After reading the transcript of a closed-door hearing for the Utahn accused of killing Charlie Kirk, media attorney Jeff Hunt had a thought: Almost all of that could, and should, have been done in public.
The Oct. 24 hearing was teed up as a debate about whether 22-year-old Tyler Robinson could wear street clothes in court and if he had to wear shackles — topics stemming from a request from Robinson’s defense team, which they asked to discuss in private. When Fourth District Court Judge Tony Graf delivered his ruling days later, he said the public was not allowed in because some of the arguments involved court security.
When Graf ordered the release of the transcript, he said that of the 80-page record, only 246 words were redacted for security reasons, or about one page.
The transcript also reveals that interwoven with debates about clothing and restraints was talk about media access and the public’s significant interest in this high-profile case. The defense wanted Robinson dressed in civilian clothes because images of him are broadcast worldwide and they are concerned about having a fair trial. Defense attorney Richard Novak stated they plan to file a motion to ban all video and audio broadcasts of these court hearings. Nothing has yet been filed.
Robinson has been charged with aggravated murder in the September shooting of Kirk at Utah Valley University in Orem. Kirk’s death and the following manhunt, especially owing to his political connections to President Donald Trump, became news around the world. Prosecutors plan to seek the death penalty in the case.
Hunt represents some of the news organizations that have been fighting for transparency. He was a little surprised and disappointed at how early a camera ban was brought up — “especially given the enormous amount of public interest in this case that they would immediately, the very first thing, seek to restrict public access.”
Another thing that surprised Hunt was a suggestion by prosecutor Christopher Ballard that the judge, in addition to potentially banning cameras, could also restrict journalists in describing what they observe in the courtroom.
“Your Honor controls what happens in this courtroom,” Ballard said in the transcript. “And I think your Honor could say there's to be no comment about the defendant's appearance.”
Hunt said he’s never heard anything like that before and called it prior restraint, a form of censorship. Novak did later say in the hearing that the suggestion was impractical and possibly a First Amendment violation.
Hunt doesn’t think anything in the redacted transcript wouldn’t, or couldn’t, have been said in public. That’s why he thinks the two-hour hearing could have taken place almost entirely with open doors, only closing them for a few minutes.
“Having open proceedings keeps everybody accountable,” he said. “And allows the public to hear and see what they're saying and the arguments they're making in real time, which is the way it should occur.”
There’s no substitute, he said, for seeing the unvarnished version of what’s happening in a criminal case, allowing the public to judge for themselves.
Attorney Michael Judd, who represents another set of media outlets, including KUER, had similar takeaways. Judd acknowledged that it can be hard in these situations to untangle what requires secrecy.
“I think it just reflects the fact that this stuff is hard and without somebody there to represent the public's interest, to say, ‘Hey, I know it might be easier on the state and on the defense to just close the doors, but there are other people whose interests need to be respected here,’” Judd said. “Without some sort of intervening voice like that, it's too easy to just say, ‘We could make this all simpler by closing the door.’”
This isn’t just a media access issue, Judd said. When the doors are closed in criminal proceedings, it's hard for the public to understand what’s happening inside and have confidence in the outcome. Kirk’s widow, Erika Kirk, has said she wants cameras in the courtroom and transparency in this case.
“Without access, people's imaginations about what is going on behind those closed doors is almost always wilder than the reality,” Judd said. “Opening the door and allowing the public to see that oftentimes dispels the kind of conspiracy theorizing and the types of doubt-stoking that happens without access.”
Public access also helps people understand the criminal justice system, including the state’s power to put people behind bars or, in death penalty cases, end their lives.
Media and public access in this case is likely to stay a hot topic. Kirk’s assassination was witnessed by thousands at Utah Valley University and shown on social media to millions.
Hunt hypothesizes that all parties will be more careful about blanket sealing of documents of hearings in the future. Before the October hearing, there was no opportunity for the press or public to object to the closure. Going forward, if the defense or prosecution wants a closed meeting, they’ll have to file a motion and notify the media attorneys.
“I think the judge has signaled that this is, this is going to be public proceeding and closure is only going to happen in the rarest of circumstances,” Hunt said.
Judd anticipates that the defense will likely file its motion to keep cameras out of the courtroom in January.
