The Future of the Tyler Robinson Case ft. Andrea Burkhart

00:00:03 Speaker 1: My name is Charlie kirk I run the largest pro American student organization in the country, fighting for the future of our republic. My call is to fight evil and to proclaim truth. If the most important thing for you is just feeling good, you're gonna end up miserable. But if the most important thing is doing good, you'll end up purposeful. College is a scam, everybody. You got to stop sending your kids to college. You should get married as young as possible and have as many kids as possible. Go start at turning point you would say college chapter. Go start atturning point youould say high school chapter. Go find out how your church can get involved. 00:00:37 Speaker 2: Sign up and become an activist. 00:00:39 Speaker 1: I gave my life to the Lord in fifth grade, most important decision I ever made in my life, and I encourage you to do the same. 00:00:45 Speaker 2: Here I am Lord, Use me. 00:00:48 Speaker 1: Buckle up, everybody, Here we go. Noble Gold Investments is the official gold sponsor of the Charlie Kirkshaw, a company that specializes in gold iras and physical delivery of precious metals. Learn how you could protect your wealth with Noble Gold Investments at noblegold investments dot Com. That is Noblegoldinvestments dot com. 00:01:17 Speaker 2: All Right, so I'm really excited about this next guest because she somebody that I've been watching online and she's she's not like I've never even met her before, but she just calls balls and strikes and that's what caught my attention. And she's been paying very close attention to the Tyler Robinson trial. Her name is Andrea Burkhart. She's a legal commentator, an experienced trial and a pellet litigator. You can follow her on substack at Andrea Burkhart dot substack dot com and we'll put that url on the lower there. 00:01:48 Speaker 3: Welcome to the show, Andrea, Hey, thanks so much for having me. 00:01:51 Speaker 2: And thank you for your live streams and for your substack. The whole team here has been reading them. We kind of become aware of you, and you know, I candidly like, sometimes I wish you would be more aggressive because I'm like, you know, I have a POV, but you you are very kind of no. We need the work that, yeah, we need it, and I think you add a lot of clarity to a lot of people who don't understand the way that criminal trials play out. So we had a big hearing on Friday, and it was the longest I even think most substantial one that we've had. And a lot of news was sort of made during this this uh this Friday hearing, and you did a whole sub stack on this DNA data that the defense is requesting, and they're saying that they don't have it and therefore they need like six more months. So I'm gonna play that clip and get your reaction to it. Top five. 00:02:42 Speaker 4: We can't present any expert testimony on DNA without having the underlying data. Second step, if the state doesn't want to call the front examiners from the ATF and or the FBI as witnesses, we also have the right to call them as witnesses, but I can't examine those witnesses without the data. 00:03:13 Speaker 2: Okay, So make heads or tails for this is the state doing something nefarious? Are they underhanded? The floor is yours. 00:03:21 Speaker 5: Well. 00:03:21 Speaker 3: I think where a lot of confusion is arising over this particular issue is that, from my perspective, it has far more to do with the timing of what the defense is asking for than whether they are entitled to certain items of evidence, or you know, their requests are unusual or anything like that. And so what's an issue in this particular case is not whether the defense should be able to litigate the DNA and the testing process that has been used by various investigators, but whether they are entitled to that right now as a condition to going forward with the preliminary hearing. And so the focus of my much of that argument in hearing on Friday was based on the limited scope and purpose of a preliminary hearing, and what goes along with that is the limited rights that the defendant has in that particular context. Due process in general is a concept that is it's not universal, it's very much defined by the nature of the preceding and the risks involved. And so because of preliminary hearing is really just there to sort out cases that shouldn't have been filed in the first place, that are so lacking in evidentiary basis that the defendant shouldn't be required to go through the expense and stress and so forth to defend himself at a trial. Because that's the limited purpose, the rights that go along with that purpose are similarly limited, and so UTAH has a bunch of rules about the extent to which the de defendant is entitled to discovery before going forward with the preliminary hearing, and the way that the court processes the evidence that it hears at the preliminary hearing and so forth, and so because of that, where I think there is kind of some conflation that's going on here is whether it's unrealistic for the defendant to be asking for this information period versus whether we're really. 00:05:28 Speaker 6: Just talking about a question of timing and the kind of. 00:05:32 Speaker 3: Ordinary course of discovery that leads up to being able to more fully flesh out these particular types of issues at trial. 