsworthy. It's disseminating the news. And so, I think if the request from the court was from a YouTuber, some sort of broadcaster or some sort of podcaster, there may be problems there. But when it's coming from a traditional news organization, they are in fact disseminating this news. But it's about the best I can give you right now, judge. All right. I just have two more questions for and and I'll ask you first. Subsection 2D of the rule states that

18:33 any reasons found sufficient to prohibit or restrict electronic media coverage shall relate to the specific circumstances of the proceeding rather than merely reflect generalized views or preferences. The court reads this as requiring individualized findings for each proceeding rather than permitting a blanket order prohibiting coverage. Is that your understanding? I believe that is accurate, judge. That is my understanding and that's why I think a request to just simply eliminate electronic media coverage in this case is is is premature. It's not warranted. There are going to be times probably throughout these proceedings where a hearing should be closed for safety purposes

19:19 or if there's you know, some sort of controversy that could prejudice one side or the other. But just a a blanket exclusion of the media I think would go well beyond what this allows for. All right. And so, is this what the court must undertake undertake this process for each hearing? Well, I think the court has sort of a foundation of the issues before it. Has an idea about what the effects of pre-trial publicity can be for or against either side. Um possibly even both. We didn't discuss what happens to people who look at both sides of the slanted coverage, what the effect on that individual is. But uh

20:05 I would suggest that uh the court can take what it's learned through these hearings, the evidence presented here, and apply that to the to the proceedings moving forward. Um and if we have to reconvene here or there or there has to be further argument, um we can make those arguments and the court has a basis to draw um from now. Thank you, Mr. Gruenandro. Mr. Burt, uh the same question posed to you. Uh subsequent 2D of the rules states that any reasons found sufficient to prohibit or restrict electronic media coverage shall relate to the specific circumstances of the proceeding rather than merely reflect generalized views or preferences. So, the court reads this as requiring

20:50 individualized findings for each proceeding rather than permitting a blanket order prohibiting coverage. Is that your understanding? No, it isn't, Your Honor, because I think what that section is referring to is um you can't base a finding under rule under the rule based on general concerns. It's got to be related to the specific uh publicity in this case. And the reason I read it that way is if the court looks at A, uh 2A, it says the court the judge may prohibit or restrict electronic coverage in those cases. It doesn't say in those proceedings. It says in those cases as if the court can

21:36 uh make a ruling regarding the entire case. And uh that reading, I think, is makes sense in terms of the practicality of having the court have to revisit this issue every time we have a court proceeding. Uh I think A points in the direction of the court being able to make a finding that applies to the case as opposed to a particular hearing or proceeding, and D directs the court that when you're considering the issue, you shouldn't take into account just generalized uh concerns like prejudicial publicity in general is harmful, but you have to look to the particulars of the case and decide in this particular case,

22:24 is there a reasonable likelihood that the defendant's fair trial rights will be jeopardized under the first factor. There are other factors, of course, but I I think that that is Or, for instance, on the privacy concerns. I think D is calling you to look at not in general, well, jurors may uh juror privacy or witness privacy may be jeopardized. That's a general concern or a general view. What the rule is saying you should do is don't look at general views or preferences. Look at whether the witnesses or potential jurors in this case uh could be impacted in terms of their privacy rights. That's the way I read the rule. All right, one final question,

23:10 Mr. Burt. I'll start with you. Sure. So, the court's not limiting argument on the factors set forth in rule 4-401.01. However, I would like counsel to address one specific factor, 2B V, which allows me to consider whether electronic media coverage will create adverse effects greater than those caused by media coverage without recording or transmitting images or sound. Even in the absence of electronic media coverage, the media retains a First Amendment right to observe and report on the proceedings. Is there evidence before me that would assist the court in comparing these two circumstances? There is, Your Honor, and in particular, the report um

23:55 set out in great detail in Dr. uh Ruva's declaration. And we didn't have time to explore this in detail here, but the declaration indicates that the source of the media does matter, that electronic coverage has a greater impact than print media uh because it's more visual. And from the perspective that Dr. Ruva talked about the source misattribution theory, the visual of the courtroom is much like what a juror is going to be hearing during the trial. So, in that scenario, they're much more likely to make the kind of source misattribution

24:41 errors that cause uh jurors to have this implicit bias. They're they're thinking, "Oh, I've heard this before." And what they may have heard before is the kind of coverage we saw today where the court proceeding is in the background. They've silenced what's going on in court, and the media talking heads are saying, "Let's look at the text. Let's look at the confessions." So, the the danger here is that they're going to confuse those two and not know that they're confusing them. And so, that comes from the visual looking at the images. You're not going to get that according to Dr. Ruva's declaration from print media alone. And she cites a number of studies on that issue. So, I

