← Preliminary Hearing

Preliminary Hearing — Day 4

Verbatim record of public judicial proceedings in State of Utah v. Tyler Robinson (Case No. 251403576). Robinson is charged, not convicted; testimony below is quoted, not adopted as fact.

The fourth and near-final day of the preliminary hearing opened with argument over whether the state's Exhibit 16 messages, Discord chats, and note could be published in the courtroom and on the camera feed, with Judge Tony F. Graf, Jr. issuing a tiered ruling. FBI/SBI Agent Brian Davis then resumed, playing Lance Twiggs' immunized interview and reading the text thread in which the sender confesses. Sergeant Jennifer Faumuina walked through the rooftop "perch," the wooded-area rifle recovery, and the ATF DNA and ballistics reports. The defense called ATF firearm/toolmark examiner Samantha Karner, whose bullet-jacket comparison was inconclusive. The state rested; the day ended with a bind-over briefing schedule and oral argument set for September 1.

Speakers: Judge Tony F. Graf, Jr. · Ryan McBride (prosecution) · Lauren Hunt (prosecution) · Michael Burt (defense) · Sgt. Faumuina (witness) · Samantha Karner (witness) · Agent Brian Davis (witness) · Grunander, Ballard, Novak, Neiman, Nester, Visser & others

Appearances & Preliminary Matters

Judge Tony F. Graf, Jr. (27:04): Good morning. Thank you for the parties' patience. Court is now in session. Calling case number 251403576, State of Utah versus Tyler James Robinson. Counsel, please enter your appearances.

Mr. Grunander (27:22): Chad Grunander, Ryan McBride, Lauren Hunt, David Sturgill, Chris Ballard for the state. County Attorney Jeff Gray also present.

Judge Graf (27:31): Good morning.

Kathryn Nester (27:39): Good morning, Your Honor. Kathy Nester, Richard Novak, Michael Burt, and Staci Visser here for Mr. Robinson, who's seated at counsel table.

Judge Graf (27:50): Good morning, Mr. Robinson. And for the record, the court also recognizes the presence of Ms. Erika Kirk. Sorry. Good morning, Ms. Kirk.

Judge Graf (28:07): All right. As you've probably come to expect, I do need to read the following as it relates to today's preliminary hearing. The court is mindful of the safety and wellbeing of all parties, counsel, witnesses, court staff, and members of the public who may be present. The court is also mindful of its duty to protect and uphold the constitutional rights of both Mr. Robinson and Ms. Kirk. To serve those important interests, the court reminds all persons who will be in attendance that portable electronic devices will not be permitted in the courtroom or on the fourth floor. And this prohibition does not apply to legal counsel and support staff for the defense or the state or the media in this matter or the equipment permitted under any controlling electronic media coverage order and includes the counsel for victim representative, Ms. Kirk.

Judge Graf (29:03): I do ask the parties, the attorneys, if you will join me in turning off your ringer to ensure that we do not have any interruptions. So I am turning off my ringer and I invite you to do the same.

Judge Graf (29:20): Every person who is in attendance today and every day will be afforded the dignity and respect due to them. And pursuant to the standing decorum order by the court, all spectators shall be quiet, civil, and orderly. Spectators shall not engage in any distracting, disruptive, provocative, disrespectful, uncivil, or threatening behavior of any kind. Spectators shall not make any audible comments of any kind, shall not shake or nod their heads, shall not otherwise make any gestures during the hearing. Spectators shall not wear or display pins, buttons, signs, clothing, or photographs expressing support for or against any person related to this case or to the status of this case as a capital offense.

Judge Graf (30:14): All right. As we begin this morning, I've taken a lot of time to think about the comments made by the parties yesterday and there were additional briefings and a motion filed last night, and the court took the necessary time to readdress it and look at it and be prepared for this morning's proceedings. While I recognize especially how precious our time is, I also recognize that I need to be prepared for everything that's before me and I took the time this morning to review what was filed since we adjourned yesterday until we've came back on record. One of the motions filed last night was filed by Ms. Erika Kirk's attorney and I wish to address that. And I realize that the parties may not have had a chance, for defense or prosecution had a chance to respond to that. And before I address that, I wish to turn the time to you if you need the benefit of the record as it relates to what was filed by the attorney for victim representative Erika Kirk to this state.

Christopher Ballard (31:51): Good morning, Your Honor. Christopher Ballard on behalf of the state. We have reviewed that filing and we believe that it fully accords with our position in our filing this morning that publishing exhibits to the courtroom is entirely appropriate and indeed honors the victim representative's right to be present at this hearing.

Judge Graf (32:16): Thank you, Mr. Ballard. To defense, Mr. Novak.

Richard Novak (32:23): Thank you, Your Honor. I read the pleading. I believe that every order that this court has made to date complies with and respects the victim's rights under the Utah Constitution. I think that the rulings that the court has made the last few days do so. And I don't believe that the issues that are presently before the court going forward with the hearing with respect to exhibits in what I'll just call the 16 series interfere with any of the enumerated rights set forth in the Utah Constitution concerning the rights of a victim representative in any criminal proceeding. So that's our position.

Richard Novak (33:13): And I want to also be very mindful of timing issues because we spent a lot of time arguing without the court having the benefit of briefing yesterday. But we have witnesses we have to get to, including a defense witness who is not available after tonight. So I could of course, as Your Honor knows, say much more, but the court has all the briefing and I think we should move forward.

Judge Graf (33:39): Thank you. And as it relates to transparency and publication, does the news media wish to be heard on this issue?

Media Counsel (33:53): Only briefly, Your Honor. I've also reviewed the submission from yesterday. The court has always set this three-step process and I think taking each of those stages, admissibility, publication to the courtroom, and coverage by the in-court cameras are three separate inquiries. Of course, the media will be the party who stands here at this lectern and says we believe we should see as much as possible. We're maximalist in that way while recognizing the importance of protecting all the rights, including fair trial rights. But the idea of publishing something, of keeping something off of the cameras at the rear of the courtroom, but publishing it to those who are present here also is a meaningful step towards transparency.

Media Counsel (34:43): And to the extent that the court is not comfortable with placing something on the video feed, the media does believe that allowing the media representatives who are here and the members of the public who are here to view that, even if those watching on a live stream cannot, is a meaningful victory for transparency and we of course support that.

Judge Graf (35:00): Thank you. All right.

Richard Novak (35:05): Your Honor, the state would like to be heard on the briefing briefly.

Judge Graf (35:12): All right. So I want to address the motion filed by the attorney for the victim representative and then we'll transition to that. I'm just trying to do it incrementally so we can get it all addressed. So in regards to that, and I appreciate the position of the parties, it is important for me to hear all sides. "Article I Section 28 of the Utah Constitution recognizes important rights afforded to victims and victims' representatives, including the right to be treated with fairness, respect, and dignity and the right to be present and heard at critical stages of the proceedings. The court acknowledges the concerns raised in the motion regarding transparency and the ability to meaningfully observe the evidence presented during this hearing."

Judge Graf (36:03): "At the same time, the court has an independent obligation to manage these proceedings in a manner that safeguards the rights of all parties. That includes honoring the rights of victims and victims' representatives while preserving the defendant's constitutional rights, including the right to a fair and impartial process. The court has considered the request that exhibits be displayed in real time to the courtroom. After careful consideration, the court determines that not all exhibits will be visually displayed to the gallery and notes that it will use a tiered method as described. First, whether it will be admitted to the court for consideration as it relates to probable cause. Second, whether it will be displayed only to the gallery. And third, if it will be published through the camera to the public at large."

Judge Graf (36:57): "This ruling is not intended to diminish the significance of the victim's representative rights or concerns. Rather, it reflects the court's responsibility to regulate the presentation of evidence in a matter consistent with the integrity of the proceedings and the fair trial rights implicated in this manner. The manner in which evidence is displayed remains in the court's discretion. That discretion must be exercised in a manner that is appropriate and appropriately balances Mr. Robinson's constitutional rights, Ms. Kirk's rights as a victim representative, and the court's obligation to conduct the proceedings that are fair, orderly, and appropriately transparent. Transparency is an important principle, but it must be maintained in a manner consistent with the constitutional rights and protections afforded to all parties. The court does not make a blanket ruling as it relates to any exhibit. And as previously stated, each exhibit will be afforded its own due in weighing whether it shall be published to the courtroom or beyond or not."

Judge Graf (38:16): And that concludes the court's ruling on that motion. All right, Counsel, the last matter as it relates to the briefing, I'll hear that and there is a slight edit to, and I'm not sure when the state wishes to publish state's exhibit 16. So turning to the state, do you wish to be heard about the motions filed last night prior to the publication of exhibit 16? Again, it's your choice on how you move forward. I just want to see which order you want to go.

Christopher Ballard (38:55): We do want to be heard on the briefing from last night and specifically about exhibit 16. I'm understanding Your Honor has an additional edit to that. Is that correct?

Judge Graf (39:06): I do. And there might be a value in hearing that, so that may or may not change your positions. So let me just put that on the record and then I'll hear from you. I just want to make sure you're able to be afforded everything. So as it relates to the edits last night, I believe it was between six minutes and 57 seconds, and 20 minutes and 29 seconds, which is not to be played. And then 32 minutes and 55 seconds to 35 minutes and 47 seconds, which is not to be played. And I believe that what I received reflects that. And is that the understanding of the parties?

Richard Novak (39:50): Yes.

Judge Graf (39:51): All right. The state has said yes. The defense? I'm not saying if you agree with it. I'm just saying does it reflect the timestamps?

Richard Novak (40:00): May I have a moment?

Judge Graf (40:01): Absolutely.

Richard Novak (40:35): Okay. So I'll answer that question directly. The state sent us a copy of the edited video. The redactions of the audio were exactly as the court ordered, but we noticed that the video which followed ended up being inconsistent with the redactions of the audio, so I brought that to the state's attention last night. I believe that they ultimately forwarded to the court what I'll call version two of the redactions, which redacts the video that would have made the audio redactions sort of superfluous or ineffective. So that's sort of where we are. But we may be not communicating with each other about the same issue. I'm not sure.

Judge Graf (41:21): Well, I just want to make sure that in regards to what was to be cut out comports with those timestamps I just gave.

Richard Novak (41:29): It does. Plus, the parties believe that additional video needed to be cut out to match the court's intentions with respect to the audio.

Judge Graf (41:38): Right. And this is where I'm going to next. Mr. Ballard?

Christopher Ballard (41:42): Yes, Your Honor. I think we're on the same page. We did, in conjunction with discussions with the defense, prepare. First of all, we prepared the redacted video as Your Honor ordered. Then after discussing with the defense, we prepared a second version that still maintained the audio redactions as the court ordered, but we took out the video portions that the defense brought to our attention.

Judge Graf (42:09): All right. And I didn't see that, and this is the court's own independent finding after spending significant time last night reviewing it. So I'm requesting video-only redaction between 20 minutes and 29 seconds, and 25 minutes and 23 seconds. And so what I looked at was what was on-screen. So any video showing anything other than Mr. McBride and Lance Twiggs was to be redacted with the exception of the screenshots of the images pulled from the surveillance video and the FBI bulletin, which I believe was also briefly displayed.

Richard Novak (43:01): I think we're all on the same page based on what the court just said.

Christopher Ballard (43:16): Your Honor, I think we have just a one-second difference. Our timestamp is 25:22 of the additional edited version, but I think it still omits the video portion that we're discussing.

Judge Graf (43:32): All right. Well, it's a good day when we are literally on the same page. I'm glad that within one second we are all in agreement about this. And it sounds like you're one step ahead of the court. I was going to say that if you had it, you simply turn off the monitor for that section. But if you've already made that change, then all the better. There are two additional changes as well. And this is very short and so I'll leave it to the state if you wish to just in real time pause and fast-forward or wish to redact it. I'll leave it to you. So the additional requested audio and visual redaction, so this is not to be played whatsoever, is 27 minutes, 18 seconds to 27 minutes and 25 seconds. And the second is 28 minutes and 11 seconds to 28 minutes and 18 seconds.

Christopher Ballard (45:03): And, Your Honor, while we're talking about additional redactions... Let me approach. When Your Honor made his ruling yesterday afternoon, it wasn't entirely clear the basis for these redactions that the court proposed. The state's understanding was that those additional redactions were based on the potential that the video 1102 would be showing duplicative evidence, would be displaying evidence that would be duplicative of future exhibits. And then also potentially a concern about admissions by the defendant. Portions that the court has ordered to be redacted do not have any of those concerns as far as the state's view of that evidence, and I would like to be able to point the court to those. We've got two brief portions that we believe don't implicate those concerns and should not be redacted.

Christopher Ballard (46:48): Okay. Well, first of all, at the very, very bottom of page 10, beginning with the words, "Was he?" And then over to page 11 down to timestamp 16:46. That portion is not cumulative of additional exhibits and it contains nothing that could be classified as an admission by the defendant. That's the first portion.

Christopher Ballard (48:07): That's the first portion. And then the second portion that we would ask not be redacted is a small portion of page 19. And it begins... Let's see. It would be the fifth paragraph down, Mr. McBride stating, "Okay." And then ending at timestamp 33:40. Again, that's not cumulative of any anticipated exhibit and nor does it refer to any admission by the defendant.

Richard Novak (49:12): Thank you, Your Honor. With respect to the first of the two portions that Mr. Ballard referenced, I want to be totally transparent with the court, of course, that that was not a section that we asked the government to agree to redact. That is a section that the court independently determined was appropriate for redaction under the various principles that the court has enunciated. So I just want to be transparent about that.

Richard Novak (49:44): The second portion that Mr. Ballard addressed, which is on page 19, we did suggest, and it is in our highlighted redacted transcript. And the court agreed with us. This is not relevant. This is not admissible under 403. I don't understand how this questioning by Mr. McBride and the answers to these questions by Mr. Twiggs, and now I'm going to quote the Utah Rule of Evidence, "Has any tendency and reason to make a fact of consequence more or less true." That's the relevance question. So I understand that the court has said, "I can make determinations of which portions of this transcript to rely upon." But from my perspective, what the state is asking the court to do is to broadcast a portion of the transcript which we are saying is not relevant. And to the extent it has any relevance is significantly outweighed by undue prejudice.

Richard Novak (51:10): I am not Mr. Twiggs' representative, but I think as a witness who has counsel, there might be something that Mr. Twiggs' counsel would want to say about this as well. I don't know what it would be, but my firmly held belief is it would be consistent with what I'm saying, which is that it is neither relevant nor probative of anything of significance, especially in compared to the undue prejudice. Thank you, Your Honor.

Christopher Ballard (51:53): Thank you, Your Honor. As Mr. Novak recognized, Mr. Twiggs was represented during this statement. His counsel knew that this was being prepared to be produced in court and his counsel made no objections to this part of the interview. And this is critically relevant. It provides important foundational information about Mr. Twiggs and identifying information about him. And then also, it's very relevant to the enhancement that we have charged.

Judge Graf (52:39): All right. Thank you. Anything further before the court rules on these two requests? All right. In reviewing the first section, again, citing to page 10 ... starting with, "Was he?" And ending at 16:46 with the last word, "Asking," after hearing and considering what has been argued, the court agrees that in applying a balancing test and as it relates to transparency, to ensure the court is taking a very narrow approach in what is or is not published to the public, that this is permissible... So I am ruling that that may be played and published through all mediums in the courtroom and via video.