00:05:41 Speaker 2: So, Andrew, are you saying that it's not unusual for them to want the underlying data for this DNA testing. You're just saying that, based on Utah law and fact, this is a limited scope pre trial hearing that the state is not required to at this point, so it wouldn't be unusual that they haven't turned this over at this point exactly. 00:06:00 Speaker 3: I think that's a very fair description of what is going on. These issues with DNA evidence really are fascinating and are are kind of on the cutting. 00:06:09 Speaker 6: Edge of. 00:06:11 Speaker 3: Just the intersection between courts and science. Courts are often years, if not decades behind the rest of the world when it comes to evaluating scientific technologies and really whether they belong in court or not. And with DNA evidence, we're talking about evidence that can be very complex, and it can involve a lot of statistical calculations and things like that that the defense has every right to vet and frankly every expectation that they'll be given the opportunity to do that, especially given the circumstances here where we're talking about a capital case. A man's life is on the line here. But again that's just not the same thing as saying they have a right to do that right now. In the context of this particular hearing. In the Friday arguments, the defense had referenced distinctions between what they perceived as quote unquote Daubert issues and material that they, in their opinion I thought was necessary to go forward with the preliminary examination. So the Daubert hearing is a legalese reference to a type of hearing that challenges the fundamental scientific reliability of some of the state's evidence. So I'm absolutely anticipating we're going to have Daubert hearings in this case, probably not just on the DNA but on some other scientific issues. As well, but that is the type of issue that takes place much further down the road and closer to trial. 00:07:49 Speaker 7: So I think that's what you're saying here is getting at the heart of what I think makes a lot of observers who don't normally watch the court so much that makes this whole thing feel odd to them. You're mentioning this is reasonable, but it's so early. 00:08:01 Speaker 2: In the process. 00:08:02 Speaker 7: This is in the lead up to the preliminary hearing. The murder of Charlie happened seven months ago, and you, as an experienced attorney. Is it normal, whether in Utah or just across the country, for a case of this nature to take this long to get to a preliminary hearing? Is this something that's become more common over time, like maybe courts have slowed down a lot since COVID or something. Help us for those of U who aren't professionals. How normal is the situation we're seeing unfold here? 00:08:35 Speaker 3: Sure, so far, there's nothing about the time frames that strike me as extraordinary. In some of the legal documents that have been filed in the case, the defense has pointed to other cases in Idaho capital cases that involved even longer time frames to get to the preliminary hearing. So in and of itself, that's not unusual. And anytime you're dealing with a capital case, you're always he's dealing with a process where the parties are going to be so much more careful, not just because of how much is at stake, but because everybody is already anticipating down the road the possibility of challenges on appeal in a post conviction context and a habeas corpus context in federal court, and so it's really important to kind of clear the field of potential challenges in a case like this, because nobody wants to come back and do it over again, and so the thoroughness of the process is very much a concern for all of the participants. But it is very normal for for folks who haven't watched a lot of criminal cases or are you know. I think a lot of people that were affected by Charlie's death are interested in this case, and it's it's one of the things that is kind of kind of a kind of a silver lining, I suppose if you look at it, is because the criminal courts are such an important part of the government in this country. Is so much much power and influence over people's lives, and yet it's often kind of under examined relative to what's going on in the legislature, what governors are doing, and executive actions and so forth. So this is a real opportunity for a shift for people to learn more about what is such a fundamental aspect of how justice is done in our day to day communities that we participate in, and so to the extent this case is going to provide that learning opportunity, I'm grateful that I'm having the opportunity to share some of my experience and help people put some of these issues in context. 00:10:47 Speaker 2: Well, and I'm going to play the clip now because we run out of time in this segment, but we're going to get to it in the next. And it's interesting because the defense is admitted that they haven't even reviewed everything they've been given. 00:10:58 Speaker 8: Not four has to defense reviewed all the discovery that has been presented up until this point in preparation for a preliminary hearing set for next month. 