25:27 think there is evidence before the court on that. Well, the then that creates a another category, which is audio, because the audio is available to anyone if it's not a closed hearing. And so, uh walk me through the scenario if audio is played, and then as you described, media is is doing what you just described with the audio clips being played, and then then them commenting on that. I I think the situation is um not comparable to the video scenario, because in the video, they're they're using it as a backdrop. It it seems unlikely that they can use an audio backdrop, silence the audio, and make the kind of

26:12 commentary that they're making here. They're using that those images as a dramatic way to say, "Look, we're in court." And the announcer's saying, "And we heard during the hearing the text messages." Well, that didn't happen, of course. But how would you do that with an audio? You couldn't silence the audio and have the commentators putting in that prejudicial content. It's it's I think qualitatively different. Okay. All right, Mr. Gruenandro, I'll pose that same question to you. I'm happy to repeat it if you like. Um that's okay. Okay. I'll just pick up on where Mr. Burt left off. Um certainly the media could, certainly an outlet could grab the audio and splash something up on the screen, which we see as well, too, that could

26:58 prejudice one party or the or the other. So, I think the court raises a good point that the audio is going to be always available. Um certainly, I think that intense coverage of of any proceeding, there's a greater risk. Right? I think that that's fair to say. Um one thought that came to my mind, though, is that even perhaps a middle ground, if the court has concerns here, is is the WebEx broadcast. Um that would give the court control of the camera. There couldn't be zooming in and zooming out, uh stuff like that. But um there is a greater risk with additional coverage. All right, I would say. All right. Uh so, we have about 24 minutes. Um and I realize that your

27:43 your closing arguments um well, they are important. And and so, uh I'll give the parties an option. You can have a very brief closing, or if you wish to submit your closings to the court for consideration in written form, I'm happy to entertain that, so you're not limited to um a time constraint. What are the thoughts of the parties? I have uh submitted to the court, I think it's getting near the 200-page limit of uh written arguments in front of the court. And the hearing has uh provided the court, I think, with some

28:29 sense, but the real important stuff is in the declarations that were submitted in support of the motion. Those uh that declaration is thoroughly addressed in the the written motion. So, I'm not sure it would be helpful for the court to burden you with yet more paperwork. May I do it? But I I think the court has the tools in the written submissions. I I do want to in the brief time I have, say a couple of things that I wanted the court to focus on that have come up since we filed the pleadings uh that I think are important. And I think if the court could give me a little time to do that, then I'd be satisfied with keeping within the time limits and submitting it based on the the pleadings that are in front of the court. Sure,

29:15 how much time would you like? I'll try and do it in 10 minutes. And how about uh how about five? Deal. All right. Um one of the things the court when we were discussing this issue the last time, uh the court asked me whether the Estes case had been overruled. And I've been thinking a lot about that uh after that, and I'm not sure I answered it satisfactorily. I said no, that there is still this notion of prejudicial pretrial publicity in high-profile cases, which this is. I stand by that argument, but I went back and took a look at uh Utah Supreme Court cases since Chandler was decided in 1981 to see whether there was any sort of hint in Utah cases

30:04 suggesting that uh Estes was no longer good law. And I also looked just at general at how many times that case has been cited. It's been cited as of yesterday about 4,200 times, which is not generally how overruled cases are treated. It's not listed in Westlaw's overruled. It's cited a lot, and the Utah Supreme Court after Chandler was decided cited it three times. Or Or they either cited Chandler or they cited uh Estes in three opinions. One of them was when they were considering modifying uh >> [clears throat] >> back in the '80s prohibited in court coverage.

30:51 And in 1981 the Utah Supreme Court uh published a a brief memorandum opinion about that proposed modification. And the court cited Chandler uh in its discussion. And the proposal was that the prohibition be eliminated. And the Supreme Court says, "The members of this court are unanimously of the view that Canon 3's prohibition against televising, broadcasting, or recording of judicial proceedings should be reaffirmed, and that the petition for modification of those provisions should be denied. We are not satisfied that the balance between the interests of news reporting and the interests of a fair

31:37 trial represented by Canon 3 would be improved by the proposed changes. Experiments underway in other states may yet suggest appropriate modification to the Canon on the subject, but for the present we remain unconvinced that change is warranted." And they note that Chandler was decided uh before they published this opinion. So, they recognized that Chandler was on the books. They did not go down that path. And so, that's the first time they cited it. They cited it again in a case 1983 672 Pacific 2d 1254

32:23 where they discussed it in the context of uh a juror misconduct claim for jurors who had uh despite the court's instructions had read the pretrial publicity. And it's cited for the Estes is cited for the proposition in the the defend-