Judge Graf (55:38): All right. And specifically to 33:27, the court stands by its original ruling. There are several reasons why the court... The court's ruling isn't whether it's relevant or not. It's whether it should be published or not. And again, as previously stated, the entirety of Exhibit 16 the court is receiving without any redactions or edits. The court is considering it as it weighs probable cause. However, for publication, the court finds that the requested section from roughly after 32:55 starting with, "Okay." Ending at 33:27, the court finds that there are interests served by not publishing this to the courtroom or to be broadcast.

Judge Graf (56:49): And I recognize Mr. Novak's statement as it relates to what Mr. Twiggs' counsel may or may not assert, but the court finds independently that this portion shall not be transmitted into the courtroom because of certain statements made in there that do not serve the interest of justice for publication. However, the court finds from 33:27 starting at, "Okay," until just before 33:40 ... may be published. Did that notation make sense?

Judge Graf (57:55): And so this is the appropriate balancing of being transparent while at the same time maintaining the constitutional rights or balancing the constitutional rights of all parties and what is appropriate for publication. And this may be published not only to the gallery, but to the media as well that goes beyond the gallery itself. All right. Anything further on state's exhibit 16?

Christopher Ballard (59:00): Thank you, Your Honor. We would just like to briefly emphasize a few points in the briefing that we filed early this morning. Last night, the defense raised the issue of publishing admissions by the defendant or confessions. They cited to one sentence from the United States Supreme Court opinion in Estes v. Texas that relies on the Rideau v. Louisiana case. And that one sentence in Estes has no precedential value on the issue that's before the court today. Estes cited to the dissenting opinion in Rideau, which is very curious because that dissenting opinion, Rideau was a change of venue case. And what the dissenting opinion held is that the court properly refused to change venue in that case even though the defendant's confession had been televised multiple times. So it's puzzling that that's what the Estes court would rely on as supposedly constructing some kind of rule about publishing a defendant's admissions.

Christopher Ballard (01:01:43): In Rideau, what the police did was orchestrated a recording of an uncounseled, unmirandized police interrogation. The police recorded that interrogation. It was leading questions. They recorded the defendant answering those leading questions. And then they immediately, it was the police that immediately released that recording to the press who then publicized and televised that. The defendant confessing to police, answering the police's questions. That's not the types of statements that we're dealing with in this case. What we're dealing with are statements that defendant voluntarily made to close friends and associates of him and his roommate.

Christopher Ballard (01:03:42): I think the most interesting case is the Sixth Circuit case because there it dealt with essentially the issue that we're dealing with here, which is publication of a defendant's statements during a preliminary hearing. And that case is especially important, the Delisle case, because there that confession was ultimately held to be inadmissible. So an inadmissible confession was played to the public and interested media members in a way as if it had been played in a preliminary hearing. And even though that confession was subsequently publicized and ultimately held to be inadmissible at trial, the court did not hold that that was a violation of the defendant's fundamental rights there, that the court could deal with that through voir dire. It was not inherently prejudicial.

Christopher Ballard (01:05:34): I think it's also important to point out that transparency is critical in this case. This court's noted repeatedly the extensive media coverage. That's why we're having to take this additional time in these hearings to be able to discuss these issues. And transparency is critical to the state's right and the people's right to a fair trial where there's a vacuum in the evidence. It just fuels speculation. And then finally, as has already been argued, it's critical to the victim's right to be able to attend the hearing. That's a hollow promise if the victim representative is only able to be here physically, but then is shielded from some of the evidence. Does the court have any questions?

Judge Graf (01:06:32): No, not at this time. Mr. Novak?

Richard Novak (01:06:40): Thank you, Your Honor. The parallel between Mr. Robinson's case and the Rideau case is this. Mr. Rideau's confession was televised by an act of the state. It wasn't a confession broadcasted through a courtroom. It was a confession made to law enforcement and then broadcasted by action of the state. And that's what gives rise to the constitutional problem, which is its state action which violated Mr. Rideau's right to a fair trial.

Richard Novak (01:07:20): This court has granted the media's request to electronically publish this entire proceeding, that state action. And the state has supported the media's request over Mr. Robinson's objection. So that is also state action. So that's the parallel. If there were no cameras in this courtroom, we would not have a problem. And in fact, Ms. Kirk's attorney's briefing seeks a remedy which has nothing to do with the cameras in the courtroom.

Richard Novak (01:08:00): What Ms. Kirk's counsel seeks is the opportunity for people in the courtroom to see the evidence. So the state is going even further than Ms. Kirk's counsel. The state wants to publish what it calls confessions in the same way, essentially that the state published Mr. Rideau's confession. Now, the only other thing I want to talk about is that Mr. Ballard's correct that the blanket rule that there is unrebuttable prejudice that's stated in Rideau... But it was in the Skilling case, a Supreme Court decision in 2010, where the court said, "Yes, we really are going to let judges decide whether potential juror exposure to pretrial publicity makes them unable to serve." But there is an extreme case. That's not my language. That's the Supreme Court's language in Skilling. There are extreme cases of pretrial publicity where prejudice is going to be presumed.

Richard Novak (01:09:39): And I believe that this court has already made findings over the last nine months that this is an extreme case with respect to the quantum of pretrial publicity, the way in which it's being monitored by the public, the speed with which these proceedings, even this week, are being dissected and broadcast through all of the technology channels that we have. So it's our view that this is the extreme case that the Supreme Court talked about in Skilling. We wouldn't have any state action giving rise to this problem if we didn't have cameras in the courtroom. And that's why we think that exhibits 16.1, 16.2, and 16.3 need to be managed in the way we've asserted. Thank you, Your Honor.

Christopher Ballard (01:10:58): Thank you, Your Honor. Just briefly, Mr. Novak has misrepresented the state's position. We're not going beyond what the victim representative has asked for. As we made clear in our briefing this morning that we filed this morning, we are asking that these exhibits, unredacted, be published in the courtroom. Not electronically, but they'd be published in the courtroom. It's not the camera in the courtroom that's the problem. The issue here is the public's right... This is a public hearing. The court's ruled that it's a public hearing. Kearns-Tribune recognizes that preliminary hearings are public, and the public that is here in this courtroom should be able to see the exhibits that are admitted and that the court is going to rely on. And that is even more important to the victim representative's right to be able to be present and to observe these proceedings. Thank you.

Media Counsel (01:12:04): Your Honor, if I may, I'll be brief. I want to begin by saying thank you to both the parties, to the state, to the defense, to the court... The only thing that I want to say with respect to this question about admissions or confessions is something that I hope will help the court. The court is looking at Rideau. It's looking at Estes. These cases from 50 or 60 years ago in a different media environment under the United States Supreme Court. I want to urge the court to do what the court has done before and that's to look at Allgier. This is a 2011 Utah Supreme Court case... a case that has striking parallels to this one. In the Allgier case, there was a murder trial, and the court received a letter, a notarized letter from an inmate saying, "The defendant in this case has confessed to me..." That was provisionally sealed for many of the same reasons that the court could conceivably consider keeping some of this information from the public.

Media Counsel (01:13:43): The court did a two-step analysis. It began by trying to determine whether or not there was a presumptive right of access to that document. The answer is yes. There is a presumptive right of access to this proceeding as well... Notably in paragraph 17 of that Allgier case, it stressed something that we have said over and over again, which is much of the information that would be revealed through that letter had already become public at that point. And the idea of sealing a document that contained allegations or details that were already in the public sphere would only create the impression that information was being kept from the public when it was not.

Media Counsel (01:14:24): We stressed what we did yesterday. As we understand it, much of the information that is now under consideration for the court is already in the public sphere. The right case to analyze this under is Allgier... and we ask the court for that reason to grant access, both publication to the courtroom, and in our view, publication on the cameras as well. But we again do recognize that that middle step is a meaningful one. And if the court were to decide that that information be shared in the courtroom but not on the general feed, we would recognize that as well as a meaningful step towards transparency in this case.

Jeffrey Neiman (01:15:25): Good morning, Your Honor. Jeffrey Neiman on behalf of the Kirk family. And we appreciate the court is trying to balance here, but the Kirk family has waited 10 months for this hearing. And they have a right to be here and they have a right to hear the evidence. They have a right to see and feel what's going on in this courtroom. And they want to understand, Judge, what you are viewing. They want to see the evidence. And we understand you have to balance, but at a minimum, this courtroom needs to be open for the evidence to be displayed openly in this courtroom for them to see it. The Utah Constitution gives them the right to be here, and to be here and not to see the evidence, what's the point of being here? We ask you to let the evidence be seen in the courtroom, please. Thank you for your time.

Judge Graf (01:16:41): All right. And just to be clear, as it relates to the state's request, well, so under the three factors or the three levels, admission to the court, publication to the gallery, and then publication beyond the gallery, what is the request for each of these exhibits?

Christopher Ballard (01:17:20): Your Honor, we are asking for admission. We are asking for publication within the courtroom, but not publication electronically to the electronic coverage in the courtroom of these proceedings. We do want to make clear that once the exhibit is admitted, that the witness will be reading from portions of the exhibit. But again, we're not asking that that be displayed in any way so that those outside the courtroom could capture that and reproduce it.

Judge Graf (01:18:04): Thank you. The court just wants to... And just for clarification, 16.1 is the text messages, 16.2 is Discord chats, and 16.3 is photograph of notes.

Christopher Ballard (01:18:22): That's correct, Your Honor.

Judge Graf (01:18:23): All right. And finally, and this hasn't really been addressed by any party, but it is a factor the court's weighing. How much of 16.1 has been published to the public prior to these proceedings? ... I just want to make sure that that's clear because that wasn't really addressed in the briefing and it's a factor.

Christopher Ballard (01:23:43): Your Honor, State's Exhibit 16.1 is 18 pages total of photographs of text messages. It's approximately five and a half pages of those 18 pages that are reproduced in the information. Thank you for your patience.

Jeffrey Neiman (01:24:57): This has not been easy, as you can imagine. And I think the family deserves to see the evidence that's been gathered in this investigation. They deserve to know what happened to Charlie. So we urge the court to please again display the evidence here in the courtroom.

Judge Graf (01:25:19): Thank you. Thank you to all parties... And so this is the ruling as it relates to the briefing. And I know it wasn't a formal motion, but I'm just trying to be thorough in my approach. This matter comes before the court on state's request to publish exhibit 16.1, 16.2, and 16.3 during the preliminary hearing and defendant's objection to that request. The exhibits consist of text messages between Mr. Robinson and a witness, Discord messages between Mr. Robinson and others, and a written note the state attributes to Mr. Robinson.

Judge Graf (01:27:28): On the present record, the court is not persuaded that the publication of exhibit 16.1, 16.2, and 16.3 during the preliminary hearing creates the type of inherent or presumed prejudice that requires categorical restrictions under Rideau, Estes, and Skilling. Unlike the broadcast interrogation in Rideau, the exhibits at issue are written communications allegedly made outside police custody and are being offered in the ordinary course of a judicial proceeding. That distinction does not eliminate the possibility of prejudice, but it weighs against treating publication of the exhibits as presumptively unconstitutional. The court further finds that any potential prejudice arising from media coverage may be addressed if necessary through the appropriate trial procedures including voir dire and any other measures warranted before trial.

Judge Graf (01:28:39): This ruling is limited to publication of the exhibits during the preliminary hearing and does not determine their admissibility at trial. And, I insert, if one occurs, or foreclose any later request for relief based on a more developed record. Accordingly, the defendant's objection is overruled. As it relates to this preliminary hearing, the state may publish Exhibits 16.1, 16.2, and 16.3. And the court is authorizing, with the exception of the third-to-last page on Exhibit 16.1, because it contains information including a phone number and address, to be redacted before publication in the courtroom. But as it relates to 16.1, because it was publicly distributed by the state, that 16.1 in its entirety may be broadcast through electronic media. That is the ruling of the court. Counsel, how would we like to proceed?

Christopher Ballard (01:29:54): Your Honor, just to clarify the record, the state has redacted that portion. We anticipated that that needed to be redacted in 16.1... We believe that the best way to proceed now is we have the edited video ready that comports with the additional edits that the court has ordered. We propose that we take a break so that we can show that to the defense, make sure we're on the same page, and then we anticipate coming back and playing Exhibit 16.

Judge Graf (01:30:28): All right. I appreciate the caution being exercised by all parties. We'll take a 15 minute break. Come back at 10:50. Court is in a brief recess.

(The court recessed. After returning, the state reported continued technology issues and took additional time to show the final edited video to the defense. Court resumed at 02:08:54.)

Direct Examination — Agent Brian Davis (resumed)

Ms. Hunt (02:09:18): We have reviewed Exhibit 16 with defense and it comports with the court's order. At this point, we would like to put Agent Davis back on the stand and continue with displaying that, publishing that.

Judge Graf (02:09:33): All right. Agent Davis, if you'd like to come forward, I remind you, you're still under oath... Ms. Hunt, your witness.

Ms. Hunt (02:09:53): And just for the record and the court's benefit, we have made the edits that the court has ordered. We have shown them to defense. Pursuant to the timestamps that the court ordered... there are sometimes large gaps of just black, empty, silent space. When there are large gaps, we will fast forward. Some of those are short enough that we'll just let it play if the court is okay with that.

Ms. Hunt (02:10:29): So at this time, we would move to publish on the monitors State's Exhibit 16.

Judge Graf (02:10:37): All right. And to the media there is a monitor for your benefit right there next to you. For the camera, there is one for that direction as well as for the gallery.

Video — Exhibit 16 (Lance Twiggs' immunized interview, April 20, 2026)

(State's Exhibit 16 was played. In it, an FBI/DPS interviewer places Lance Twiggs under oath, notes he has been given a federal and state agreement granting him immunity, and questions him about September 10–11.)

Interviewer (02:11:04): This meeting is to use your statement here instead of your testimony at a preliminary hearing. You understand that? ... First, you do solemnly swear or affirm that the evidence you shall give in this issue shall be the truth, the whole truth, and nothing but the truth so help you God?

Lance Twiggs (02:11:32): Yes.

Interviewer (02:11:33): I also need to notify you that ... the statements you are about to make may be presented to a magistrate or a judge in lieu of your sworn testimony at a preliminary examination. Any false statement you make ... may subject you to criminal punishment as a class A misdemeanor... In addition, I just want to make sure that our recording here is clear that you've also been given a federal agreement and a state agreement granting you immunity from prosecution for materials that you discuss now. Do you understand that?

Lance Twiggs (02:12:34): Okay. My name is Lance Twiggs.

Interviewer (02:12:40): And do you know Tyler Robinson? ... And this is the same Tyler Robinson that's been charged with the shooting of Charlie Kirk?

Lance Twiggs (02:12:55): Yes. I think it was 2023. I've known him longer than that though. That was I think the first time I met him in person.

Interviewer (02:13:04): Okay. And will you describe your relationship with Tyler, when you first met him anyway.

Lance Twiggs (02:13:13): When I first met him, I didn't know him super well. He was just a new roommate. So I knew he knew my friend group and I knew he liked playing games, but that's about it when he first moved in.

Interviewer (02:14:26): All right. So you said when you first met, you were roommates? And then at some point your relationship progressed to something more than just roommates, is that right? When was that?

Lance Twiggs (02:14:44): I think we started dating two or three months after he moved in.

Interviewer (02:14:48): Okay. And where did you live at that time?

