Judge (00:09:23):
Calling case number 251403576, State of Utah versus Tyler James Robinson. Counsel, please enter your appearances.
Counsel (00:09:34):
Chad Grumander, Ryan McBride, David Sturgill, Lauren Hunt for the state. Jeff Gray, the county attorney as well, Chris [inaudible 00:09:41] are also present.
Judge (00:09:43):
Good morning.
Counsel (00:09:45):
Good morning, Judge.
Ms. Nestor (00:09:45):
Morning Your Honor.
Speaker 1 (00:09:46):
Good morning Your Honor.
Speaker 2 (00:09:49):
Good morning Your Honor.
Judge (00:09:50):
All right.
Ms. Nestor (00:09:51):
Kathy Nestor, Michael Burt, Richard Novak, Stacy Visser here for Mr. Robinson, who's seated to my right.
Judge (00:09:58):
Good morning, counsel. Good morning, Mr. Robinson. And for the record, the court also recognizes the presence of victim representative, Ms. Erica Kirk. Good morning. First, with respect to courtroom protocol to maintain security and decorum, any individual who exits the courtroom during proceedings will not be permitted to reenter until recess. All counsel are expected to take reasonable measures to safeguard confidential communication. Such measures may include the use of screen protections on electronic... All right. Is the audio working?
Speaker 1 (00:10:40):
Sorry, Judge. The WebEx audio's not working.
Judge (00:10:44):
All right. Let's just take a brief moment. And just let me know when it appears to be working. While we're waiting, if you have any water bottles or such, feel free to drink them. It is a little bit warm in here today, so I will be drinking from my water, so don't hesitate to use that if you need to. I wonder why they're doing that. Is it working?
Speaker 1 (00:13:22):
It's not working at the moment.
Judge (00:13:26):
Can you send them a link to where this is being streamed so they have something to look at? I see. All right. All right, let's go ahead and continue. And let me repeat it just because the audio may have cut out. All counsel are expected to take reasonable measures to safeguard confidential communication. Such measures may include the use of screen protections on electronic devices and care to avoid the inadvertent capture of privileged or private discussions by recording equipment or by those present in the courtroom. Second, the court will address the camera operator and still photographer, and I will invite you to come forward. All right. The purpose of this is to ensure clarity regarding the expectations governing today's proceedings. Could you both state your name for the record?
Trent Nelson (00:14:33):
Yes. Trent Nelson with the Salt Lake Tribune as the pool steel photographer.
John Wilson (00:14:37):
John Wilson from KSL Television, video photographer.
Judge (00:14:40):
Good morning to you both. Have you reviewed the court's standing decorum order?
Trent Nelson (00:14:44):
Yes, Your Honor.
John Wilson (00:14:45):
Yes.
Judge (00:14:46):
Do you understand the requirements set forth in that order as they apply to your activities today?
Trent Nelson (00:14:50):
Yes.
John Wilson (00:14:51):
Yes.
Judge (00:14:52):
Do you require additional time to review the order or to adjust equipment to ensure compliance?
Trent Nelson (00:14:55):
No.
John Wilson (00:14:57):
No.
Judge (00:14:57):
Okay. Do you anticipate any difficulty complying with the order or with the court's instructions?
John Wilson (00:15:04):
No.
Trent Nelson (00:15:04):
No.
Judge (00:15:06):
All right. Well, thank you.
Trent Nelson (00:15:07):
Thank you.
Judge (00:15:07):
I appreciate your cooperation today. As we begin this morning, the court wishes to acknowledge the importance of the safety, dignity and wellbeing of all those who are present or who may be present during these proceedings, including the parties, counsel, witnesses, court staff and members of the public. The court is also mindful of its solemn obligation to protect and uphold the constitutional rights of both Mr. Robinson and Ms. Kirk. In furtherance of those important interests, all persons attending these proceedings are reminded that portable electronic devices are not permitted in the courtroom or on the fourth floor. The court also expects every person in attendance will be treated with a dignity and respect to which they are entitled. Consistent with the court's standing decorum order, all spectators shall remain quiet, civil and orderly during all times. Spectators shall not engage in conduct that is distracting, disruptive, provocative, disrespectful, uncivil or threatening in any manner.
(00:16:18):
Spectators shall not make audible comments of any kind, shall not shake or nod their heads, and shall not make gestures or other visible reactions during today's hearing. Spectators shall also not wear or display pins, buttons, signs, clothing, photographs, or other items expressing support for or opposing to any person connected with this case or expressing any position concerning the status of this case as a capital offense. The court appreciates the cooperation of all present in maintaining a courtroom environment that is safe, respectful, orderly and faithful to the rights and dignity of every person involved. Turning now to counsel. Before we begin, I wish to acknowledge the professionalism, civility, and competence demonstrated by counsel for both the defense and prosecution during yesterday's proceedings. It is evident to the court that each of you approach this matter with seriousness, preparation, and a deep commitment to your respected responsibilities. The court appreciates the care which you have taken in advocating for your positions and the respectful manner in which you have done so. Thank you. Do either party require the benefit of the record before we proceed?