00:11:08 Speaker 4: If the court is saying, have you reviewed the thousands that have that? Have the lawyers reviewed the thousands and thousands and thousands of pages of discovery that are well documented in the index that mister McBride provided the court privately. The answer is no. Our parallegals are doing their best to organize it. But have Kensel reviewed that discovery and have we had a reasonable time to do so. 00:11:35 Speaker 8: No. 00:11:36 Speaker 2: The defense admits that they haven't reviewed all the documents they have, but yet they want more in they're requesting a six month delay, which, Andrew, you can imagine if you're on our side of this feels like an eternity. So is that normal? Do they have a leg to stand on here? 00:11:51 Speaker 6: Well? 00:11:51 Speaker 3: I think it's normal for them to make the ask, but as far as the expectation of getting it, it seems that their prospects are probably pretty low. This has both based on the legal arguments that were presented themselves, as the state seems to pretty clearly have the strong side of the legal argument, but also potentially by some of the comments that the judge had made during the hearing. You don't always want to read too much into those, but you can sometimes get a little sense of how the judge is thinking about the issue, and he does seem to be persuaded by the argument the state made that because this is such a limited scope hearing. There's no necessity for the defense to be able to do the type of investigation that they're requesting to do before the preliminary hearing as far as not having the opportunity to review the discovery. This is life as a public defender. They're dealing with a volume of data that is extraordinary. We've heard various estimates throughout the court process two hundred plus terabytes of video data just from the UVU campus, twenty four terabytes of data just from extractions from different devices, meaning cell phones, computers, things of that nature. And that's above and beyond reports and analyzes, interviews, and so forth that have been conducted by hundreds of law enforcement officers and dozens of different agencies. So it is a massive volume of information to process, and that is just kind of part of the life of being a public defender. Saw I followed also very closely the Brian Coberger case, which has come up many times kind of by analogy in this proceeding and in the Brian Coberger case, there were years of pre trial proceedings leading up to the trial that ultimately didn't happen, but we were getting close to that point in time and the defense is still at that point having a very difficult time being able to go through all of the information that's handed over. So having a high volume of information to process not at all unusual defense lawyers, particularly ones with the degree and type of experience as many of these team members do. I call Richard Novak and Michael Bert in particular, some of the most qualified capital defense attorneys in the entire country. They're accustomed to evaluating what they have and prioritizing what needs the most attention and what doesn't. So it's certainly not a perfect system for all kinds of different reasons, but these particular issues with just needing more time, more hours in the day, these are kind of universal and they persist throughout the process. 00:14:47 Speaker 2: So there's been another issue raised, Andrea. You know, when it comes to this constitutional right to a speedy trial, right that's supposed to be for the defendant, not for the victims of or the family members of the victim in this case would be like Erica, for example. So I want to play a cut here and get your reaction to it. 00:15:07 Speaker 8: Top three, So how do you propose the court balance your request for a potentially large, a long delay against the constitutional rights of victim or representative. Mss Kirk in her right to a speedy disposition of the case. 00:15:25 Speaker 2: So Andrew who has a right to a speedy disposition of the case. 00:15:29 Speaker 3: So in Utaw, both the defendant and the victim have a right to a speedy disposition. Speedy trial rights are guaranteed to criminal defendants under the United States Constitution, but a variety of different states have enacted protections for victims, either through statute or as Utah has done by constitutional amendment. 00:15:53 Speaker 6: And so. 00:15:55 Speaker 3: These rights typically include things like rights to notice, rights to participate and be heard, And in the case of Utah, they have provided victims with rights to a speedy trial. And so what that means is a practical matter. The way that it works in Utah, it doesn't give the victim the right to trump the defendant's ability to prepare for trial or anything like that. 00:16:20 Speaker 6: But what it does do is it indicates that a continuance. If the victim has invoked the right to a speedy trial, then a continuance has to be necessary. The court can't just rubber stamp the parties continuing to kick the can down the road, even if they agree to do that. Just because they kind of want. 00:16:39 Speaker 3: To, or it's more convenient or something like that. There needs to be a justification for it, because Utah courts have recognized that for cases to linger this does have significant effects on the victims of crimes. It prevents the victim from being able to kind of kind of heal and move on. 00:16:59 Speaker 6: It creates impediments. 00:17:01 Speaker 3: This is particularly the case with somebody like Erica, who is a public figure who normally would would speak about issues like this and the process and stuff like that. But because there is this trial that's pending and the risk that comments made outside of court could potentially taint the jury pool, there's a strong incentive to. 00:17:30 Speaker 6: Be quiet and not talk about these types of things. 