- Media attorneys challenge Tyler Robinson's defense team's refusal to share "private" motions.
- They argue this hinders public access to Robinson's capital murder case.
- Robinson's defense cites public scrutiny as reason for sealing documents.
PROVO — Attorneys for multiple media organizations say the Tyler Robinson defense team in his capital murder case is not allowing them to see "private" motions and they want to talk about it in court.
On Thursday, the attorneys for the media — who represent KSL, Deseret News, the Salt Lake Tribune, the New York Times Company, CNN, Fox News Media and many more — submitted several filings in 4th District Court to Judge Tony Graf. The filings are the latest in the battle over Robinson's repeated filing of motions classified as "private" and not available to the public.
In their latest response, attorneys for the media remind Graf that "counsel for the news media are officers of the court."
"If the defense provides them with their purportedly secret closure papers on the condition they be maintained on an 'attorneys' eyes only' basis, there is no reason to believe counsel would violate that restriction. But the defense has refused to provide their sealed submissions, even with that procedural safeguard, to counsel for the news media, meaning the court will not receive a full and adequate briefing on the weighty constitutional issues of closure. That position is unjustified and contrary to the normal course of this court's presumptively public proceedings. This court should flatly reject it," the news media argues.
Attorneys for the media are asking the judge to order that whenever a request is made to file a motion as "private," then "the news media's counsel should be allowed to see the motion papers supporting that extraordinary request and meaningfully respond on the merits. … Holding otherwise, as the defense has reflexively insisted, is contrary to the fundamental principles of our adversarial system of justice and the constitutional guarantee, which this court has repeatedly recognized, that these proceedings should be conducted in the light of day," according to their request.
"Some things are not up for debate. One is that the news media have a right to be heard in a meaningful manner," the media attorneys continued while requesting a hearing on the matter. "The latest closure motion filed by the defense seeks to bar all video, audio, and cameras from the courtroom for a case of substantial public interest, contrary to the presumption in the Utah rules allowing such coverage. And it apparently contains more than 200 pages of purported 'evidence' supporting that request. The defense may not want to have their 'evidence' tested in a meaningful adversarial process, but that is not how our system works, and it deprives this court of the advocacy it needs to properly do its job."
Robinson and his defense team filed a motion on Jan. 9 "with exhibits" and immediately requested that the motion be made private so the public cannot read it. A second motion was filed on Jan. 16, asking a judge to keep cameras out of the courtroom and requesting that the document be classified as private.
The defense has repeatedly cited the significant interest their client's case has generated and jeopardizing his right to a fair trial as their reason for sealing documents.
"As the highly biased traditional local and national media and nouveau international social media coverage of this case demonstrates, every in-court statement by attorneys representing the state, whether under oath or not, every statement by counsel for Mr. Robinson, and every observation and ruling by this court are under a microscope and subject to micro-surgery by journalists, bloggers, media 'experts,' and others," the defense said in a filing this week.
Also on Thursday, the media filed a rare sur-reply in response to Robinson's reasons for sealing their Jan. 9 motion. Attorneys for the media are responding to three court cases that Robinson's team says support its position, but in which the media argues "are inaccurately described."
The 1979 case of Gannett Co. v. DePasquale involved a request to exclude the public from a pretrial hearing on the admissibility of evidence in a homicide case. But attorneys for the media contend that Gannett was "not a First Amendment case" but rather a Sixth Amendment case, which guarantees a defendant the right to a speedy and public trial by an impartial jury. The media attorneys point to another court ruling five years later that further stated, "The risk of prejudice does not automatically justify refusing public access to hearings on every motion to suppress," and that "'voir dire' is the preferred method of identifying those jurors whose prior knowledge of the case would disable them from rendering an impartial verdict."
The media agreed with the defense that evidence in the 1993 Utah Supreme Court decision in State vs. Michael Anthony Archuleta did have some records restricted because they "contained 'gruesome' and 'horrific' details about a 'homicide (that) was committed in a particularly depraved manner."
But in the Robinson case, the media is left to guess what evidence the defense wants to exclude, according to the media's filing.
"Given the circumstances of the alleged crime, they are certain it is not that, or likely even in the same ballpark. To put a sharper point on it, no one has ever argued the public's constitutional right of access is absolute and can never, even in rare or unusual circumstances, be overcome," the media argues. "Defendant's attempt to spin Archuleta and Gannett into a categorical argument that the public has no right of access to any pretrial suppression motions or the evidence they concern, no matter their content, has no grounding in any constitutional precedent."
Finally, the media argues that Robinson incorrectly makes comparisons to the case of the United States vs. Timothy McVeigh because of the issue of inadmissible evidence.
"As a threshold matter, the question in McVeigh was not primarily access to pretrial suppression hearings or associated motion papers, as defendant incorrectly implies. The question, instead, was whether the public had a right to access underlying evidence that was excluded (and discussed in redacted portions of the publicly filed papers) after an open suppression hearing had been held in the full light of day," according to the media filing. "Also, unlike McVeigh, there has been no ruling in this case that the evidence at issue is inadmissible.
"No court has held that the mere possibility that evidence will be excluded at the trial court level is sufficient to prophylactically seal all evidentiary motions until a ruling is made."
In McVeigh, the question concerned how the evidence — McVeigh's statement — was collected, not the evidence itself, the media argues.
Also on Thursday, the Utah County Attorney's Office filed its opposition to Robinson's request to have their Jan. 9 motion classified as "private."
"Defendant's justification for restricting access to his motion is inadequate," prosecutors said in their opposition.
The county attorney's office says just because a judge has not yet ruled on the admissibility of evidence, the defense cannot restrict public access to that evidence.
"Nor does defendant explain, even in general terms, why exposure to information about the evidence in the motion would so taint potential jurors that he could not receive a fair trial," the court filing continues. "Given defendant's inadequate justification for restricting access to his motion, and the existence of these 'reasonable ways to ensure a fair trial' despite pretrial publicity, defendant has not rebutted the presumption that the public should have access to his motion."
Robinson's next hearing is scheduled for Tuesday. It is a continuation of one that started on Jan. 16 regarding whether the Utah County Attorney's Office should be disqualified from the case because one of their prosecutors has an adult child, a Utah Valley University student, who attended the Turning Point USA rally when Kirk was killed.
Robinson, 22, is charged with capital murder and faces a possible death sentence if convicted of shooting and killing Kirk on Sept. 10.