Counsel (00:17:36):
The state does, Your Honor. Mr. McBride, you'll address the court.
Judge (00:17:39):
All right. And just as a reminder, the microphones at counsel table are turned off to prevent the inadvertent capture of any communication. So if you would like to come forward, thank you. And turning to Mr. McBride.
Mr. McBride (00:17:51):
Thank you, Your Honor. Before this hearing, the defense moved to find Article one, Section 12 of the Utah Constitution Rule 7B and Rule 1102 unconstitutional as it relates to the admissibility of hearsay and reliable hearsay at this hearing. The issue was extensively briefed and argued. The court denied the defense motion to exclude the use of reliable hearsay at the preliminary hearing. That ruling is at docket number 631. In addition, defense counsel filed a standing objection on July 3rd. That's docket 678. The standing objection reasserted the arguments made in defendant's previous motion. Defendant continues to make these same objections throughout the testimony of each witness. I believe both the state and the court and everyone present knows that the defense objects to the use of hearsay or reliable hearsay at this hearing.
(00:18:44):
On the point of preserving the objection, that has been done. Defense counsel has filed their motion. They've filed their standing objection. Throughout the proceeding, they have continued to make objections. At this point, further objection is unnecessary to preserve the record, and causes undue and unnecessary delay. This is a needless delay, and we'd ask the court to acknowledge and the record to reflect the standing objection. And we also ask the court to give an instruction that continuing objections on this ground are unnecessary. Of course, if it relates to some other ground or is some item that's particular to a particular statement, that objection may be appropriate. But at this point, we feel that the repeated objections that have been made and already been ruled upon are unnecessary and cause undue delay.
Judge (00:19:30):
Thank you, Mr. McBride. To defense.
Michael Burt (00:19:39):
Good morning, Your Honor. Michael Burt for Mr. Robinson.
Judge (00:19:41):
Good morning, sir.
Michael Burt (00:19:42):
We have no objection to that procedure as long as the court makes a ruling that the objections are preserved. We do think it would expedite matters if we didn't have to repeat the standing objection. There may be particular objections that are not covered by the standing objection we've made and so we ask permission to be allowed to make those objections as needed.
Judge (00:20:05):
Thank you, Mr. Burt. Thank you to both sides. I appreciate the presentation and your argument about this. The court takes no position in regards to whether the objection is made again and again or not. I leave that to the parties. I recognize the need to expedite this, and if both sides stipulate, I will adopt the request that the standing objection as it relates to 1102 Article one, Section 12 of the Utah Constitution and all relevant authorities that have been cited have been noted and the standing objection by defense is in place. However, if defense feels the need to do that in order to protect the constitutional rights of Mr. Robinson, the court will not prevent that nor stand in its way. This court is acting in the role of a magistrate and will allow the parties to move forward as necessary. But as noted, I will make that note that the standing objection has been noted for all of yesterday's proceedings and will be in place throughout the rest of the preliminary hearing. Anything further, or any need for the record given the court's statement?
Counsel (00:21:26):
Not from the state.
Ms. Nestor (00:21:28):
No, Your Honor.
Judge (00:21:29):
All right. Thank you. All right. The court acknowledges that the exclusionary rule is in effect. At this time any witness who is subject to exclusion should be excused from the courtroom. And again, I will leave it to the parties to monitor the courtroom to ensure that if a witness has come in and they shouldn't be, that they are redirected. I invite Agent Hull to return to the stand to resume direct examination. And Agent Hull, you are still under oath. Mr. Sturgill?
Mr. Sturgill (00:22:02):
Thank you, Judge.
Judge (00:22:03):
And before we begin, is there a way to dim these lights just a tad like we did yesterday? Perfect. Thank you. All right. As of yesterday, there is also a water bottle to your left. And if you wouldn't mind just making sure that microphone is directly in front of you. We want to make sure that the record picks up your testimony today. Mr. Sturgill, your witness.
Mr. Sturgill (00:22:34):
Thank you, Judge. Agent Hull, we're going to return to what has been marked Stake's Exhibit 12.1. There was reference to it yesterday. And I'd like to ask you again, have you reviewed that exhibit?
Agent Hull (00:22:50):
Yes.