Lance Twiggs (02:14:52): St. George in an apartment complex. ... [It's the same place we lived on September 10th.] No. Separate rooms.

Interviewer (02:15:11): And at that time, let's say September of 2025, what were you doing with your life? Were you working, school?

Lance Twiggs (02:15:21): I was working. I was doing bathtub and shower repair and stuff and new construction. ... [Tyler] I think he was both working. I think he was working for an electrician company then, and he was also in a trade school for being a higher ranking electrician.

Interviewer (02:16:18): Okay. Let's jump to September 10th. Did he spend the night in the apartment the night of September 9th into September 10th? ... Do you know when he left the apartment on September 10th?

Lance Twiggs (02:16:34): Into September 10th. Yeah, he did. Yes. ... I don't know an exact time. I just know he left early. I heard him leaving and he just said he had a long drive to work that day, so he was leaving early. ... I would've thought it was 5:00 AM because that's when an early work day was for him, but it was probably more like 4:00.

Interviewer (02:17:21): All right. So what time did you get up on September 10th?

Lance Twiggs (02:17:29): Probably 12:00 to 1:00 PM.

Interviewer (02:17:36): And did you hear from Tyler? Did he call or text you before then?

Lance Twiggs (02:17:42): No, he sent that message in the group chat I mentioned, but he didn't message me directly at all that day. ... [First I heard from him] It was at 11:00 with that automated message.

Interviewer (02:18:28): He asks you here, "Remember how I was engraving bullets?" Was he engraving bullets before this?

Lance Twiggs (02:18:32): Yeah. I don't remember exactly when, but he had said he was planning to go hunting with his family. And he asked me if we had a Dremel, because he said he wanted to engrave messages on bullets. And I just told him where Dremel was and I told him to make sure he doesn't set off a bullet on accident in the house, but I didn't really think about it until then.

Interviewer (02:18:59): How long before September 10th was this that he asked about the Dremel?

Lance Twiggs (02:19:24): I don't remember, because he'd been talking about the hunting/camping trip for a couple months... It would've been, I'd say at most a month before this was when he was asking.

Interviewer (02:19:30): Okay. You talked about the note that he left. I want to bring this up... The notes have been titled 16.3 with a note and this is Bates number 58. Do you recognize that on the screen there? What do you recognize it as?

Lance Twiggs (02:20:20): That was the note under his keyboard that he was referring to in the first text of that chain. ... [I found it] On his desk underneath his computer keyboard. ... I believe I just put it back down on the desk after I took a picture of it. ... [the time I read it was] around 11:00 or so on the 10th.

Interviewer (02:21:18): Okay. And now, I want to go to what's been titled 16.2. And do you recognize this series of messages here?

Lance Twiggs (02:21:32): Yeah, that was the server, like his friend that I was mentioning. ... [It's my phone] Yeah. ... [with] the big crack up at the top. ... this is Discord.

Interviewer (02:22:00): And who are members of this server? I don't want names, just generally. Who are these people and members of this group?

Lance Twiggs (02:22:05): This is his friend group. They played D&D together every week. ... [Tyler Icum is] Tyler Robinson. ... [Judd, Barnaby, Marina, DM are] others that are members of the server. DM means Dungeon Master. So most of them are names they're using in the game they're playing currently.

Interviewer (02:22:52): Got it. Yeah. It looks like the last text from Tyler, it looks like it's 8:00 PM. And do you know what day this would've been? 8:00 PM on the 10th, or the 11th?

Lance Twiggs (02:23:13): I would think that would be the 11th... because I don't think on the 10th that he messaged anyone before me at 11th. ... [He turned himself in on the 11th.] I thought so, yeah.

Interviewer (02:24:16): Now September 11th, what time did ... Or did you see Tyler on September 11th? When did you first see him?

Lance Twiggs (02:24:58): Yeah, I saw him when I woke up. Like I said, he was up and around doing a lot of stuff around the house. And then I think I saw him after that message where I said I'll come home and say I'm doing laundry because I didn't want him going to my parents' house right then when he said there was probably cops outside. So I went back home and it was just him there and I said bye to him and then he drove off, so I just went back to my parents' house.

Interviewer (02:25:32): So he acted erratically. Was he pacing? Was he just sitting down, relaxing? ... And did he talk about what he had done?

Lance Twiggs (02:26:16): No, he was walking around a lot. ... Didn't go into detail. I just asked him in person if what he said was true the night before and he said it was. He started crying a little bit and said he wishes he hadn't done it and then kept going around and just doing stuff I think to keep himself busy or distracted or something.

Interviewer (02:26:40): Okay. Did he talk about what he was going to do next?

Lance Twiggs (02:26:44): And then eventually said that he would talk to his parents or turn himself over.

Interviewer (02:27:28): Before he came home, had you seen the press releases, any of the media on this? And had you seen the images that were released of the suspect?

Lance Twiggs (02:27:44): I'd seen one Instagram link a friend of mine had sent in our group chat, but I hadn't really looked into it at all. ... I did the next day. I don't think I saw any on the 10th.

Interviewer (02:27:48): I'm going to show you a couple of those images. Okay, I'm on the FBI's website... you see these, looks like there's two rows of three images. Do you recognize the person in these images?

Lance Twiggs (02:28:23): I wouldn't say with 100% certainty just because of camera quality, but that looks like him in terms of the shoes he's wearing, the sunglasses. I don't think I'd specifically seen him wearing that hat, but he was usually wearing a hat and then jeans. So it definitely, especially the bottom, the last two definitely do look like him. ... They do look like Tyler Robinson.

Interviewer (02:29:18): Okay. All right. I want to back up a little bit now... So did you game with Tyler? What kind of games?

Lance Twiggs (02:29:37): We played some just kind of party games together, anything that would be multiplayer with a group of friends. There was one game he really liked called Sea of Thieves... We played some co-op games... Way back when, when I was just out of high school, when I first knew him online, we played some shooting games together, but I didn't know him very well.

Interviewer (02:30:19): Okay. Did you and he ever talk about politics?

Lance Twiggs (02:30:23): He did more than me. I still don't really keep up with politics very much. He'd usually talk about stuff he heard on the radio on his drive to work in their work car... but I wouldn't say super consistently because it wasn't a topic I really contributed much on.

Interviewer (02:30:51): How about Charlie Kirk? Did he ever talk about Charlie Kirk?

Lance Twiggs (02:30:54): I personally had never heard him talk about Charlie Kirk before specifically.

Interviewer (02:30:59): Okay. How about political issues? So did you ever talk about gender identity issues and LGBTQ rights?

Lance Twiggs (02:31:12): No, not really. Usually, if he did talk about politics stuff, it was relating to Trump or current policies being issued or voted on, I think, but yeah. ... [going by Luna] To some people, yeah, but not as an overall thing.

Interviewer (02:32:43): Okay. The Dremel that you talked about, you said he had asked for that, is that right? And had he told you it was to inscribe bullets? And so did you have a Dremel then?

Lance Twiggs (02:33:15): Yeah. Our apartment, we had a section where we kept all our random tools for household stuff in our lower basement level pantry, so yeah. ... I just told him where it was.

Interviewer (02:33:34): Okay. I'm going to go ahead and end the recording for the 11:02 purposes.

(End of Exhibit 16 video.)

Agent Davis on the messages, note, and photos

Judge Graf (02:33:59): All right. That concludes state's exhibit 16. Ms. Hunt?

Ms. Hunt (02:34:03): Thank you, Judge. Agent Davis, I asked you yesterday, but I want to remind the court and those present, were you physically present at the interview we just watched in state's Exhibit 16?

Agent Davis (02:34:16): Yes, I was there.

Ms. Hunt (02:34:35): During that interview, was Mr. Twiggs shown or referenced certain items of evidence? What types?

Agent Davis (02:34:47): It was the text messages between himself and Tyler Robinson, a Discord chat messages and a handwritten note.

Ms. Hunt (02:35:08): And then we also saw in the video he was also shown the FBI press release photos of the potential suspect? ... Have you reviewed all of those items as part of the investigation?

Agent Davis (02:35:11): That's correct, yes. Yes, I have.

Ms. Hunt (02:35:30): I want to put just on the witness's screen what's been marked for identification as state's Exhibit 16.1... Do you recognize this? What is it?

Agent Davis (02:36:01): This is a photograph of screenshots of text messages between Tyler Robinson and Lance Twiggs. This is a photograph of Lance's phone. ... Yeah, these are photographs directly from Lance's phone.

Ms. Hunt (02:36:26): How do you know that?

Agent Davis (02:36:28): In Lance's first interview, he's showing the FBI agents these text messages, describes them to the agents. And at that time, his phone was photographed.

Ms. Hunt (02:36:46): And you testified, I believe yesterday that Mr. Twiggs' first interview was the morning of September 12th, 2025. Is that correct? Were you physically present at that interview?

Agent Davis (02:36:59): That's correct, yes. No, I was not there. Yes, I've spoken to one of those agents that was there.

Ms. Hunt (02:37:31): Do you know who took these photos?

Agent Davis (02:37:34): Yes, it was Agent Larson with FBI. ... [During the first interview] physically, he shows them the phone and then allows them to photograph the phone.

Ms. Hunt (02:38:04): Does he refer to any particular features of the phone that allows him to make that identification?

Agent Davis (02:38:12): The second interview, he refers to the large crack in the upper left screen. So he identifies that from his second interview that was given on April 20th.

Ms. Hunt (02:38:40): Was he asked how Tyler Robinson is saved in his phone as a contact? ... Did you check the number that Mr. Twiggs gave as Tyler Robinson's phone number against law enforcement records? And do they match?

Agent Davis (02:39:08): Yeah, just as Tyler. ... Yes, they match.

Ms. Hunt (02:39:39): As part of the investigation, was a Cellebrite extraction performed on Mr. Twiggs' phone? Did you personally review that extraction?

Agent Davis (02:39:48): Yes, it was. Yes, I have.

Ms. Hunt (02:39:51): And according to that extraction, did Mr. Robinson and Mr. Twiggs exchange text messages on September 10th through 11th, 2025? What time was that first text sent according to the Cellebrite extraction?

Agent Davis (02:40:06): Yes, they did. The first text was September 10th at 11:00 PM.

Ms. Hunt (02:40:13): All right, Judge, I would move to admit state's Exhibit 16.1. And then pursuant to court order, I would move to publish it to the monitors.

Judge Graf (02:40:29): Mr. Novak?

Mr. Novak (02:40:31): We have no further objections beyond those that the court of course is very familiar with at this point in time.

Judge Graf (02:40:38): All right. I'll note the standing objections made by defense. Those objections are overruled. This 16.1 is admitted into evidence and may be published to the gallery as well as electronically distributed through the camera.

Ms. Hunt (02:40:58): All right. Agent, I'm not going to go through every single message, but I do want to have you read aloud certain portions of them... here we're looking at page one of state's Exhibit 16.1. If you could read a little more than halfway down where it begins Wednesday, 11:00 PM.

Agent Davis (02:41:34): Yes. So this would've been from Tyler. It says, "Drop what you're doing. Look under your keyboard."

Ms. Hunt (02:41:42): And I apologize, let me stop you there. How do you know that message would've been from Tyler Robinson?

Agent Davis (02:41:47): So any of the messages in gray would be from Tyler and message in blue would be from Lance. That's just the way the iPhone distinguishes the messages. And also, Lance, in his interview also acknowledges that who was saying what. ... [At the top] That's Tyler.

Ms. Hunt (02:42:13): So read that again, starting from look under the keyboard.

Agent Davis (02:42:20): So after that, then Lance responds, he says, "What?" And then he says, "You're joking, right?" And then Tyler says, "Fuck, I tried to delete that."

Agent Davis (02:42:39): And Tyler says, "I'm still okay, my love, but I'm stuck in Orem for a little while longer yet. Shouldn't be long until I can come home, but got to grab my rifle still. To be honest, I had hoped to keep this secret till I died of old age. I am sorry to involve you." And then Lance replies, "You weren't the one who did it, right?" And Tyler says, "I am. I'm sorry." Lance says, "I thought they caught the person." And then Tyler says, "No, they grabbed some crazy old dude and interrogated someone in similar clothing. I had planned to grab my rifle from the drop point shortly after, but most of that side of town got locked down. It's quiet almost enough to get out, but there's one vehicle lingering."

Agent Davis (02:43:32): Lance says, "Why?" And Tyler says, "Why did I do it?" And Lance says, "Yeah." Tyler says, "I had enough of his hatred. Some hate can't be negotiated out. If I'm able to grab my rifle unseen, I will have left no evidence. Going to attempt to retrieve it again. Hopefully they have moved on. I haven't seen anything in the news about them finding it. Will update you shortly. Will update you by midnight." And then Lance says, "All right, stay safe. How long have you been planning this?"

Agent Davis (02:44:08): And Tyler replies, "A bit over a week, I believe. I can get close to it, but there is a squad car parked right by it. I think they already swept that spot, but I don't want to chance it." ... "Again, I'm sorry for roping you into all of this. You shouldn't have to worry about this." And Lance replies, "Does anyone else know?" Tyler says, "Not to my knowledge."

Agent Davis (02:45:16): Tyler says, "Guess I'm just sitting in my car watching reels for another hour, hoping this guy fucks off." And Lance says, "Are you okay still?" And Tyler says, "Yes. Checking spot again now. Will ..."

Agent Davis (02:45:38): "Will update soon." He continues, "The squad car was moved further away enough that I should be able to move in. I backed off because I though I heard footsteps, maybe a foot patrol, but the crickets here are so fucking loud. Going to see if the road closer to campus is open so I can drive past and check shit out. Probably still closed off though. Getting worried, hard to know for sure, but I'm not finding my rifle. Could be in the wrong spot." Lance says, "Do you think they found it?" And Tyler says, "Don't know, they haven't published anything if they have." And then Lance says, "Why did you leave it behind?" ... "Originally. Also, does it have a serial number?"

Agent Davis (02:46:40): So Tyler continues, "IDK if it had a serial number, but it wouldn't trace to me. I worry about prints. I had to leave it in a bush where I changed outfits. Didn't have the ability or time to bring it with."

Agent Davis (02:47:11): So Lance says, "Was your change of clothes there, or was that also gone? ... Anyway, you could replace the gun or would he notice?" And then Tyler says, "Only thing I left was the rifle wrapped in a towel. I'll bet that canine sniffed it out. A little snitching bastard. Replaced it unlikely. I don't fully know what the gun was, because it was old as shit and Gramps did some modifying. There was a four digit serial on it. God only knows who it's registered to. Hopefully some dead guy who gave it to grandpa." And he continues, "Remember how I was engraving bullets? The fucking messages are mostly a big meme. If I see, Notices bulge, UwU, on Fox News, I might have a stroke." ... "All right. I'm going to have to leave it. That really sucks."

Agent Davis (02:48:24): Yes. So Lance says, "Do you need it for hunting?" And Tyler says, "No, my dad wanted to use it to use a high caliber for the rifle hunt. Judging from today, I say Gramps' gun does just fine. IDK. I think that was a 2K scope." Lance says, "Geez." And then Tyler says, "OMW, home 3.5 hours." Lance says, "Drive safe." And then Tyler says, "Delete this exchange."

Agent Davis (02:49:25): Okay. So this is Tyler. "I'm going to turn myself in willingly. One of my neighbors here is a deputy for the sheriff. We hope to keep things sort of quiet here."