00:17:33 Speaker 2: Can we pause just on that point. It's such an important point you just made, and I think you know, we've seen all these conspiracy theories all there's this huge vacuum because people like Blake and myself and Erica, we're not really permitted to speak about so much of this case because it can be brought up in court, and they in fact did that in this hearing on Friday. The very limited things that Erica has said was even mentioned in court. So it's it's one of the reasons that I think states like Utah have this expedited or at least at the interests of the victims are represented in the constitution state constitution level, and people don't understand that. They think of a right to a speedy trial as just representing the defendant. 00:18:17 Speaker 7: But actually I think some people sort of in their head are also inverting it that like the right to a speedy trial sort of carries by implication, the right to unspeedy the trial as well, if they want. Yes, I think I think I'm detecting that in a lot of yeah, yeah, you're. 00:18:30 Speaker 2: Right, you're right, and almost like if you want to speed up the proceeding or if you want it to go to a regular pace, it's somehow sort of nefarious or but listen, we're looking at a trial start day, Andrew, and we've only got thirty seconds left in the live show here and we'll keep you after and so for those of you watching, please check out the podcast. But we're thinking like January or something, right if it doesn't get delayed another six months. 00:18:55 Speaker 3: So I am not expecting the preliminary hearing to be signific ken'tley delayed. Now the trial itself, frankly could still be years down the road. We don't have a trial setting at this point in time. It is normal for capital cases to take a long time to prepare. 00:19:14 Speaker 2: We've been really fortunate to work with a lot of great partners over the years at the Charlie Kirk Show, but some relationships are just different. 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Let me say that one more time eight seven seven six four six five three four seven, or head to Noblegoldinvestments dot com. Noble Gold Investments is standing by and ready to help. These are great people and we're so glad to be working with them again. 00:20:28 Speaker 7: All right, Andrea, So yeah, let's let's continue on that thread. You say you don't think the preliminary hearing is likely to be delayed, so we may finally see that within May, come tom May, end of May. But then you're saying the trial could be years away. What what's your I don't know. Let's let's play polymarket here. What would your what would your bet be on when we might finally start trial and paneling jurors for this trial. 00:20:54 Speaker 6: Early twenty twenty eight. I would I would put the over under on early twenty twenty eight. 00:21:00 Speaker 3: Just the nature of capital cases and UH in a case like this as well, it's already being kind of foreshadowed that there are going to be many technical uh types of challenges to the evidence. 00:21:14 Speaker 6: And that's one of the. 00:21:15 Speaker 3: Purposes that capital litigation serves. Is it's it's the vehicle where a lot of these cutting edge and UH critical issues involving scientific evidence and in process and things like that get played out, UH because everything is at stake here. 00:21:36 Speaker 2: And so. 00:21:40 Speaker 3: What what I think that means in practical terms is that anytime you're looking at something like the defense clearly wants to challenge the statistical basis for the type of conclusions that are going to be presented visa vi. The DNA samples. This is a particularly complicated issue from a scientific standpoint, because we know from some of the court UH presentations that we are dealing with at least some mixtures, and so interpreting interpreting DNA mixtures is a complicated statistical question. And so it's very reasonable for from my perspective, for the defense, particularly in a capital case, to be wanting to examine that extremely closely and challenge if the evidence justifies some aspects perhaps of the state's testing process or their their analysis and in their conclusions. But that type of thing does not happen quickly, and that's particularly the case with the types of challenges that they seem to be teeing up here. There's a particular UH probabilistic genotyping program called str MIX that's commonly used to interpret mixed DNA samples. And when I say interpret mixed DNA samples, what I mean is they can look at a mixture and figure out if a defendant can be excluded as a contributor, meaning there's no way he contributed any of the DNA that's in this mix. But if a person's DNA is included in the mix, all that means is it's consistent with this person's DNA, but we don't know how many other people it could potentially be consistent with. 00:23:27 Speaker 6: And so that it's the significance. 