The defense for Charlie Kirk’s accused killer, Tyler Robinson, is arguing that the Utah County Attorney’s Office should be disqualified from prosecuting the case.
Robinson again appeared in person Jan. 16 before 4th District Court Judge Tony Graf. Like the December hearing, Robinson’s family sat in the front row, and the 22-year-old nodded at them as he walked into the courtroom.
The original intent of the hearing was for both sides to present evidence to help the judge decide whether prosecutor Jeff Gray’s office should be barred from prosecuting the case, though the day’s proceedings ran long and ended without any firm conclusions.
A deputy county attorney, whose name hasn’t been publicly released, has an adult daughter who was in the crowd of thousands at Utah Valley University when Kirk was shot. At the time, she ran into a building and then texted her family, including her dad, “SOMEONE GOT SHOT,” followed by a text that said “CHARLIE GOT SHOT.” The attorney was with Gray at the time.
Defense attorneys argue that this represents a conflict of interest for the prosecutor, as well as the office’s entire staff, because, as they see it, the office did nothing to mitigate the attorney’s potential prejudice. They contend it isn’t practical to expect the attorney to separate his “natural instinct to protect and shield his [child] from past and future harm, from his role in the prosecution of the individual alleged to have caused harm to many.”
They also argue, “The rush to seek death in this case evidences strong emotional reactions” by the unnamed attorney and the entire prosecution team.
The Utah County Attorney maintains that there is no conflict of interest. In an affidavit, the attorney’s 18-year-old daughter said that while she was scared during the shooting, she has suffered no lasting trauma. Prosecutors added she was 85 feet away from Kirk, didn’t see him get shot, and she was also not in the shooter’s line of sight.
Gray was questioned on the stand by defense attorney Richard Novak about whether he consulted the Utah Attorney General’s Office, the state bar, an ethics expert or another entity about whether this was a potential issue.
“I consulted no one other than my team,” he said.
Gray added that he had worked in the state attorney general’s office for more than two decades before moving to the county. There, Gray said, he consulted with prosecutors on issues. He felt he knew how to handle this one. He said he didn’t remember having any conversations with the prosecutor in the days after the shooting about how he or his child was doing. Gray noted he probably should have asked, but didn’t.
The defense only got partway through its examination of Gray, despite a hearing that lasted four-and-a-half hours. The county prosecutor is the first of four witnesses the defense plans to call on its disqualification point. Much of the hearing was tied up in debate over how to handle parts of this case. After 5 p.m., both sides agreed to punt the rest of the examinations to Feb. 3.
That means the issue of whether the county attorney’s office should be disqualified is nowhere near being settled.
Another wrinkle was that Novak brought up a new argument that surprised the judge and prosecutors. Because of the conflict of interest issue, the defense team said the Utah Attorney General’s Office needs to step in as a special prosecutor, meaning independent of the county.
“The Utah County Attorney's Office is now serving two masters. I don't like that word, but that's the word in the doctrine,” he told Judge Graf. “They're representing themselves, and they're representing the state of Utah.”
By representing themselves, Novak explained that the Utah County Attorney was representing their own interests in continuing to prosecute this case.
“And that's why the attorney general or somebody else designated by the attorney general should be representing them in this manner,” Novak argued.
The judge questioned why the defense didn’t file a motion earlier. Prosecutors called it an ambush and a stalling tactic.
Graf ruled there wasn’t sufficient evidence, based on their written arguments, that another office needed to step in because of a conflict of interest.
Another issue was whether to close the courtroom to the public when witnesses took the stand. Prosecutors wanted the hearing private to prevent the disclosure of the names of witnesses, such as the 18-year-old daughter.
“This case has polarized the nation in many ways, and there have been death threats made against other witnesses,” said Deputy Utah County Attorney Ryan McBride. “Been threats against counsel, our office has received threats. Doxing is a real thing.”
Graf ruled that he wouldn’t do a blanket closure on the hearing, but would consider it on a case-by-case basis before witnesses take the stand.
Cameras in the courtroom were a point of contention, as it has been throughout the early stages of this case. The defense filed a sealed 262-page motion that day to ban cameras from the courtroom.
Partway through the hearing, the defense alleged that the pool videographer for journalists had at least twice violated a standing order by capturing Robinson’s lips as he spoke with attorneys. They argued lip readers could be used to translate confidential information. Graf agreed and banned the videographer from filming Robinson for the rest of the hearing.
Kirk’s widow, Erika Kirk, filed a document with the court during the hearing to assert her right to a speedy trial.
“This Court is tasked with the critically important function of ensuring the Defendant has a fair trial, but this Court must also do so while balancing Mrs. Kirk's right to a speedy trial and therefore this Notice invokes Mrs. Kirk's rights under applicable Utah Code,” her attorney wrote.
If convicted of Kirk’s murder, prosecutors have said they intend to seek the death penalty.