Ms. Hunt (02:49:35): We mentioned a Cellebrite extraction of Mr. Twiggs' phone. Do you know what time that last text was sent?

Agent Davis (02:49:52): Yeah, I recall it was just before 8:00 PM on September 11th. It was I think 7:42 PM is my recollection. ... September 11th was when he turned himself in. It would've been September 11th.

Ms. Hunt (02:50:21): All right. I'm going to show just for the witness State's Exhibit 16.2... Do you recognize this? What is it?

Agent Davis (02:51:08): These are the Discord messages that Lance had talked about. ... So Lance in the first interview with FBI shows the photos were taken by Agent Larson. And then these images are shown to Lance during his second interview and he confirms that these are those same messages.

Ms. Hunt (02:51:45): Are you aware if Mr. Twiggs is actually part of this Discord thread? Does he identify whether Mr. Robinson is part of that thread?

Agent Davis (02:51:51): Yes, he is a part of it. In this section, he doesn't reply to it, but he does state in his statement that he was part of that thread. ... He identifies that in his first interview with the two FBI agents, and then he again confirms that in his second interview.

Ms. Hunt (02:52:16): Did Mr. Twiggs say what username on Discord Mr. Robinson used, at least with respect to this thread?

Agent Davis (02:52:22): Yes. It's the Tyler/Ikum, I-K-U-M.

Ms. Hunt (02:52:39): As part of your investigation, did law enforcement send a subpoena to Discord? Were these messages recovered via that subpoena?

Agent Davis (02:52:48): Yes, they did. They were. ... [The first message from Tyler is] 7:57 PM. ... this would've been September 11th.

Ms. Hunt (02:53:28): You testified earlier that Mr. Robinson arrived at the Washington County Sheriff's Office approximately at 9:00 PM. Is that right? How do you know that he arrived approximately around 9:00 PM?

Agent Davis (02:53:46): Yes, that's correct. Just based on just the police reports I reviewed and then go back and look at the video and such.

Ms. Hunt (02:54:00): Judge, the state moves to admit State's Exhibit 16.2 and publish it pursuant to court order.

Richard Novak (02:54:10): Thank you, Your Honor. We've already lodged all of our objections on all three phases.

Judge Graf (02:54:13): All right. Noting the objections, standing objections by defense. State's Exhibit 16.2 is admitted into evidence and may be published only in the gallery, not for distribution on electronic media.

Ms. Hunt (02:57:10): Do you recognize this? What is this?

Agent Davis (02:57:13): This is a handwritten note or letter from Tyler to Lance. ... In Lance's first interview with FBI, he tells them about this letter note he found under Tyler's keyboard per a text message he received... This is the letter he finds under that keyboard.

Ms. Hunt (02:58:03): How did law enforcement get this photograph?

Agent Davis (02:58:07): So following Lance's first interview at St. George PD, his phone is recovered at that point, taken into evidence. It is downloaded... The FBI transported that phone to the RCFL, which is the Regional Computer Forensic Laboratory in Salt Lake City. The phone was downloaded through Cellebrite. And after that... SBI received a flash drive containing that download. From there, it went to a SIAC analyst to go through that data of his phone to look for any pertinent evidence... And at that point that this image of this letter was located.

Ms. Hunt (02:59:05): You mentioned Cellebrite a few times. What is Cellebrite?

Agent Davis (02:59:14): It's a downloading software that's commonly used by law enforcement. I don't do that myself, but it's commonly used to recover data to download electronic devices, particularly cell phones. ... [SIAC is] the Statewide Information Analysis Center. It's a division within DPS that's a fusion center.

Ms. Hunt (03:00:11): Did you speak with officers at SBI that have recovered this photo that we're seeing in State's Exhibit 16.3?

Agent Davis (03:00:17): Yes. Yeah, I have spoken with the SIAC analyst who particularly in particular found this image. I've spoken to her personally as well.

Ms. Hunt (03:00:38): Is Exhibit 16.3 a fair and accurate representation of the photo law enforcement obtained from Mr. Twiggs's phone... Your Honor, the state would move to admit Exhibit 16.3 and then also publish pursuant to court order.

Richard Novak (03:01:03): Just noting the objections that have previously been made, and I think that the court's order is that it may be published in the courtroom only.

Judge Graf (03:01:18): [16.3] is admitted into evidence and may be published only in the courtroom and not be shown or videoed.

Agent Davis (03:03:11): These are the images that the FBI released to the public. That would've been on September 11th when those were released... those were those images that went public of the suspected UVU shooting suspect.

Judge Graf (03:03:56): All right. Noting the standing objection by defense. Overruling that objection. State's Exhibit 16.4 is admitted into evidence and may be published in the courtroom.

Ms. Hunt (03:04:12): Judge, at this time the court has provisionally admitted State's Exhibit 5.1. I would like to move forward admission now because the note in State's Exhibit 16.3 as well as the text thread in 16.1... provides additional context. [Reading 16.3:] the first paragraph he says, "I have the opportunity to take out Charlie Kirk from the tickets." Continuing down in the second paragraph, he says, "I wish we could have lived in a world where this did not feel necessary. I wish I could have stayed before you and [inaudible]." In State's Exhibit 16.1, page three... At the top of page three, Mr. Twiggs says why? Mr. Robinson responds, "Why did I do it?" Mr. Twiggs says, "Yeah." Mr. Robinson responds, "I had enough of his hatred. Some hate can't be negotiated out." So that makes relevant Charlie Kirk's organization, what their purpose was.

Judge Graf (03:12:40): As it relates to 5.1, the court previously... provisionally admitted it, contingent on additional foundation being laid whether through testimony or through evidence. And the court notes that such foundation and testimony has been laid... And so that is received. As it relates to publication... the court understands the argument made by defense that this is going toward perhaps religion and that the enhancement, and let me just read that from the information: Victim targeting enhancement in violation of Utah code annotated 76-3-203.14 sub two. Tyler James Robinson intentionally selected Charlie Kirk because... [his] belief or perception regarding Charlie Kirk's political expression... The court is not going to engage. The court can weigh how this is applied, but it finds it relevant... It is admissible to the court and is publishable to the gallery as well as to the public.

Ms. Hunt (03:15:02): Thank you. Yes, we do... And Agent Davis, I apologize. I'm going to take you very briefly back to State's Exhibit 16.1... if you could turn to page 17. ... if I can direct you to the very last message on that page starting with if any, if you could read that out loud.

Agent Davis (03:17:54): Okay. This is Tyler. He says, "If any police ask you questions..." Sorry, let me start over. "If any police ask you questions, ask for a lawyer and stay silent. My lawyer should be Doug Terry. I'll see if he can reach out to you and make sure the police follow."

Ms. Hunt (03:18:13): Okay. Thank you... And then finally, Agent Davis, you testified before that you flew down to Washington County Sheriff's Office and observed Tyler Robinson there, correct? You stated that you transported or assisted transporting him up to Utah County Jail? And that you were the booking officer? Do you recognize Tyler Robinson here in the courtroom today?

Agent Davis (03:18:53): Yes, I do. He's individual seated at the defendant's table in the center chair with a gray suit coat and a green tie.

Judge Graf (03:19:09): All right. I'll note for the purposes of this hearing only that Agent Davis has identified Mr. Robinson in court. Thank you.

Ms. Hunt (03:19:22): Pass the witness. Thank you. And I don't know if now would be a good time for lunch.

Judge Graf (03:19:27): All right. We'll go ahead and break right now for lunch... Let's come back at 1:30. We'll resume. We'll pick up with defense for cross-examination if they choose for Agent Davis.

Richard Novak (03:19:52): No cross-examination for Agent Davis, so I don't want him to wait here if he has other things to do. Thank you.

Judge Graf (03:20:04): No cross-examination. May this witness be excused? All right. Agent Davis, you may step down... Court is now in recess.

(Lunch recess. Court resumed at 04:30:48.)

Direct Examination — Sergeant Jennifer Faumuina

Judge Graf (04:31:08): We left off with Agent Davis being excused from the stand, no cross-examination. And turning to the state. Are you ready to proceed?

Speaker (State) (04:31:08): The state calls Sergeant Jennifer Faumuina.

Judge Graf (04:31:14): All right, Sergeant... you're still under oath from your previous testimony from the previous day... Mr. McBride, your witness.

Mr. McBride (04:32:19): Sergeant Faumuina, good afternoon. We briefly covered some of your involvement in this case the other day. I want to return back to your initial assignment to this case. When were you first assigned to go to the campus of Utah Valley University?

Sergeant Faumuina (04:32:36): On September 10th of 2025. ... [approximately 1:30 PM.] ... I was at a headquarters office in Salt Lake. ... Yes, I did [go directly].

Mr. McBride (04:32:53): And will you describe what you're seeing as you arrived there?

Sergeant Faumuina (04:32:57): Yes. When I arrived there, I actually arrived onto ... Or near the south end of campus and that's where I saw multiple police cars, as well as multiple officers from various agencies. Then I was asked to respond to our command post, which was in the Fugal building there.

Mr. McBride (04:33:58): And I think you testified earlier, what was your primary assignment?

Sergeant Faumuina (04:34:03): My primary assignment at the campus, as well as throughout the case, was to oversee the crime scenes as well as the physical evidence.

Mr. McBride (04:34:31): You mentioned that there were ... Were there multiple areas that were processed by you and other crime scene analysts in this case?

Sergeant Faumuina (04:34:48): Yeah. So one scene was a courtyard area or I guess what we could also refer to as the amphitheater where the event took place. The other scene would've been the Fulton Library where there were two bus stops. And then another would've been the wooded area. And then the last one would've been the Losee Center building as well as the ground below.

Mr. McBride (04:35:11): All right. Let's start with a rooftop. First, who was assigned to process the rooftop area?

Sergeant Faumuina (04:35:22): The team that was assigned to process that was the Utah Bureau of Forensic Services, they're also known as our state crime lab.

Mr. McBride (04:35:29): And generally, what does processing an area involve?

Sergeant Faumuina (04:35:34): Processing includes documentation, sketching, as well as taking photographs, marking, as well as labeling evidence. And then determining how to package them properly, as well as also just trying to ID anything probative.

Mr. McBride (04:35:53): On the rooftop was evidence found? What types of evidence were found on the rooftop?

Sergeant Faumuina (04:35:59): One item of evidence that was found was a screwdriver. Another one would've been what we believe was the shooter's perch. That was determined... using oblique lighting. We could see disturbances in the gravel on the rear rooftop. And then on the northeast edge, our team also found some swipes on the ledge of that rear rooftop, that was also collected.

Mr. McBride (04:36:36): You said swipes. What does that mean, swipes?

Sergeant Faumuina (04:36:36): Swipes is ... I would describe it as kind of hand marks or any type of marks that is left by something that causes some type of disturbance. ... Those were located right on the edge of that rooftop. And then right below we also had some other swipes as well, as well as some other impressions. And then below that was a glass window where we also located some latent prints.

Mr. McBride (04:37:11): Okay. I wanted to return to what you've referred to as the perch, the sniper position. Were measurements taken from that sniper position to the tent where Charlie Kirk was seated? Do you know the distance?

Sergeant Faumuina (04:37:27): Yeah. So the distance from the perch area directly to the tent where Mr. Kirk was sitting was approximately 415 feet... without taking into account the elevation drop, it was actually 410 feet. So just horizontal straight across. And then the elevation difference between that is approximately 68 feet.

Mr. McBride (04:38:19): Okay. 410 feet from the perch to the tent with a 68-foot vertical drop. Is that right? On a rooftop, were shoe impressions found on the rooftop?

Sergeant Faumuina (04:38:33): Yes. [The perch to tent was 415 feet; there was a slope downward.] Yes, there was [shoe impressions]. ... Yes, they did [collect the latent prints and shoe impressions].

Mr. McBride (04:38:54): And this is a good point to read a stipulation into the record. The language of this has been agreed upon by the parties. The parties stipulate that investigators at the crime scene observed latent fingerprints and a palm print on a glass window near the area where the individual landed when the individual jumped from the rooftop of the Losee Center at UVU. SBI Invest fingerprint examiner, Elisa Farmer, examined images of these latent fingerprints and the palm print and determined that only three of the latent prints, 11B, 11C and 11D, were of comparable or of poor comparable value. She excluded Tyler Robinson as the source of any of these three latent prints. Ms. Farmer reviewed other prints on the window and found that they did not have adequate value for comparison. Subsequent examinations of these three latent... prints by the FBI were inconclusive.

Mr. McBride (04:39:55): That's on the northeast corner of the Losee Center? And that's the area where we see in a video an individual drop from the roof?

Sergeant Faumuina (04:40:02): Yes. Yes.

Mr. McBride (04:40:02): I want to move on to another area, the courtyard. First, will you describe what that area of the crime scene looked like?

Sergeant Faumuina (04:40:13): Yeah. So when I arrived on scene, you have different steps. I believe there were maybe like five or six hovered in grass. And again, when I was there, there were personal belongings spread throughout. There was a tent towards the west end of that courtyard area, as well as some banners and some barriers as well. ... [It was processed by] the FBI.

Mr. McBride (04:40:59): All right. I want to take you to another area. A wooded area. Was there a wooded area that was processed as well? Will you describe first off where that area is?

Sergeant Faumuina (04:41:11): Yes. So this area is located northeast of the Losee Center building and it is across from Campus Drive.

Mr. McBride (04:41:21): Your Honor, could we publish Exhibit 35 please? ...

(Exhibit 35, a campus map, was published. The witness oriented herself to the courtyard, Losee Center, Campus Drive, and the wooded area north of Campus Drive.)

Mr. McBride (04:45:24): Was anything of evidentiary value found in the wooded area?

Sergeant Faumuina (04:45:28): Yes. In the wooded area, a right rifle that was wrapped in a dark-colored towel was found there.

Mr. McBride (04:45:35): And how did you learn about that?

Sergeant Faumuina (04:45:37): I found that out because just a little bit before 6:00 PM that day, I received a call from Utah County Sheriff's Office who was tasked with searching that area.

Mr. McBride (04:45:49): Do you know why they searched that area in the first place?

Sergeant Faumuina (04:45:51): Yeah. So they searched that area because I received a video that was from the UVU security footage... And it showed who we believe was the shooter on the rooftop run from the southwest corner all the way to the northeast corner, jump down and then continue to the northeast side of that campus and then cross the street to Campus Drive. And then the suspect was out of camera's view after that.

Mr. McBride (04:46:27): All right. What were you told from the sheriff's office?

Sergeant Faumuina (04:46:32): I was told that they found a gun and from there I asked them to hold the scene. And that myself and FBI ERT team, the lead, Special Agent Camack, would be en route. ... [I observed the weapon.] What I saw was a rifle that was ... at the time before even having removed it, we found... All you could really see was just a dark towel there. So pictures were taken of that and then eventually the... towel was removed. And then once we removed the towel from the bushes is when we uncovered that the towel was actually used to wrap the gun in.

Mr. McBride (04:47:23): Have you reviewed State's Exhibits 10, 10.1, 10.2 and 10.3?... I move the admission of State's Exhibits 10, 10.1, 10.2, and 10.3.

Mr. Burt (04:47:48): No additional objections, Your Honor.

Judge Graf (04:48:07): 10, 10.1, 10.2, 10.3 are admitted into evidence and may be published both in the courtroom and through the use of the camera.