00:23:29 Speaker 3: Of that that that inclusion that's what's at issue in evaluating, well, is this evidence important or is it not important. If we're just talking about a match of portions of the DNA code that every person on the planet shares, then it's not at all surprising that the defendant's DNA would be included. So it's the significance that this statistical calculation is getting at, And so the defense is asking for, for example, the underlying source code for the str mix program, a lot of the validation materials and things like that. These are issues that are potentially going to require litigation because we're talking about access to third party proprietary software. 00:24:14 Speaker 2: Is that is that normal to ask for the source code of a private company? I mean that seems like the company would not want that to be shared for proprietary business reasons, right. 00:24:26 Speaker 3: Sure, And the companies are not necessarily you know, bending over backwards to volunteer this information. But yes, this is actually pretty normal for this type of litigation and these types of challenges because it goes to establishing the underlying validity of you know, what comes out of that of that computer. It's you know, there's always a risk of garbage in, garbage out, and so you need to know what the computer is relying on and how it's functioning when it processes this information to know if you can trust the output. 00:25:01 Speaker 6: From it or not. 00:25:02 Speaker 3: So it's not revolutionary that this has been an issue. It's commonly an issue in forensic science in general because one of the factors that goes into the admissibility of scientific evidence in court involves it hasn't been well studied, is it pure reviewed, has it been replicated? Is it transparent? So with str mix in particular, this has been a subject of litigation in many many courts to such an extent that str MIX now actually provides a mechanism for defendants to defense attorneys to directly be able to access this. 00:25:44 Speaker 6: They don't need. 00:25:45 Speaker 3: To go through the FBI or another agency. They can go directly to sdr MIX. But there are conditions on that is subject to signing a non disclosure agreement. It's subject to you go and inspect it on their computers. You don't get your own copy. And it's precisely for those reasons that you mentioned. This is proprietary, it's a trade secret, and so companies are absolutely going to want to keep as much protection of that intellectual property as they're able to do, but at the same time recognizing there needs to be a compromise for the transparency and the assurance that what's being offered in court is in fact legitimate, and so that appears to be where the balance has been struck. 00:26:30 Speaker 7: Andrew, first of all, thank you for how thorough you are on all of us. I think this has really helped explain things that have been confusing to us, to other observers who are following this. So you predicted we won't get a trial till twenty twenty eight. I think all of us here, Andrew and I certainly both grown as soon as we heard you say that. I think a lot of other people are feeling the same way. There's a dimension I want to get at with this. You've mentioned the reason this goes on so long. Is there really being thorough in all the procedural stuff, because there's so many added protections in capital cases, in murder cases, of high profile cases in general. But I think one thing we're all thinking about, let's be frank, there are a lot of really bizarre, really aggravating theories conspiracies that have emanated around this case. And when you say early twenty twenty eight, my immediate thought. 00:27:23 Speaker 2: Is, well, there's two years of free. 00:27:25 Speaker 7: Content for the people who have been pushing that, And I don't know if they'll push it that entire two year span. But we're at month seven of this being a full time passion of some people, And I guess, what's the risk that this endless obsession from podcasters, from people on X of pushing weird conspiracy theories really muddying the waters around this case? Will that affect the case one way or the other? Are we going to maybe even if we complete the trial, maybe the trial ends in a conviction. Can they immediately turn around and just bring you this endless legal case saying, well, this entire case was compromised by the public attention pushing weird stuff about it, and so we need to throw out the result or something. 00:28:09 Speaker 3: Well, you can kind of see to some extent, the defense is already positioning itself to raise issues about the public commentary about this case. From the legal perspective, where this tends to intersect with appellate issues that can generate a new trial, relate to the effect that this type of information can have on the jury pool. And so it's the longer, yes the case goes on, and particularly cases that get a lot of attention like this case, the more commentary is out there, the more chances there are forgerors to not just be exposed to it, but to become kind of enmeshed in it, you know, and to be influenced in their in their worldview by it. So there's a presumption in the law that you deal with these issues through jury selection, that you take care to question the jurors about what do they know about the case, what sorts of opinions, have they formed their ability to remain open to new information versus having a fixed opinion, And so we can already anticipate that these are going to be issues that the defense is going to focus on in the trial. 