Mr. Sturgill (00:22:51):
And if you wouldn't mind, just briefly remind us what that exhibit consists of.
Agent Hull (00:22:58):
The exhibit is a combination [inaudible 00:23:02].
Mr. Sturgill (00:22:59):
Okay.
Speaker 2 (00:23:08):
Your Honor, excuse me. We can't hear the witness.
Judge (00:23:09):
And that's what I hear. So let's go ahead and stop. I'm not hearing it. So I'm going to have you repeat. Let's test it. Go ahead.
Speaker 2 (00:23:17):
Check.
Judge (00:23:17):
All right. I believe that.
Speaker 2 (00:23:18):
Thank you.
Judge (00:23:19):
Mr. Sturgill, if you wouldn't mind restarting so that-
Mr. Sturgill (00:23:21):
I can do that, Judge.
Judge (00:23:22):
Thank you.
Mr. Sturgill (00:23:22):
Maybe bring the mic from the base a little bit closer to you. That'll help. All right. Let's go ahead and go back to what's been marked as State's Exhibit 12.1. I'd asked you a moment ago if you've reviewed that exhibit.
Agent Hull (00:23:37):
Yes, I have.
Mr. Sturgill (00:23:39):
Okay. And would you just remind us what that exhibit consists of?
Agent Hull (00:23:43):
It's a compilation of videos that were part of the overall footage that was obtained from the Utah Valley University as part of the investigation.
Mr. Sturgill (00:23:52):
And does that compilation video, from your point of view, capture Mr. Robinson arriving to and visiting the UVU campus?
Agent Hull (00:24:01):
It does, yes.
Mr. Sturgill (00:24:03):
On September 10th through the 11th, 2025?
Agent Hull (00:24:05):
Correct.
Mr. Sturgill (00:24:06):
Okay. And again, I asked you this question yesterday, but did you prepare that video compilation?
Agent Hull (00:24:11):
I did not.
Mr. Sturgill (00:24:12):
Okay. Do you know who did?
Agent Hull (00:24:14):
The Utah County Attorney's Office.
Mr. Sturgill (00:24:18):
Okay. Does that video, and I'm referring to 12.1, State's Exhibit 12.1, does it include all of the footage collected by the SBI from UVU?
Agent Hull (00:24:30):
It does not, no.
Mr. Sturgill (00:24:32):
Does that video, again, 12.1, include all of the footage you collected from UVU that captures who you believe is Mr. Robinson walking around campus?
Agent Hull (00:24:41):
Not all of the footage, no.
Mr. Sturgill (00:24:45):
You reviewed this compilation with Mr. Olson, correct?
Agent Hull (00:24:48):
Correct.
Mr. Sturgill (00:24:49):
And in its entirety?
Agent Hull (00:24:51):
Yes.
Mr. Sturgill (00:24:53):
And then you collected an 1102 statement from him?
Agent Hull (00:24:58):
I did, yes.
Mr. Sturgill (00:25:00):
And I believe that has actually been admitted into evidence as State's Exhibit 12.3. Did Mr. Olson refer to that exhibit, 12.1 in his statement?
Agent Hull (00:25:13):
He did, yes.
Mr. Sturgill (00:25:13):
Okay. 12.3. I'm going to put on your monitor State's Exhibit 12.3. And I'd ask that if you scroll down towards the very bottom. And I would ask that you read from the statement specifically what Mr. Olson said about State's Exhibit 12.1. And I want to narrow your focus. So I'm going to draw your attention about three quarters down the page. There's a sentence that begins on the left margin, "I have reviewed." Do you see that?
Agent Hull (00:25:45):
I do, yes.
Mr. Sturgill (00:25:46):
Okay. Would you please read that sentence?
Agent Hull (00:25:49):
I have reviewed State's Exhibit 12.1, and the recordings are true and accurate, including timestamps, dates and camera labels. The only changes are some zooms and red highlights, which were not part of the original recording. Would you like me to-
Mr. Sturgill (00:26:06):
I'm sorry?
Agent Hull (00:26:07):
Sorry. I didn't know if you wanted me to continue.
Mr. Sturgill (00:26:08):
No, that's good enough. Have you had a chance... Well, you reviewed the raw footage yourself, is that correct?
Agent Hull (00:26:17):
Correct.
Mr. Sturgill (00:26:18):
And does that comport with your viewpoint of that exhibit?
Agent Hull (00:26:26):
It does, yes.
Mr. Sturgill (00:26:28):
Have you had a chance to refer, or I'm sorry, review what's been marked as State's Exhibit 12.4?
Agent Hull (00:26:35):
Yes.
Mr. Sturgill (00:26:36):
Okay. And when did you review that exhibit?