Mr. McBride (04:48:26): You have in front of you on the screen Plaintiff's Exhibit 10. Will you describe what we're looking at here?

Sergeant Faumuina (04:48:33): Yes. What we are looking at here is actually the bushes where the dark-colored towel and the gun were found. You can kind of see the dark-colored towel towards the right-hand side of the screen. ... [10.1 is] a mid-range shot of... the towel within the bushes.

Mr. McBride (04:49:18): All right. When this was found and you arrived on scene, what happened with that weapon?

Sergeant Faumuina (04:49:25): We moved it from the bushes ... Or say FBI Special Agent Camack moved it from the bushes. We then placed it on a cardboard box, took pictures of it. And then we removed the towel, packaged the towels separately, took additional pictures of the gun and then rendered it safe on scene. ... [10.2 shows] the dark-colored towel and the rifle that is in the towel and it is in a cardboard box. ... [10.3 is] the rifle.

Mr. McBride (04:50:22): You described making the rifle safe. Will you describe what that is?

Sergeant Faumuina (04:50:27): Yep. So what that is that we ensure that there isn't anything in the chamber and that there's no other cartridges in the gun that would have it go off. So to do that, because it is a bolt action gun, we would have to manipulate the bolt or the lever back. And then from there see if anything was in the chamber. ... A bolt action is one where the user actually has to manipulate the bolt... Unlike a semi-auto gun, that is one every single time you pull a trigger, a bullet will be fired.

Mr. McBride (04:51:32): So if you shoot a bolt action rifle, does that spent shell casing automatically exit the gun?

Sergeant Faumuina (04:51:39): No, it does not. It will stay in there until the person that is handling the gun actually removes the bolt ... Or actually pulls the bolt back and then the casing will be extracted out.

Mr. McBride (04:51:54): Will you describe what was found when [the weapon was made safe]?

Sergeant Faumuina (04:51:57): Yeah. So when we rendered the gun safe, we found in it when we removed the bolt back, we found one 30 odd 6 cartridge case or say fired cartridge case. And we also found three unfired cartridges all with engravings on them.

Mr. McBride (04:52:14): Okay. I want to make sure we understand the language you're using. When you say cartridge case and you say cartridge, what do you mean?

Sergeant Faumuina (04:52:22): Yep. So a cartridge is basically the round itself... And the round consists of the cartridge case and then the powder and then the bullet on top. So the cartridge case, the term is used for something that has been fired already. A cartridge is an unfired round.

Mr. McBride (04:52:59): So there was ... A fired cartridge case and three unfired cartridges? Was there anything distinctive about these items?

Sergeant Faumuina (04:53:11): All four of them had engravings on them. ... Yes, I did [observe them right there on scene].

Mr. McBride (04:53:19): Let's talk about each of those things. First, the towel, what was done with the towel? What was done with the firearm?

Sergeant Faumuina (04:53:32): The towel was packaged and then it was eventually provided to the FBI. The firearm was also packaged and then provided to the FBI as well. ... First it went to the FBI to be in their capacity and then it was then sent to the ATF lab.

Mr. McBride (04:54:35): And were you previously shown State's Exhibits 19, 20, 21 and 22? And are those photographs that... you received back from the ATF of those cartridges and the cartridge case?

Sergeant Faumuina (04:54:54): Yes. [They had the same appearance and etchings, and the photos accurately captured them.]

Judge Graf (04:55:36): 19, 20, 21 and 22 are admitted. They may be published both in the courtroom and captured by the media camera.

Mr. McBride (04:55:45): Let us start with Exhibit 19 please. What are we looking at here in Exhibit 19?

Sergeant Faumuina (04:55:58): This is the cartridge case that was recovered from the gun. ... this is what was in the chamber.

Mr. McBride (04:56:20): Do you notice an inscription or an etching on this cartridge case? Will you read what that says?

Sergeant Faumuina (04:56:27): Yes. Notices bulge. [page two:] OWO whats. [page three:] This. [Question mark.]

Mr. McBride (04:56:45): All right. If we go to State's Exhibit 20. Is this a photograph of one of the cartridges that was found in the gun? And what are we looking at here in this view of page one?

Sergeant Faumuina (04:57:11): This is the head stamp of it and it says it is a... According to the head stamp, it is a Remington 30 odd 6 Springfield. [Is that a different caliber than a .223 round?] Yes, it is. [page two:] A fascist. [page three:] Catch. [page four:] Up arrow, right arrow, down arrow, down arrow, down arrow.

Mr. McBride (04:57:50): All right. Let's go to Exhibit 21. And was this another round that was found in the gun? Will you read the inscription here?

Sergeant Faumuina (04:58:19): O Bella Ciao. [page two:] Ciao, ciao.

Mr. McBride (04:58:26): All right. Let's go to Exhibit 22. Another round that was found from the gun, correct? Will you please read the letters here?

Sergeant Faumuina (04:58:42): If you read. [page two:] This, you are. [page three:] Gay. [page four:] LMAO.

Mr. McBride (04:59:21): All right. After processing the scenes there at Utah Valley University in Orem, did you go to St. George? And what was your role in St. George?

Sergeant Faumuina (04:59:36): My role was overseeing the execution of the search warrants at both Mr. Robinson's residence as well as his parents' residence.

Mr. McBride (04:59:47): We've had testimony that Mr. Robinson was arrested there. Was his fingerprinted and his DNA taken?

Sergeant Faumuina (04:59:55): They were actually taken at the Utah County Sheriff's Office Jail. ... [Items collected from him after arrest were] his clothing that he was wearing at the time of his arrest. To include shirts, pants, underwear, as well as shoes and anything that were in his pockets. ... I believe it was a maroon top.

Mr. McBride (05:00:36): You said there were a couple of homes that were searched there. Whose homes was that?

Sergeant Faumuina (05:00:45): One of them was where Mr. Robinson and Mr. Twiggs resided, and the other was Robinson's parents' residence.

Mr. McBride (05:00:51): I want to ask you about the defendant's home. Will you describe some of the items that were collected from that home?

Sergeant Faumuina (05:01:00): Yep. Some items collected in that home were a Dremel tool and its bits container as well as two Remington boxes of 30 odd 6 ammunition as well as 30 odd 6 cartridge cases and a handful of long guns or rifles, a revolver, as well as a burned paper.

Mr. McBride (05:01:25): I want to ask you about clothing as well... How about shoes? What kind of shoes?

Sergeant Faumuina (05:01:35): Two shoes were collected from the home. One was a Converse shoes, gray in color with white laces, I believe a size 10 and a half. And then another Converse shoes that were also gray, but had gray laces instead, but were of a different size that I can't remember.

Mr. McBride (05:02:18): If we can display just to the witness Exhibit 23. Is that an accurate photograph of the cartridge casings and some of the bullets that you found?

Sergeant Faumuina (05:02:37): Yes.

Judge Graf (05:03:00): [State's Exhibit 23] is published to the courtroom as well as may be broadcast via the camera.

Mr. McBride (05:03:07): As that's coming up, where did you find these?

Sergeant Faumuina (05:03:12): I found these in what we would consider the spare bedroom right next to Tyler's bedroom on top of a safe. ... We determined that based off of some documents we found in what we believe was Tyler's bedroom. Such as a mail that was addressed to him as well as some school documents as well.

Mr. McBride (05:04:19): Will you describe what we're looking at in Exhibit 23?

Sergeant Faumuina (05:04:25): Exhibit 23 are the five cartridge casings we found on top of the safe. All were 30 odd 6 Springfield caliber. And one of them had an engraving that said test shot on it.

Mr. McBride (05:05:02): Did you find any 30 odd 6 weapons in that house?

Sergeant Faumuina (05:05:06): No, I did not. ... [In the first-floor closet we found] on the ground some shooting targets with perforations in it. As well as on the shelf, we found a Dremel tool with a bits container.

Mr. McBride (05:05:34): A Dremel tool with bits. What is a Dremel tool?

Sergeant Faumuina (05:05:35): It's basically like a handheld device where you can make etchings or engravings on things. ... We photographed them in place, took additional pictures, packaged them, then sent them for testing to the ATF.

Mr. McBride (05:06:05): You also mentioned targets. Were those targets photographed? [Exhibit 25.]

(Exhibit 25 was admitted and published. The witness identified three shooting targets recovered from the closet, each showing perforations consistent with bullet holes; most shots were off the bullseye.)

Mr. McBride (05:09:15): You described also collecting a burnt note. Will you describe where that note was found and what it looked like to you?

Sergeant Faumuina (05:09:28): Yeah. The burnt note was found in the trash can located in the kitchen. The way it looked like to me, it looked like, say you're at like a campfire and someone burns paper. ... That was also collected and that was sent to the FBI for analysis.

Mr. McBride (05:09:50): And have you reviewed State's Exhibit 24? Is that a photograph of the note?

(Exhibit 24, a photograph of the burnt note, was admitted and published; the witness noted lines and handwriting still visible on the left edge. A side-by-side of 16.3 and 24 was later shown only in the courtroom, not broadcast.)

Mr. McBride (05:17:09): Did you also collect the defendant's car? Where did you collect that from? And will you describe that vehicle?

Sergeant Faumuina (05:17:16): [It was collected at] the Robinson's parents' home. Yep. That vehicle is, say, a gray-colored Dodge Challenger.

Mr. McBride (05:17:35): You've mentioned that you sent several items to the ATF and the FBI for testing. And did you receive reports back from both of those entities with results of their testing? [Exhibit 30.]

Sergeant Faumuina (05:18:35): Yes. This is the ATF report that I received regarding the DNA testing on the gun and cartridge and cartridge casings... cartridge case and cartridges.

Judge Graf (05:19:32): State's Exhibit 30 is admitted into evidence and may be published on screen in the courtroom and for the media camera.

Mr. McBride (05:21:23): Let's go to Page 5. So as we look at this first paragraph here under Statistical Analysis... Exhibits 1.1 and 1.4, do you know what that is referring to?

Sergeant Faumuina (05:21:40): Yep. They're referring to 1.1 is swabs of the stock and grips of the rifle. And then 1.4 is swabs of the bolt of the rifle with possible ridge detail and/or smudging.

Mr. McBride (05:21:51): Will you read Paragraph D?

Sergeant Faumuina (05:21:57): Yes. "The DNA profiles are at least one trillion times more likely if they originated from Tyler Robinson, Exhibit 7.1, as a contributor to the major components and three unrelated, unknown individuals than if they originated from four unrelated, unknown individuals."

Mr. McBride (05:22:20): Number 2, Calculation number 2, where is this swab taken from? Will you read Paragraph D here?

Sergeant Faumuina (05:22:25): Exhibit 1.2 would be swabs of the butt plate of the rifle. "The DNA profile is at least one trillion times more likely if it originated from Tyler Robinson as a major component and four unrelated, unknown individuals than if it originated from five unrelated, unknown individuals."

Mr. McBride (05:23:19): Looking at Calculation number 3, Exhibit 1.3 (trigger and trigger guard)... Calculation number 4, Exhibits 1.5 and 5.1 (fore-end of the rifle and one .30-06 cartridge from the firearm)... Calculation number 5, 1.6 and 3.1 (barrel and one .30-06 cartridge)... In each, will you read Paragraph D?

Sergeant Faumuina (05:23:48): [For each:] "The DNA profiles are at least one trillion times more likely if they originated from Tyler Robinson as the major components... than if they originated from... unrelated, unknown individuals." [Calculation 6, Exhibit 1.9, the scope:] "The DNA profile is 6.28 billion times more likely if it originated from Tyler Robinson as a contributor to the major component..."

Mr. McBride (05:26:24): We can go to Exhibit 32... What is this?

Sergeant Faumuina (05:26:25): This is an ATF report that I received in relation to the gun as well as cartridge case and cartridges.

Judge Graf (05:27:06): As it relates to State's Exhibit 32, is accepted into evidence and may be published in the gallery as well as electronic, the media camera can capture it. And I note that this has been previously disclosed publicly from an earlier filing.

Mr. McBride (05:27:49): Exhibit 32 is in front of you. And what was being analyzed in this test?

Sergeant Faumuina (05:27:58): What's being analyzed would have been the cartridge case as well as the bullet fragment and the lead fragments that were recovered from Mr. Kirk at autopsy.

Mr. McBride (05:28:21): I would ask you to read the second line under Results of Examination.

Sergeant Faumuina (05:28:32): Yes. "The Exhibit 1 rifle was test fired and found to be in operable condition. The test fires were designated as Exhibit 1.11." [And:] "The Exhibit 2 cartridge case was identified as having been fired in the Exhibit 1 rifle."

Mr. McBride (05:29:42): Will you also look at or read the last paragraph on this page?

Sergeant Faumuina (05:29:53): Yes. "The Exhibit 2 cartridge case and Exhibit 3 through 5 cartridges were examined for the presence of comparable tool marks. Tool marks were located on the exterior of the Exhibit 2 cartridge case and Exhibit 3 cartridges (inscribed marks) that are consistent with being produced by engravings and/or rotary cutting tips commonly found... installed in handheld rotary tools such as a Dremel tool. These tool marks contain marks of value for comparison if a suspect tool is located."

Mr. McBride (05:30:32): Number 6, what is Exhibit 6?

Sergeant Faumuina (05:30:42): Exhibit 6 is the bullet jacket fragment, as well as some other fragments that were recovered from Mr. Kirk at the time of autopsy. ... "Exhibit 6 consists of one .30 caliber class deformed, damaged bullet jacket fragment and four lead fragments." [And:] "The Exhibit 6 bullet jacket fragment cannot be identified or excluded as having been fired from the Exhibit 1 rifle based on an agreement of all discernible class characteristics and neither sufficient agreement nor sufficient disagreement of individual characteristics. The results of the comparison was inconclusive." [And:] "The Exhibit 6B through 6E lead fragments are not suitable for microscopic comparison."

Mr. McBride (05:32:02): We can take Exhibit 32 down. Exhibit 33... What is that?

Sergeant Faumuina (05:32:33): This is an ATF biology report on the Dremel tool as well as the cartridge cases that were found on top of the safe in Tyler's home.

(Exhibit 33 was admitted and published. The witness read that the DNA on the Dremel buttons, cord, and metal bits, and on the "test shot" .30-06 cartridge case from the safe, was "at least one trillion times more likely" to have originated from Tyler Robinson as a major contributor.)

Mr. McBride (05:36:18): The final report is 34... What is State's Exhibit 34?

Sergeant Faumuina (05:36:19): This is an ATF report I received that was comparing tool marks.

(Exhibit 34 was admitted and published. The witness read that the Exhibit 16 and Exhibit 18A–18E cartridge cases "were identified as having been fired in the Exhibit 1 rifle," and that the Exhibit 15A engraving cutter — a Dremel bit — "was identified as having made tool marks located on the Exhibit 2 cartridge case, Exhibit 3 through five cartridges, and Exhibit 18A cartridge case.")

Mr. McBride (05:41:38): Your Honor, I want to... show the witness Exhibit 12.1. And this is the video, the UVU surveillance video... I think it's 12.4 was the surveillance video actually that was approved for publication.

Judge Graf (05:42:54): All right. So that then it may be published. This is already admitted and it may be published at all levels.

Mr. McBride (05:43:11): Before you hit play here, Sergeant Faumuina, do you see what's on the screen in front of you? Can you see the suspect in this image? Will you describe where that suspect is?