00:29:25 Speaker 2: Yeah, Andrew, you mentioned that the defense is going to be focused on them, but isn't there just as much room for the prosecution and the state to be focused on them as well, Because to Blake's point, this countain a jury pool, right. All it takes is one juror that listens to a certain podcaster and it's and maybe that's the whole point. 00:29:42 Speaker 1: Oh. 00:29:42 Speaker 3: Absolutely, the state is going to be very concerned about this as well, and they highlighted that in Friday's hearing as well. The fact that this commentary the defenses is complaining about the cameras and the potential to taint the jury pool, and the state is pointing out the commentary has not at all been been you know, uniquely favorable to the state, which from my perspective, again is a career criminal defense attorney and a you know, legal commentator. That's pretty unusual most to the time when you get a lot of publicity about about a high profile criminal case, it tends to be guilt presumptive and in guilt favoring. So both of the parties are going to be on the alert for this during the jury selection process. The Court's going to be alert to it as well. When I say that the defense is setting this up, what I mean by that is that it's the defense that primarily enjoys appeal rights and has the opportunity to challenge the process and try to seek a new trial. The state doesn't have the right to appeal and acquittal. If you were found not guilty, then that's the end of the road, the double jeopardese And. 00:30:51 Speaker 2: What about a hung jury for example, I'm just curious, So what is that and what would then be the ramifications? 00:30:58 Speaker 3: So a hung jury is when the jury can't unanimously agree on either guilty or not guilty verdict. They are too divided to be able to resolve the differences of opinion that they have. A hung jury amounts to a mistrial, and so that's a very limited set of circumstances because there has been no final decision about the merits of the case. Then retrial is allowed, so they could go back and attempt a retrial in that situation. 00:31:29 Speaker 7: So the obvious question, you predicted basically two and a half years to get to a trial the first time. If we got a hung jury, how long would that plausibly take to start and finish. 00:31:41 Speaker 3: So, typically it doesn't take nearly as long to retry a case as it does to try it in the first instance, because much of the work of preparing for the trial is already done. The discovery has been conducted, it's been closed, the witnesses have been identified, and so forth, and many of the issue that may come up surrounding what comes in at trial, if there's evidence that should be suppressed, if there's evidence that isn't admissible for scientific reasons, and things like that, those decisions have already been made and they tend not to be re litigated just because you know, one trial ended without a without an outcome. So a miss trial retrial can can typically occur much more quickly than the trial in the first instance. 00:32:27 Speaker 2: So, Andrew, I want to play this clip here because I think it was shocking for a lot of people when this was revealed in court that there was actually camera video of Tyler Robinson in the sniper's perch, allegedly allegedly this is so I'll play the clip and then you tell me what was actually being said here too. 00:32:46 Speaker 5: He then leaves the campus. You've used surveillance then captures him return later. He returns on foot right before the Charlie Kirk event. He's wearing a disguise of sorts. He's limping because there's a rifle down its passed. The surveillance captures this individual, but he makes his way to the rooftop, makes his way to the sniper's perch on the rooftop, takes the shot and then runs to the northeast, drops off the building, and runs the northeast of campus into a wooded area that's all captured on video. 00:33:19 Speaker 2: So I thought this is interesting because we'd seen publicly released video of him sort of jumping off the building and then kind of you know, in and out ingress egress from the venue itself, but we don't know what video that they have. Specifically, there's a bunch of YouTubers that have gone to the venue, to the campus and seen where the camera angle should in fact be able to perceive that perch where the shot is supposed to have taken place. So I guess one question I have for you is what did you make as an outside observer of the evidence that they already have presented? Was it new to you? Is it shocking to you? And who do you think had the more I guess persuasive day in court on Friday? 00:34:04 Speaker 6: Oh, I think. 00:34:05 Speaker 3: It's It's unquestionably a stronger day for the state than it was for the defense on Friday, and largely because of this proffer that the state offered of what they expected to present at the preliminary hearing. It is a considerable volume of evidence. It is evidence that corroborates itself, and so it presents a very very strong and and persuasive case. Frankly, even in the trial context, if they can present what they have, we're in a pretty good position relative to many, many, many other cases. So, I, being a lawyer, am familiar with the wordsmithing that lawyers often do and the ways that things can be stated or implied. I think, yeah, may may or may not mean more than we think they do. So I personally am not inferring too much from from what mister that was mister McBride, the prosecutor, had to say about what the video evidence consists of. What I can say is that he presented it in a context where he's explaining this surveillance is comprehensive over the entire campus and you know, very extensive system, and so here's what they are going to be able to show. He's in a position where he has to be careful not to overstate what what the evidence is likely to show, because these guys are competing for credibility not just in the courtroom, but also in the court of public opinion. It's just an aspect of what happens when a case is is publicized and it's it's presented to a large audience like this. So the attorney's always kind of have two hats on when they're making public statements in court while the while the cameras are there. 00:36:00 Speaker 2: But okay, well yeah, so no that you answer my question. Well, so whether or not there's video of the actual perch in the shooting remains a little bit vague. We're not sure. It certainly seemed like he was inferring that, but he didn't say it directly. Okay, so we'll we'll hold on that. You said that the prosecution had the better day I want and I and I agree, So I think that's interesting from your perspective. All right, so, and I think we'll try and make this the final kind of line of questioning. But there's been another controversy that's emerged online and it has to do when I've seen you post about it. But it has to do with the timing in which Tyler Robinson turned himself in, when he was mirandized, when he was sending out text messages to this discord chat, when he was you know, all of this. So there there are the allegations. It's even hard for me to fully distill it succinctly, but that basically the timeline of the eleventh and the twelfth when he was arrested, does not line up. That that that that the timeline is all mixed up, and that there was comments by some of the law enforcement that contradicted that timeline. You know it better than I do, candidly, why don't you tell us what the controversy is and what your take of what truth really is? 00:37:12 Speaker 3: Sure, So, first off, after Friday's hearing, and I will explain this in a little bit more detail, I believe that this theory should be put to rest. But the basic gist of it is that the official timeline that we've had for Tyler Robinson's surrender comes primarily from some of the references in the legal documents, but also a public interview that Sheriff Brooksby, the sheriff of Washington County, gave a press conference where he explained that he received a phone call about eight o'clock eight thirty from a friend who knew Tyler Robinson was trying to arrange his surrender, that Tyler and his family showed up at about nine o'clock, and that Washington County was not the primary investigator. 00:37:59 Speaker 6: They did what they call. 00:38:00 Speaker 3: A long and extended agency assist, meaning they're just there to help out Utah County, who's the lead investigator in the case. And so based on that, they conducted no interviews, they did no investigation. Tyler just sat in their interview room while Utah County sheriffs drove the three and a half hours or whatever it is to get down there to take him into custody, transport him back up to Utah County and formally charge him and initiate the legal process. So that's the timeline that's been publicly known. There was some time back, I believe it was Ken Klippenstein, a journalist, had received and published a discord message that was purporting to be from Tyler Robinson, and it's in the nature of a confession. He's advising the members of this discord group that sorry. 00:38:54 Speaker 6: It was it was me at UVU the other day. 00:38:58 Speaker 3: I'm going to be turning myself in. And this discord message was timestamped on September the eleventh at about seven seven to twenty something PM. All of this so far is consistent, it's all, it's all feasible, could could absolutely happen. So what happened is that in a defense motion that they filed. This was the motion that dealt with whether the cameras should be removed from the courtroom or not. The defense included an excerpt from a transcript of Tyler Robinson being read his miranda rights, and he invoked his right to counsel in response to being read his rights. The nature of the defense's complaint was that various public figures like the governor and other folks, made public statements in the press that implied just nefarious things about invoking the right to counsel, that he wasn't cooperating, that this meant he was hiding something, that he's guilty, et cetera. And these are inferences that the jury is not going to be allowed to draw. For example, they'll be explicitly informed that you're not able. You're not allowed to take into account somebody not giving a statement to police as evidence of guilt, because we have an unqualified constitutional right to not provide information to police. So what seems to have happened is that this this miranda transcript is timestamped at six six something PM. 00:40:36 Speaker 6: But it doesn't have a date associated with it. 00:40:38 Speaker 3: So there seems to be a series of assumptions that the miranda warnings necessarily occurred on November the eleventh rather than the twelfth, after he was taken into custody in Utah County, and that therefore that indicates he would have been in custody at six six point twenty, that's an hour before the discord confession was