Sergeant Faumuina (05:43:23): He's on the rooftop, let's say on the gravel part. And this would've been close to the northeast side of that building.

Mr. McBride (05:44:19): Pausing it at 8:20. Were you able to determine if the suspect touched the glass when he dropped from the roof?

Sergeant Faumuina (05:44:19): Not at the time when we first saw the video, no... because the video we had was pretty grainy at the time at the command post, and it wasn't until we're actually able to get the footage directly from UVU. ... [With the clearer footage] We determined that he was not or he did not touch it.

Mr. McBride (05:44:53): Thank you. Nothing else.

Judge Graf (05:44:55): All right. Let's go to a break... Let's break for 10 minutes and then come back and cross-examination.

(Short recess. Court resumed for cross-examination.)

Cross-Examination — Sergeant Faumuina (Mr. Burt)

Mr. Burt (06:00:44): Your role in the case was as the traffic manager of the whole operation, right? And we're talking about multiple agencies besides the SBI, correct? Your agency, if I'm correct, wrote a massive report 229 pages long. You've read that, you're familiar with it?

Sergeant Faumuina (06:00:52): That's a good way to put it. Yeah. ... With most of them, yes.

Mr. Burt (06:01:11): And it's a compilation. You authored some reports, but a lot of other people wrote reports about aspects of the investigation. And as those reports were getting done, you would kind of read them and decide what needed to get done further? ... if my count is correct, nine of those reports... was written by you, correct?

Sergeant Faumuina (06:01:43): Yes, as well as consulting with the case agents. ... Yeah [about nine].

Mr. Burt (06:02:03): The first report was a report that you wrote on September 22nd that documented the overview of the crime scenes... One of them was the Fulton Library. Tell us why that was a potential crime scene.

Sergeant Faumuina (06:02:17): Yeah, of course. When officers were canvassing the scene, they were also trying to see the route of the shooter as well as just trying to find the shooter. And they determined that the Fulton Library stood out because there were unattended items there at the bus stops that were away from the courtyard area. And so, to them they thought it was suspicious. ... [Seized:] a backpack, a jacket, as well as some gloves.

Mr. Burt (06:03:15): And along with some information that the suspect may have shed some of these items as he fled, correct? ... But eventually you communicated to the lab that those items were not in fact connected with the case and there was no need to do further testing.

Sergeant Faumuina (06:03:45): I don't remember communicating that. ... [If that's in the FBI/ATF notes, it would not be inconsistent.] ... Yeah, that would be fair [that those items were determined not related to this case].

Mr. Burt (06:04:10): The second report... it had to do with a... Looks like a request for a search of firearms. This document documents the NIBIN request for firearms.

Sergeant Faumuina (06:04:39): Yes. So that was the request to conduct... the NIBIN is the National Integrated Ballistics Information Network. It is run by the ATF. And that is where we test or we input test fires or cartridge casings, the head stamps and whatnot, into a machine that is then run through the ATF to see if there's any other cartridge casings that match.

Mr. Burt (06:05:09): And nothing of value came from that part of your investigation, correct?

Sergeant Faumuina (06:05:15): Correct.

Mr. Burt (06:05:16): Now going back for a minute to the crime scenes, you talked about the wooded area and you used the phrase "We seized the towel." Who is we?

Sergeant Faumuina (06:05:31): We would be SBI as well as FBI. So that would be myself as well as FBI evidence response team lead, Michelle Cammack, or Special Agent Michelle Cammack. ... She did [reach into the bushes], but I was there with her and we were communicating that entire time.

Mr. Burt (06:06:19): And nobody was videoing the discovery and recovery of that evidence?

Sergeant Faumuina (06:06:26): I believe one of the officers on scene actually had his body camera on. ... [I have not seen it.]

Mr. Burt (06:07:07): But as I understood your testimony, the towel was seized by the FBI agent and then somebody must have reached in and got the gun out, right?

Sergeant Faumuina (06:07:09): No, I'll clarify for you. So the entire time when we retrieved it, the gun was wrapped in the towel. So when Special Agent Cammack reached in, she grabbed not only the towel, but also the gun. And the towel and the gun remained basically intact... and then was placed onto the cardboard box... Once we documented that, and then the towel was removed from the gun.

Mr. Burt (06:07:34): And you also mentioned as to the other crime scenes that "We processed it," but was your role in terms of your actual participation limited to the wooded area?

Sergeant Faumuina (06:07:52): Yep. I was involved in coordinating all that and then determining from there where the evidence would go. ... [Not the same as being on the roof.] So after the teams would have packaged all the items, sealed them properly, create an evidence log, they would then bring it back to the command post. And from there we would compile everything and then there was a discussion... as to who would take custody.

Mr. Burt (06:08:27): Fair to say that you did not observe yourself the seizure of the screwdriver from the roof? And who were the people who were actually conducting that part of the crime scene processing?

Sergeant Faumuina (06:08:41): Correct. That would've been our state crime lab. Those two people are part of our state crime lab's crime scene response team.

Mr. Burt (06:08:50): When did you review the video of the suspect running toward the area from which he jumped off? ... And when were the windows processed for the latent fingerprints?

Sergeant Faumuina (06:09:03): That would've been... that day on September 10th. ... The windows were processed on September 11th, the next day.

Mr. Burt (06:09:15): And was the reason that those latent [prints] were taken was because you wanted to rule out whether the suspect had touched that window? You were not present when that scene was processed either, correct?

Sergeant Faumuina (06:09:27): Yes. [That's what the notes say.] Not the entire time, no.

Mr. Burt (06:11:16): The larger 229-page report indicates that there was some investigation done by your agency that involved interviewing associates of Mr. Robinson to see if you could develop some profile of him having animosity toward Mr. Kirk, correct?

Sergeant Faumuina (06:11:39): I'm not familiar with that. ... No [I wasn't involved].

Mr. Burt (06:11:43): Some of these documents in that large report indicates that your agency has also, up to the present time, been monitoring Mr. Robinson's mail and communications at the jail, correct? And have you kept abreast of that investigation? Do you know whether anything of value has been developed as a result of that?

Sergeant Faumuina (06:11:58): Correct. No. Nope.

Mr. Burt (06:12:10): That's all I have. Thank you.

Judge Graf (06:12:11): Thank you, Mr. Burt. Redirect?

Mr. McBride (06:12:14): Nothing, Your Honor.

Judge Graf (06:12:15): All right. May this witness be excused? All right. Sergeant, thank you.

The State Rests

Mr. Grunander (06:12:35): Judge, if I could just confirm with the court that all of the exhibits we have offered have been admitted into evidence.

Judge Graf (06:12:44): All right. So here's what I have and my court clerk will certainly correct me if I'm wrong. I have State's Exhibit 1, 2, 3, 3.1, 3.2, 4, 5, 5.1, 6, 6.1, 7, 7.1, 8, 8.1, 9, 10, 10.1, 10.2, 10.3, 11, 12.1, 12.2, 12.3, and I believe 12.4... 13, 14, 15, 16, 16.1, 16.2, 16.3, 16.4. 17 and 18 are blank, so no.

Mr. Grunander (06:13:28): We're not offering 17 and 18.

Judge Graf (06:13:30): 19, 20, 21, 22, 23, 24, 25. The following are blank, 26, 27, 28, 29. I have 30, 31, 32, 33, 34, and 35, which have been admitted into evidence.

Mr. Grunander (06:14:32): Your Honor, the State rests its case in chief.

Judge Graf (06:14:35): Thank you. Turning to Defense.

Motion to Reconsider — Publishing Exhibit 12.1

Jeffrey Neiman (06:16:15): Your Honor, as the court knows, the family has asked that all exhibits admitted into evidence be shown here in open court. We are grateful to the court for allowing the family to view many or most of the exhibits today... I'm going to ask the court to reconsider one of its prior rulings. I understand reconsideration is always a big ask, but I do think, Your Honor, that if the court were to display publicly, or just in the courtroom, Exhibit 12.1, which is the enhanced video, version 12.4, which was played in court, was very hard for the family to view. We think... the family should be able to view it as well... if the court were to deny the family the right to view that video, there's no [middle ground]. It's either they get to view it or they don't. So, we would ask the court to reconsider its prior ruling and to display, just in the courtroom, Exhibit 12.1, which is the enhanced video. Thank you, Your Honor.

Mr. Grunander (06:17:43): Thank you, Judge. The State does not oppose publishing 12.4 in the courtroom. I think we've tried to make it very clear throughout this case that we favor openness and transparency as much as appropriate. I'll submit it on that. My apologies. That's 12.1, not 12.4.

Mr. Burt (06:18:07): Judge, at this point in the proceeding, we're asking the court to keep focus on the purpose of this hearing. And as the Justice has said in the Estes case... the purpose of a trial... is to determine the defendant's guilt. It's not to educate the public or the victim's family or the world on what evidence the government or the State has. As the court knows, we have witness availability problems. We've spent the bulk of today and yesterday arguing about nothing to do with the evidence in the case, but with rights of third parties... And I want to point out to the court, Ms. Kirk has been very adept at holding press conferences at which she has revealed evidence... So, they're perfectly free to go outside this courtroom, under the court's protective order... And I'd ask the court, whatever the court does, if you're going to allow revisiting or replaying of evidence for the sole purpose of informing the world or Ms. Kirk or anybody else, that the court do it at the end of the process, and not at this point where we will be deprived of our ability to call this witness, because she has to be done today.

Jeffrey Neiman (06:20:59): Your Honor... The family has not seen this video. It hasn't. It doesn't have access to the evidence the State has, the State is the State, and Ms. Kirk and the family have their representatives. There's a completely distortion of reality that was just put forth. And this isn't about educating anybody about anything. This is about allowing the family to see the evidence that's been gathered after a 10-month investigation in which a father, a husband was assassinated. That's what this is about. So, we ask you to please allow the family to view the video like the court has viewed in order to allow the family to process this moment.

Judge Graf (06:21:50): All right. So, I recognize that the Utah Constitution under Article 1, Section 28 recognizes victims' rights and the court respects those rights and... balances those rights with the constitutional rights of all parties. I will reserve my ruling on that and maybe revisit it tomorrow. But because we have an issue of expiring time and one witness that needs to leave today, I need to turn to that. I'm not ruling that that cannot happen, but for today, we need to focus on this to getting this defense witness on the stand and off the stand... I'm not saying yes, I'm not saying no, I'm simply saying we need to get to this witness, and I'm happy to readdress this tomorrow. Okay? All right. Mr. Burt.

(The defense called its witness.)

Defense Direct Examination — Samantha Karner (ATF firearm/toolmark examiner)

Mr. Burt (06:24:21): Thank you. Good afternoon. Could you tell us your name please? And Ms. Karner, what do you do for a living?

Samantha Karner (06:24:28): Yes. My name is Samantha Karner. I am a firearm and toolmark examiner. I currently work at the Forensic Science Laboratory in Washington for the Bureau of Alcohol, Tobacco, Firearms and Explosives... A little over six years. ... I receive items of evidence related to firearms, tools, toolmarks, and fired ammunition components.

Mr. Burt (06:24:59): At the request of the State of Utah, did you conduct certain examinations relevant to this case? Could you bring up State 32 in evidence?

Samantha Karner (06:25:05): I did, yes. [I recognize Exhibit 32. I am the author of this report.]

Mr. Burt (06:25:45): What were you asked to do in relation to the examination that's documented in this report?

Samantha Karner (06:25:53): For the submission one report, I received a firearm, cartridge case, three cartridges, one bullet jacket fragment, and four lead fragments. I was asked to test fire the firearm and compare the test fires to the cartridge case and the bullet jacket fragment. I also was asked to do a toolmark characterization on the cartridge case and the cartridges. And then I also ran a general rifling characteristic search on the bullet jacket fragment.

Mr. Burt (06:26:34): Could you turn to page two of the report?... Did you write in your report these conclusions conform with the relevant Department of Justice policy on Uniform Language for Testimony? ... And I want to ask you to review the document that is referenced in that language... Exhibit 11.

Samantha Karner (06:27:07): Yes. That is always added to our reports. [We have a standard operating procedure requiring it.] ... [Karner 11 is] the written policy of the Department of Justice concerning Uniform Language for Testimony and Reports for the Forensic Firearm/Toolmark Discipline: Pattern Examination.

(Karner 11 was admitted and published.)

Mr. Burt (06:28:31): Ms. Karner, can you tell us what the purpose and scope of this document is?

Samantha Karner (06:28:42): Yes. This is the DOJ Department of Justice's Uniform Language for Testimony and Report, and it standardizes the appropriate language an examiner will use during reporting and their testimony. And DOJ published this to standardize the wording that examiners would use across their forensic laboratories.

Mr. Burt (06:29:30): Now, could you go to page three of that report, where it says, "Qualifications and Limitation of Firearm/Toolmark Discipline Examination"?... And the portion of the policy that says, "A conclusion provided during testimony or in a report is ultimately an examiner's decision and is not based on a statistically-derived or verified measurement or comparison to all other firearms or toolmarks. Therefore, an examiner shall not..." Your report is not meant to imply something contrary to what's stated here, is it?

Samantha Karner (06:30:35): No, it's not meant to. [I am not asserting that a source identification is based on the uniqueness of an item of evidence.] I have not looked at every firearm that's been manufactured in the world, nor have I looked at every tool that's been manufactured in the world, that's correct.

Mr. Burt (06:30:57): The second portion of that says an examiner shall not "use the term 'individualize' or 'individualization' when describing a source conclusion." Did you abide by that policy in this case? And you're not expressing an opinion here that the comparisons that you made are individualized to a particular weapon or a particular cartridge case, correct?

Samantha Karner (06:31:14): I did, yes. My conclusion for one of the exhibits identifies the cartridge case as being fired in the firearm, but that's all it says, yes. [I am not asserting that that's an individualized identification in the sense that's being used in this policy.]

Mr. Burt (06:31:47): [Reviewing the policy:] An examiner shall not "assert that two toolmarks originated from the same source to the exclusion of all other sources"... shall not assert that examinations... are infallible... shall not assert that there is "a zero error rate"... shall not provide a conclusion that includes a statistic or numerical degree of probability except when based on relevant and appropriate data... shall not assert the two toolmarks originated from the same source with absolute or 100% certainty, or use the expressions "reasonable degree of scientific certainty"... You're not making any such assertions in this case, are you?

Samantha Karner (06:33:38): [To each:] Correct. I am not.

Mr. Burt (06:33:39): Now, when you conducted your analysis in this case... do you typically generate a case file that includes proper documentation of your examination? [Displays Exhibit 6, Karner 6 — a 47-page case file.] Did you rely on the documents and photographs that are documented here in writing the report that the State introduced into evidence here?

Samantha Karner (06:34:56): The notes are mostly used for initial documentation and evaluation and then, yes, supplement to the conclusions that I make. It's all a representative image of what my conclusions are going to be. So, part of it is going into the conclusion statement and then just showing proof of those conclusions. [My standard operating procedure requires that I document the basis for my opinions.]

Mr. McBride (06:35:31): I object. I don't see the relevance of the court's probable cause determination to review a 46-page report that includes notes... without testimony about what the meaning of the notes is and so forth, it is more confusing than it is probative. So, under a 403 analysis, I don't think it's admissible nor helpful to the court.

Judge Graf (06:36:35): As it relates to the objection, the objection is overruled. I find that this is relevant, as it relates to State's Exhibit 30... as well as State's Exhibit 32... and the State is able to do cross-examination on this witness as it relates to this report, and so it is admitted and may be published on all levels in the courtroom and on through the media.

Mr. Burt (06:36:59): Ms. Karner, one of the items you were asked to look at was... one bullet jacket fragment and four lead fragments, correct? Were you informed at some point that there was a discrepancy between what you were examining and what had been documented by the medical examiner, in terms of the number of bullet fragments?

Samantha Karner (06:37:23): I was, yes. ... I was alerted that there was potentially seven fragments from the medical examiner in a photo just a few months ago.

Mr. Burt (06:37:48): You're clear though that when you got the evidence, it was in a sealed condition, correct? And did you take the contents of the envelope containing the bullet and take photographs of it?

Samantha Karner (06:37:55): It was, yes. A small individual manila envelope, yes. [I photographed the as-received condition of Exhibit 6 — 6A through 6E — and the interior and exterior of the 6A bullet jacket fragment.]

Mr. Burt (06:39:09): Now, after you documented what the bullet and the fragments looked like, did you do certain procedures on the larger bullet fragment? And what did you do?

Samantha Karner (06:39:23): I cleaned the bullet jacket fragment and I also peeled the petals back. If you think of a banana and peeling the skin away from the interior, it's almost like doing that. As you can see from the photo, the petals have been crumpled in on themselves, so in order for me to see the land and groove impressions, which holds those individual characteristics needed for a comparison, I have to do some maneuvering of those petals. ... I use pliers.

Mr. Burt (06:40:05): Were the smaller fragments essentially not of any value to you in terms of doing comparisons?

Samantha Karner (06:40:10): They were deemed unsuitable, which means there are no microscopic marks of value for comparison.

Mr. Burt (06:40:45): Now, after you took these photographs, did you proceed to do something to determine whether you had either class, individual, or subclass characteristics? Tell the court what that means.

Samantha Karner (06:41:01): To start, when I do my initial examination of a bullet jacket fragment like this, I'm going to look at its class characteristics. Class characteristics are the least restrictive set of characteristics I use in my comparison process... For a bullet, you could think of the diameter of the bullet, the number of land and grooves, the direction of twist, and the type of rifling... which was 6 right conventional rifling. Then I'd move on to look at any subclass characteristics... they are design features that can be put on an object during the manufacturing process... Then I move on in looking at the individual characteristics. And these are imperfections and irregularities that arise from the manufacturing process... and these individual characteristics is what is going to be distinct to that tool, and that's why they're used for the identification process.

Mr. Burt (06:43:01): Now, once you have the class characteristics of a bullet, can you narrow the range of firearms that could have fired it, just based on class characteristics? And is caliber a class characteristic or an individual or a subclass characteristic? Did you measure the diameter of the bullet? And what was your reading?

Samantha Karner (06:43:52): [Caliber is] a class characteristic, because a lot of firearms will have the same... caliber. ... The range of the diameter for the 6A bullet jacket fragment was 0.286 to 0.301 inches. [Page 13. The direction of twist was 6 right — a class characteristic.]

Mr. Burt (06:45:07): Once you have the diameter and the rifling characteristics and the land and groove measurements, can you then plug those measurements into a database, and narrow down the class of weapons from which this bullet could have been fired?

Samantha Karner (06:45:34): The general rifling characteristic search will use those class characteristics and will generate a list of possible firearms that could have fired the bullet. But that list is not all-inclusive, it is just used as an investigative tool. [The results — Exhibit page 47, the GRC search — listed several different .30 caliber class firearms, including pistols, revolvers, machine guns, and bolt-action rifles, that could have fired the bullet.]

Mr. Burt (06:46:56): Now, let's go back to the examination of... subclass characteristics and individual characteristics. Is one of the reasons you look at subclass characteristics because they can be confused with individual characteristics?

Samantha Karner (06:47:21): That is a concern, yes. ... Subclass characteristics can be similar to individual characteristics. However, trained examiners are able to notice the difference between subclass and individual... They're going to be uniform in their appearance. They're going to be spaced in a way that's more uniform.

Mr. Burt (06:49:13): And you did [assess for subclass] in this case, correct? And what conclusions did you reach?

Samantha Karner (06:49:24): My subclass assessment that's on page 13 of my report states, "The striae observed in the land and groove impressions contain starts and stops, are not coarse, and vary in their height, width, depth and spatial arrangement. No apparent subclass influence."

Mr. Burt (06:49:44): The striae observed... vary in their height, width, depth and spatial arrangement. Did you measure the height, width, depth of the land and groove impressions? And how about the striae?... You didn't measure the height, width, and depth of those marks, correct?

Samantha Karner (06:50:19): The land and groove impression widths? Yes, I did. [The striae are different.] No, I did not [measure the height, width, and depth of the striae].

Mr. Burt (06:51:56): Did you inspect the interior of this barrel? And did you notice whether it had any debris or dust in it?

Samantha Karner (06:51:58): I did, yes. I believe my notes state that debris and dust was observed in the inside of the barrel, yes. ... A plethora of things. I'm not sure why something is ever in a barrel.

Mr. Burt (06:52:27): So you determined here, you ruled out subclass characteristics, correct? Then the next part of the examination was determining whether you had any individual characteristics on the bullet, correct? And what did you conclude in that regard?

Samantha Karner (06:52:49): [Yes.] That there were microscopic marks of value worthy of comparison or yes, individual characteristics in the land and groove impressions.

Mr. Burt (06:53:04): And then once you determine that you have items of value on the question bullet, do you then do something to produce test bullets? How many test fires did you produce in this case?

Samantha Karner (06:53:18): Yes. Part of the comparison process when there is a firearm that we receive is to test fire it to make pristine samples... I made three sets, so six total. [Our SOPs state you need at least two; there is no maximum.]

Mr. Burt (06:53:52): Were you informed by other investigators working on the case that this particular weapon was manufactured in Germany in 1938? You did not review a report from an ATF agent who investigated that issue? ... In doing your examinations, it is important to know something about the manufacturing process of the weapon?

Samantha Karner (06:53:59): I was not, no. No, I don't believe so. ... It is helpful to know how a barrel or any part of the firearm is manufactured, yes. Certain manufacturing techniques will lend to that individual characteristics. So grinding is a method that is known to leave individual characteristics on a tool.

Mr. Burt (06:56:32): Now when you're doing these comparisons, you use something called the AFTE theory of identification, don't you? And what is AFTE?

Samantha Karner (06:56:41): Yes. The AFTE theory of identification... [is] the theory stating how an examiner is able to come to a conclusion when examining two or more sets of tool marks... AFTE is the Association of Firearm and Tool Mark Examiners. It's the governing body of the firearm and tool mark community... They hold annual seminars, publish a glossary of terminologies used by the firearm community, and they also have a peer-reviewed published journal.

(After a foundation dispute, Mr. Burt's Exhibit 27 — the AFTE theory of identification — was admitted over the state's objection as "Karner 27" and published.)

Mr. Burt (06:59:20): Looking at the language of this, the second part of it, according to AFTE, says, "Currently, the interpretation of individualization identification is subjective in nature." Do you agree with that? Why is it subjective in nature?

Samantha Karner (07:04:31): Yes. The conclusions that I author are of my opinion.

Mr. Burt (07:04:58): The theory as it pertains to the comparison enables opinions of common origin to be made when the unique surface contours of two tool marks are, quote, "in sufficient agreement." And is a subjective part of that the quoted part sufficient agreement? And what may constitute sufficient for you may be completely different from the next examiner, fair?

Samantha Karner (07:05:37): The subjective part of the conclusion is saying yes. It is my opinion that there is or is not sufficient agreement or sufficient disagreement amongst two or more tool marks. ... Yes and no. I would expect any trained, competent examiner to come to the same conclusion. So the threshold of sufficient agreement might be different from one examiner, but the conclusion I would expect to be the same.

Mr. Burt (07:06:09): Does your manual state, your ATF manual, section 431, [that] "An observation such as significant agreement can mean different things to each examiner. This does not serve as interpretable descriptions of what was observed because the individual performing the review will likely have his or her own concept of the phrase based upon their training, experience, and knowledge"?

Mr. McBride (07:06:48): Objection, Your Honor. This goes to weight. This goes to credibility. And the witness's report has already been admitted... This is beyond the scope of preliminary hearing.

Judge Graf (07:07:15): I'm going to overrule the objection, but Mr. Burt, we don't need to go 100 miles down a path where 1 mile is where probable cause may be. And so I invite you to refocus... I need to hold to probable cause.

Samantha Karner (07:09:37): I don't remember it verbatim, but it does sound accurate. [After reviewing Exhibit 12:] I believe so, yes.

Mr. Burt (07:10:31): Now let's return to the report, the State 32... You concluded here, did you not, that the Exhibit 6A bullet jacket fragment could not be identified or excluded as having been fired from the Exhibit 1 [rifle] based on an agreement of all discernible class characteristics and neither sufficient agreement nor a sufficient disagreement of individual characteristics. The result of the comparison was inconclusive. That was your ultimate conclusion, right?

Samantha Karner (07:11:31): Yes.

Mr. Burt (07:11:34): Could you specify which of those possibilities exist in this case? Was this a case where you had microscopic dissimilarity, but in your opinion, it was insufficient to form a conclusion of source exclusion?

Samantha Karner (07:12:36): No, my conclusion is inconclusive just as it says in the appendix. There is a lack of sufficient agreement and sufficient disagreement. So I'm unable to say one way or another. ... [There were] times that I saw agreement in the striations in the land and groove impressions also seeing disagreement, but there was also a lot of lack of microscopic marks of value to see it all. So because of this lack of quality and quantity of marks to be able to see, it never reached the threshold of sufficient agreement nor sufficient disagreement.

Mr. Burt (07:13:37): Do you recall me asking you whether you agreed with this statement that an inconclusive conclusion indicates that the microscopic marks in question may or may not have originated from the same or known source? And you agreed that that was a correct definition of what you concluded in this case, correct?

Samantha Karner (07:14:17): I do remember you asking, yes. Correct. Yes.

Mr. Burt (07:15:00): In your case file, you have produced for us some nice comparison photos... [page 37] Is the top photo depicting one test fire on the left and another test fire from the same gun on the right? So do you see areas of agreement and areas of disagreement in these two bullets fired from the same rifle?

Samantha Karner (07:15:42): I see sufficient agreement amongst the striations that are in this land impression. [The witness identified several areas of agreement in the striations across the two test fires.]

Mr. Burt (07:18:39): So go to the photo on the bottom of that page. This is the first of several comparisons between the test fire on the left and 6A on the right, correct?... I'm interested in the areas of disagreement. Are there areas of disagreement between the known and the unknown here that you could point us to?

Samantha Karner (07:19:31): So for this photo, to me, I see areas of agreement in the top. And then on the way down from the 6A... there's a lot of damage that is observed and almost no microscopic marks of value can be observed at all. So again, that lends to the lack of quality and quantity of marks even to do a comparison. It's almost like missing data points. [Missing is not the same as dissimilar — it just means there's nothing there to call agreement or disagreement.]

Mr. Burt (07:24:38): But there are, in these photos, areas of disagreement as well as areas of agreement, correct?

Samantha Karner (07:24:26): In the photo that we just looked at, it could be possible areas of disagreement. Again, it's just one area that I'm looking at. It's hard to tell when you can't look at the entirety of the land in this moment.

Mr. Burt (07:24:38): Do you keep up with the scientific literature relevant to your field? And are you aware of certain criticisms that have been leveled against this AFTE theory of identification?... Did [the National Academy of Science] conclude in 2009 that, "A fundamental problem with tool mark and firearm analysis is the lack of a precisely defined process..."?

Mr. McBride (07:27:04): Objection. Objection. We're now firmly into 702 territory. I object on grounds of relevance to the probable cause hearing and beyond the scope of the PC hearing as I previously objected.

Judge Graf (07:27:28): So again, I'm trying to keep us on the probable cause standard. This is going a bit deep in regards to it. This is citing to 2009. And so we're in 2026... I feel that we are exiting the orbit of probable cause... So I will overrule the objection, but I will limit you to this question.

Mr. Burt (07:30:01): You're aware of that criticism, right?

Samantha Karner (07:30:03): Yes, I am.

Mr. Burt (07:30:56): The last area is in the years that you've been doing this testing, is it true that you've only taken one proficiency test that involves bullet comparisons? And is it true that that was in 2023?... And is it true that that proficiency test involved a test where you had questioned bullets and then you had two sets of bullets, one that was fired from one gun, not the suspect gun, and then a second gun...?

Samantha Karner (07:31:12): Yes. I've only had the opportunity to take one bullet proficiency test so far. [I don't remember the exact final ground truth answers.]

Mr. Burt (07:32:05): I think when you and I talked about this, you said you were aware of a controversy about that particular test, correct? That there was a very high error rate in that particular proficiency test, right?

Samantha Karner (07:32:22): There was a higher error rate, yes. However, my answers were satisfactory along with the five other examiners at my specific laboratory that took it as well. ... [My conclusion in that case was inconclusive.] The ground truth answer was yes, they were excluded. However, an inconclusive result in this comparison was extremely appropriate. The lack of quality and quantity of those individual characteristics never reached sufficient agreement, nor did it ever reach sufficient disagreement.

Mr. Burt (07:34:00): [Showing Exhibit 19, pages 26, 27, 28 to the witness only:] In your opinion, does this... show matching individual characteristics?

Samantha Karner (07:34:59): There are individual characteristics present, but without examining it in person, I don't feel comfortable making a conclusion. [For each of the three:] I do see individual characteristics. I do see some areas of agreement. Without looking at it further, I wouldn't make a conclusion. It's a holistic approach when you're examining items.

Mr. Burt (07:36:27): Would it surprise you if I told you that all three of those were fired from different weapons?

Samantha Karner (07:36:34): Again, I don't know any context to these photos other than what you showed, so I don't feel comfortable saying one way or another.

Mr. Burt (07:36:39): Thank you.

Cross-Examination — Samantha Karner (Mr. McBride)

Mr. McBride (07:36:57): Those last three photos that you were shown, had you seen those before?

Samantha Karner (07:37:01): I have looked at them probably back in 2024 when it was published. Yes. It was a look from the Association of Firearm and Tool Mark Examiners. It was a volunteer of photographs of people that did have an incorrect answer in that proficiency test.

Mr. McBride (07:37:20): And when you do an examination or a comparison, are you limited to one photograph? You actually have the item in front of you, correct? And you can manipulate it, you can turn it, you can look at every angle...?

Samantha Karner (07:37:40): No. That is correct, yes. It's a holistic approach. If I have a bullet like this case, I'm looking at every single land, every single groove impression, and doing an evaluation of each one of those, looking for areas of agreement and disagreement before rendering a conclusion.

Mr. McBride (07:38:07): Would it be responsible for you to reach a conclusion based on a single photograph of a very limited area of two bullets?

Samantha Karner (07:38:14): I would not feel comfortable doing that, no.

Mr. McBride (07:38:17): I want to back up. Where do you work? How long have you been there? Where did you work before that? Do you have education and training before that position?

Samantha Karner (07:38:35): I work at the Forensic Science Laboratory in Washington for the ATF... A little over six and a half years. Prior to working for ATF, I was a latent fingerprint technician recovering latent fingerprints from improvised explosive devices. I also worked as a crime scene investigator in Winston-Salem, North Carolina, and Anne Arundel County, Maryland... I have a Bachelor of Science in Forensic and Investigative Science from West Virginia University and have attended and graduated the National Firearms Examiner Academy.