sent. These things can't be reconciled. It's a problem that indicates the discord message is inauthentic. This is the argument. The problem with this is that miranda warnings don't have anything to do with when you're arrested. Miranda warnings are required when you're going to be subjected to a custodial interrogation. This is a term of art in criminal practice. It means that the defendant is in circumstances of the kind that are associated with the formal arrest, and the defendant is the police are going to ask him questions that are intended to elicit an incriminating response. So very routine when a law enforcement agency is going to interview somebody, They set them down in the interview room, read them the miranda rights. You do it on camera, so it's recorded, and there's no question about whether it happened. And this is all pretty run of the mill. So I think what happened is perhaps there was an assumption that because we see it a lot on TV. You know, if you watch Law and Order, you see somebody getting arrested and immediately like put them in the handcuffs and read them the rights as they're taking away. That's a TV thing, that's that's not actually a real life criminal procedure thing. And so there's absolutely nothing in this transcript itself that indicates or even really implies that the interrogation and the warnings being read happened. On September the eleventh, as opposed to September the twelfth. The reason why I think Friday's hearing should dispel this issue entirely is because the state proffered the discord message as one of the pieces of evidence that it anticipates to present at the preliminary hearing, and for the defense, the defense has never said anything about, you know, the timeline is bad or the confession is inauthentic, or anything like that. This, given the context of this argument, would have been a prime opportunity for the defense to say, yes, you're on air, and that, for example, is exactly why we need to have additional time to prepare for this preliminary hearing, because, for example, they want to proffer this discord confession that we have a reason to believe is fake and inauthentic, and we can demonstrate that, and that would defeat probable cause. It's directly implicated by the argument that the sort is considering and the reason why it's brought up in the first place. So the defense's failure to raise any of this is a pretty strong indication to me that it's because there's nothing there. 00:43:41 Speaker 2: Wow, really well done, that's fast. 00:43:43 Speaker 7: That was helpful. 00:43:45 Speaker 2: Yeah, do you have anything else for Andrew while we have her, She's probably got other things to do with her time. 00:43:49 Speaker 7: Yeah, she probably does, but no, again, I want to thank her. This is very thorough. I think our audience especially is really going to appreciate this. These are tough technical topics which we normally are not delving deep into, but here it's very personal, very important, not just for our audience's peace of mind, but we know what's out there, what people have been trying to say to muddy this up. So we're very grateful for you offering professional perspective and experience on that. 00:44:15 Speaker 2: Yeah, thank you, Andre, real pleasure. Yeah, it's been a pleasure. We'll have you out on it again soon. I'm sure having you on for two years. Yeah, I know. I hope you're wrong on that one. I hope you're wrong on that one. I think all of us want to. 00:44:30 Speaker 7: I mean, we're pretty clear on how we feel the evidence points. We want to get some peace of mind for Erica and Franks, for the country. 00:44:39 Speaker 2: Closure. Closure, And I mean, listen, this is me speaking, not you. But if you look at the DNA evidence, you look at the the surveillance evidence, you look at the confessional evidence, you look at the family being involved in turning an evidence. There's a ton there. But you know who am I let's I guess, just wait till twenty twenty eight, right, Okay. 00:44:59 Speaker 3: Frankly, that's that's one of the reasons why it's going to take so long, because this is a very very tough case for the defense and so they they they have to they are duty bound to try to poke holes in as much of what's there as they can because what is there is so potentially damning for their client. So that's just unfortunately the nature of the process. 00:45:22 Speaker 2: Yeah, well, thank you again for your time and for colmballs and strikes. Like I said, you sometimes I read your stuff and I'm like, I wish you would go harder on that, but like you are very sort of per sort of respectfully and I admire the sort of dispassionate sort of center uh that you that you take, and I think it's very educational. So thank you, Andrew. Check out her substack please, I actually really really really recommend our audience do that. It's Andrea Burkhart b U r K H A r t H dot substack dot com. So check it out and follow her stuff. Thank you. YouTube too. Oh and YouTube, what's your YouTube? Andrew? 00:46:01 Speaker 3: My YouTube is You can just put my name in Andrea Burkhart or the handle is at a Burkhart Law. 00:46:07 Speaker 2: Perfect. Awesome. Thank you so much for spending some time with us today. We'll talk to you, Sue. 00:46:11 Speaker 3: Thank you, it's been a pleasure. 00:46:16 Speaker 2: For more on many of these stories and news you can trust, go to Charliekirk dot com.