Mr. McBride (07:39:32): And will you describe what that training is like at the ATF where you are now?

Samantha Karner (07:39:36): Yes. So part of becoming a firearm and tool mark examiner for ATF was attending the NFEA, the National Firearms Examiner Academy, which is a year-long intensive comprehensive training program... I worked 16 weeks of hands-on experience assembling and disassembling firearms using a comparison microscope, comparing fired ammunition components and tool marks, going on manufacturing tours and participating in moot court... Once all of that is complete, then I work on supervised case before moving on to unsupervised case work.

Mr. McBride (07:41:56): Are you required to undergo continuing education in your position? Is this an area of science and forensics that is continuing to develop new techniques and advance in research? And how do you stay up on those advances?

Samantha Karner (07:42:00): There is not a specific continuing education program. However, when the opportunity to go on AFTE's annual conferences and it allows it, I will go to those as well as continually go to manufacturing tours... they do an annual training seminar recently just in May of 2026 here in Baltimore... not just firearms practitioners, but also standard and technology researchers like those from the National Institute of Standards and Technology or NIST.

Mr. McBride (07:42:56): Defense counsel has asked you a little bit about some of the publications that have given criticism... but given recommendations on how to improve the science in your field. Is there an effort to adopt those suggested improvements where they have merit?

Samantha Karner (07:43:14): Yes. AFTE especially takes those recommendations very seriously. If the PCAST asked for more specific design test studies, they said, "Yes, we will do that." I can think of just a few right off the top of my head that has satisfied those asks that they wanted.

Mr. McBride (07:43:33): Is your laboratory accredited? What does that mean to be accredited as a laboratory?

Samantha Karner (07:43:39): It is, yes. An accreditation means that my laboratory is held to an international standard of reporting, testimony, training and proficiency tested. We have a large audit every four years through ANAB or the American National Standard Institute National Accreditation Board, but we also do internal audits...

Mr. McBride (07:45:00): Let's say you're comparing... rifling on a bullet. Are there principles that apply to that area that also apply in tool marks analysis, say, of impressions of a handheld tool?

Samantha Karner (07:45:00): Yes. All of those comparisons are a product of a tool mark comparison. A firearm is nothing but a tool. So when you are talking about a cartridge case comparison, it's still looking at a tool and a tool mark. The tool in this case is the firearm. The tool mark is being left on a cartridge case or a bullet.

Mr. McBride (07:46:10): I want to draw your attention to plaintiff's exhibit 32... The second sentence under results of examination. Exhibit 1, "Rifle was test fired and found to be in operable condition." Did you perform that test fire? ... In this circumstance, Exhibit 1, rifle, this Mauser 98 30-06, was it an autoloading rifle or a bolt action?

Samantha Karner (07:46:41): I did, yes. In order to determine if the firearm is in operable condition, I will find ammunition that it is calibered for. In this place it was 30 odd six Springfield. Load that into the firearm and then I fired any test fires into our water recovery tank... This was a bolt action rifle.

Mr. McBride (07:48:02): The Exhibit 6A paragraph there. The result of the comparison was inconclusive. Could further testing be done to try and see if you come to a conclusion on this round? Is there further testing that could be done in the field?

Samantha Karner (07:48:44): There was no further testing that I could do, no. There is the possibility of using a 3D system to visualize the individual characteristics on the bullet. [My laboratory currently does not have that capability. I believe the FBI lab does.]

Mr. McBride (07:49:14): Defense counsel put up a list of potential firearms that could have fired this round or this bullet. Is that list comprehensive?

Samantha Karner (07:49:23): It's not an all-inclusive list.

Mr. McBride (07:49:25): There's been some discussion about the 6A bullet jacket fragment. Will you describe what a bullet jacket is? ... What does that mean that it's a fragment?

Samantha Karner (07:50:08): So this is a demonstrative of a bullet. So a bullet jacket, it would refer to the outside of the bullet. Inside the bullet would be the lead core. So when I'm referring to the jacket, it means that I've only received that outer portion... Fragment means that I don't have the entirety of that jacket. [I cannot testify as to why I don't have the entirety.]

Mr. McBride (07:50:45): And your report also says that there are four lead fragments. Why would you have lead fragments? And would you be able to gather information from those lead fragments that could identify them as coming from this particular firearm?

Samantha Karner (07:50:54): So the lead fragments, the lead would be from the inside of the bullet, that core. Occasionally when the bullet reaches its final destination, it can split... I would not expect to see any characteristics that would help me reach a conclusion, no. Because the lead core is on the inside of the bullet, the land and grooves are going to be imparted onto the jacket or the exterior. So when it's moving down the barrel, the inside is not coming into contact with rifling whatsoever.

Mr. McBride (07:51:41): In this case, do you have a verification step where your work is reviewed by another analyst? And were your conclusions in this case verified by another analyst?

Samantha Karner (07:51:58): We do, yes. Yes, they were.

Mr. McBride (07:52:52): You say you peeled back the petals... of the bullet jacket because it was so crumpled. [Is there a potential the testing prevents future testing?]

Samantha Karner (07:52:55): No, I would not expect anything that I've done to prohibit more examination in the future. No... I think if anything, that lends to a better comparison process. It is a very well-known practice amongst firearm and tool mark examiners.

Mr. McBride (07:53:23): In reaching the conclusions that you did in this case, did you follow the protocols and practices that are required by your position?

Samantha Karner (07:53:31): I did, yes.

Mr. McBride (07:53:33): Nothing else.

Recross-Examination — Samantha Karner (Mr. Burt)

Mr. Burt (07:53:41): You said a couple of things of interest to me. One was that your work is peer reviewed, right? There's a peer reviewer, a second reviewer? And you know in this case, we requested to produce the case file from your reviewer so we could see whether it was accurate or not.

Samantha Karner (07:53:53): It is a verification process. I am not [aware]. And the verification process does not require that the verifier has case notes. Their case notes would be within mine and it's just an authored verification chart.

Mr. Burt (07:54:19): Well, you wrote a memo to Mr. McBride dated May 19th, did you not? In which you said... ATF Laboratories do not release materials concerning technical reviewers or verifiers. And you went on to state... that we don't even release the CVs of who the reviewers are?

Samantha Karner (07:54:41): So that is not authored by me. That is our ATF procedures and protocols. If that was an email that came from me, I am just verbatim what our quality assurance manager has said.

Mr. Burt (07:54:49): Do you have an opinion on whether it is scientifically defensible to rely on a peer reviewer and not reveal that peer reviewer's work product?

Samantha Karner (07:55:54): However, in this case, the verifier does not have any work product to show... All I can say is that they are employed at my laboratory. They're under the same scrutiny of proficiency testing, went through the same training with competency and practical exercises, so they are a trained and competent examiner... The reviewer's work product is a verification sheet.

Mr. Burt (07:56:46): Now, you said two things about the PCAST report on cross-examination. One was that... the PCAST findings have been addressed in subsequent studies. Did I hear that correctly? ... First of all, they didn't recommend, they found, did they not, "PCAST finds that firearms analysis currently falls short of the criteria for foundational validity because there is only a single appropriately designed study to measure validity and estimate reliability..."?

Samantha Karner (07:57:01): Because one of the recommendations was to further... one more black box study to show the foundational validity of firearm and toolmark examination. And since 2016, several have been published. ... That is what their finding was, correct.

Mr. Burt (07:57:49): And then after that report was published in 2017, they came out with a second report because people said, "Oh, the literature already exists. You missed it." And they said, "No, that's not true." Isn't that right?

Mr. McBride (07:58:05): Objection. Relevance to preliminary hearing. We're now well into 702 argument.

Judge Graf (07:58:25): On cross-examination, that door was opened by the state, and so I will allow limited questioning on recross or redirect... The objection is overruled.

Samantha Karner (07:58:57): Yes. PCAST did a 2017 addendum to their 2016 report reiterating that they believe that the only way to properly empirically test the science is through these black box studies and that they would not take into consideration the numerous amount of work and validation studies done over decades that the firearms community has published.

Mr. Burt (07:59:16): And a bunch of other studies were done, right? And in response to those additional studies, there have been continual criticisms of the methodologies of those studies... their study in 2024 called Methodological Problems in Every Black Box Study of Forensic Firearm Comparisons in which they concluded that the field still was not reliable...?

Samantha Karner (08:00:35): That is the author's opinion, correct. ... Yes. There has been studies to say that they believe there is flaws in the black box studies and stuff, but there has also been plenty of research done to say the opposite.

Mr. Burt (08:01:25): Do you agree with the conclusion stated in the section of the PCAST report, that neither experience nor professional practices can substitute for foundational validity? ... You agree with the conclusion reached in the PCAST report that a forensic science discipline that has an error rate higher than 5% is not reliable?

Samantha Karner (08:01:45): I do, yes. [As to the 5% figure:] I don't know that I have opinion to that because I think it's a little on the broad side. [When read the exact "less than 5%" language:] I would agree with that statement.

Mr. Burt (08:02:44): And you also lastly referenced your knowledge of the study by the AFTE of that... one proficiency test which you have taken on bullet comparisons, correct? And the error rate in that particular... proficiency test was 20.4%, correct? Item two, 18.2% for item three, and 18.9% for item five.

Samantha Karner (08:03:14): Correct. I believe those were the results. However, I don't agree that proficiency tests are what are used for validation studies to show foundational validity... Proficiency test is looking at the accuracy of an examiner's results, not foundational validity.

Mr. Burt (08:04:08): But you would agree that an error rate of 20% is unacceptable, would establish unreliability, correct?

Samantha Karner (08:04:14): I would agree that those results need to be looked at to see where that error was coming from.

Mr. Burt (08:04:18): Right. Okay. Thank you.

Judge Graf (08:04:24): And Mr. McBride, I'm going to limit you because your objection to going outside and going to 702, you opened the door, but I've got to close that door to some point.

Mr. McBride (08:04:40): I understand that. Your science has been accepted by courts across the country, correct? It's routinely admitted in courts across the country, correct? Your science has been peer reviewed and viewed favorably by numerous publications and studies across the country and across the world, correct?

Samantha Karner (08:04:51): Correct. Yes. That is correct, yes. Correct. Yes.

Mr. McBride (08:05:04): No more questions.

Judge Graf (08:05:07): All right. May this witness be excused? Thank you, Mr. Burt. Thank you, Mr. McBride. Ma'am, thank you for being here. You are excused.

Scheduling, Bind-Over Briefing & Adjournment

Ms. Nester (08:08:11): Thank you, Your Honor... we have just one more witness who would be a fairly short witness, not super long. So I anticipate we will be done tomorrow probably by lunch, I would think... We probably will not need the entire day tomorrow is my suggestion.

Judge Graf (08:08:42): Turning to the state, obviously I'm not holding you to your answer today, but just for guidance, does the state anticipate rebuttal witnesses?

Mr. Grunander (08:09:05): Judge, we don't anticipate any rebuttal evidence that needs to be presented to this hearing. So I think the question would be is are we going to argue the bind over tomorrow? And the state would be prepared to argue bind over tomorrow.

Ms. Visser (08:10:25): Understood, Your Honor. Our request, the defense request is that we be allowed to submit briefing. There are some legal issues that we would like to brief for the court prior to the decision on the bind over. We're open to briefing page limits, time limits, all of that, but we would like that opportunity because there are some legal complexities involved here.

Mr. Grunander (08:12:16): Again, Judge, the state would prefer to argue tomorrow. We think the court has all the evidence before it and could make a bind over decision after oral argument tomorrow. If the court decides that briefing is necessary, I believe the court reporter could have a transcript available as early as Monday of next week on an expedited request... So we're probably six weeks out before we can actually argue before bind over.

Judge Graf (08:14:04): And does your client waive any speedy trial rights that may result as this request?

Ms. Visser (08:14:30): Yes, our client will waive his right, his speedy trial right so that we can properly brief the preliminary hearing issues.

Jeffrey Neiman (08:15:12): Your Honor, obviously we want swift justice for Charlie here... but I think as soon as the matter could be bound over and this matter could be set for trial, that's what the Kirk family would like... We asked for speed. This has been 10 months coming. We've heard a lot of evidence. To me, it seems rather overwhelming, but that's my opinion.

Judge Graf (08:15:58): Having heard from the parties, I will go ahead and... I'm granting the request for briefing as it relates to probable cause to allow both parties to file the briefs.

Mr. Grunander (08:17:54): Judge, if we're able to collect the transcript Monday, if we had two weeks from Tuesday, we could have our motion in. I believe that's the 28th of July.

Judge Graf (08:18:05): All right. So state's brief by the 28th of July, assuming that they can get the transcript by Monday.

Ms. Visser (08:18:16): We need two weeks after that. So August 11th I believe is two weeks.

Mr. Grunander (08:18:28): [Reply] would be seven days after that, Judge. So the 18th.

Judge Graf (08:18:35): August 18th. All right. And for oral argument, what I can set is September 1st in the morning... we can start at 10:00 a.m. on September 1st. How does that look for the parties?

Ms. Nester (08:19:13): Your Honor, I'm going to be in trial that week and I'd really like to be here for this argument. Is there any way we could just do it the next week?

Judge Graf (08:19:20): Well, the problem is... it would be very tricky. This is a fortunate opening. ... September 1st at 10:00 a.m. And it sounds like up to two hours per side.

Mr. Grunander (08:19:55): Judge, page limits. We spoke as a team and our preference would be to limit at least the initial briefs on both sides to 30 pages, no longer than 30.

Ms. Visser (08:20:10): I'd like to counter with 40.

Judge Graf (08:20:47): We will set it at 35 pages and then we will go half of that... We'll go with 18. So 35 pages for the initial filings, 18 [for the] reply, and September 1st at 10:00 a.m. Anything further for this evening?

Mr. Grunander (08:21:05): Yes, Judge. I believe the Kirk family, there's a ruling that was reserved by the court with respect to publication of an exhibit that probably needs to be addressed.

Jeffrey Neiman (08:21:30): Your Honor, I believe it was enhanced in that it was like zooming in and circles that were put on it. We would ask for the entirety of that exhibit to be displayed in court. So I believe it was about eight minutes, if I'm not mistaken.

Judge Graf (08:21:46): What [I] can do is at the conclusion of defense's presentation of whatever witnesses they're going to do, we can address that... I will grant that request and that will be played in open court and we will watch the totality of... state's Exhibit 12.1, which is eight, give or take, two minutes.

Ms. Nester (08:22:56): Your Honor, and just to clarify, it will not be televised, correct? It's only for people in the courtroom.

Judge Graf (08:23:04): That is correct. Because the request was made by the victim representative who is present in court, I will grant that request and it will be played in the courtroom for all present to see, but not to be broadcast on TV.

Ms. Nester (08:23:19): And we just would like a continuing objection for all the reasons we raised before, Your Honor.

Judge Graf (08:23:24): Thank you. I appreciate you making that record. I note the standing objection. That objection as it relates to this request is overruled and that will be played at the conclusion of defense's presentation of evidence... Thank you all. I appreciate your hard work today and that concludes court. We are in recess till nine o'clock tomorrow morning.

(Court adjourned. The proceedings will resume with one final defense witness, the playing of Exhibit 12.1 in the courtroom, and — following briefing — bind-over argument on September 1.)

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