Agent Hull (00:26:38):
This morning.
Mr. Sturgill (00:26:39):
And who did you review that exhibit with?
Agent Hull (00:26:41):
With Kimberly [inaudible 00:26:42].
Mr. Sturgill (00:26:41):
Okay. Was there any conversation about that exhibit?
Agent Hull (00:26:45):
No, I was just shown the video.
Mr. Sturgill (00:26:47):
Okay. Nobody asked you questions or suggested anything to you?
Agent Hull (00:26:51):
They did not, no.
Mr. Sturgill (00:26:57):
Did you prepare that exhibit?
Agent Hull (00:26:59):
I did not.
Mr. Sturgill (00:27:02):
Do you know who did?
Agent Hull (00:27:04):
The Utah County Attorney's Office.
Mr. Sturgill (00:27:06):
All right. And I'm referring specifically to what's been marked State's Exhibit 12.4. What is depicted in that video?
Agent Hull (00:27:16):
That video is again, a compilation of videos from the overall footage that was obtained from Utah Valley University for September 11th and September 12th.
Mr. Sturgill (00:27:25):
And how does it compare to what's been marked as State's Exhibit 12.1?
Agent Hull (00:27:31):
It appears to be the same footage. However, on this particular version, there were no circles or blurs that had been made to the video.
Mr. Sturgill (00:27:43):
How about zooming in and zooming out?
Agent Hull (00:27:45):
No, there was no zooming or zooming out.
Mr. Sturgill (00:27:47):
Does it appear to be identical to the raw footage that you've seen that portrays this particular part of the UVU surveillance video?
Agent Hull (00:27:56):
It does, yes.
Mr. Sturgill (00:27:59):
Judge, the state would move to admit what's been marked State's Exhibit 12.4.
Ms. Nestor (00:28:09):
Your Honor, we just object to the publication of this for all the reasons we argued yesterday. We think this video is going to play a big role in the trial, and to allow the public to see it now would seriously impact our ability to get a fair trial and we're asking the court not to publish it.
Judge (00:28:29):
Thank you. And to all counsel, as it will apply to all counsel, when you are moving a piece of evidence, there's three parts, whether admissibility into the record to be published in the courtroom, to be published in the courtroom and captured by the media. So Mr. Sturgill, as it's your request, what are you requesting?
Mr. Sturgill (00:28:53):
Judge, first of all, clearly I'd move to admit the exhibit. And Judge, the presumption is that this is a public record and should be published. And so the state's position is that it should be published here in the courtroom, and it should be published in such a way that the media can capture it on video.
Judge (00:29:12):
All right.
David Ryman (00:29:13):
Your Honor, can I be heard on that very briefly?
Judge (00:29:15):
You may. If you would approach the lectern, please, and state your name.
David Ryman (00:29:21):
I'm David Ryman. I represent the news media. I didn't make an appearance because the news media technically aren't parties, but as you know, they do have the right to be heard on issues like this. And I've tried to keep that to a minimum. But since this is the first one coming up today, I though it might be helpful to just address it again. There is a presumption not just that it be published in the courtroom as we talked about yesterday, because the participants or the spectators in the courtroom have a right to know what the court is viewing so that they can understand how you're making your decision. This seems like a very important piece of evidence. It doesn't seem like there is a basis to keep the people who are in the courtroom today from understanding why it's being introduced. It is not like the videos yesterday.
(00:30:06):
And my understanding at least is, you can correct me if I'm wrong, but we didn't object to the videos that weren't published yesterday that were graphic. We didn't object to the non-publication of the autopsy report. The argument here that Ms. Nestor just made is this seems really relevant, and that is precisely why it needs to be public. The last thing I'll address is just EMC. There is a presumption, it's a rule presumption, not a constitutional one that EMC is allowed. And I think that for all of the reasons that we've briefed this for Your Honor several different ways, there needs to be a really good reason why. If it's being published in a public proceeding in the courtroom, it should not also be allowed to be published to the media.
Judge (00:30:57):
Thank you.
David Ryman (00:30:58):
Thank you.
Judge (00:31:00):
Mr. Sturgill, do you wish to respond, or perhaps give a little bit more detail on what this video purports to show?
Mr. Sturgill (00:31:09):
Okay. Well, do you want me to proffer that, Judge, or have the witness?
Judge (00:31:17):
I'll defer to you.
Mr. Sturgill (00:31:18):
Okay. Well, first of all, if I could take one step back. Let me ask you, I may have misheard, but let's just be clear about this video, the compilation video. It includes video surveillance from UVU campus from what dates?
Agent Hull (00:31:35):
September 10th 2025, into the morning of the 11th 2025.
Mr. Sturgill (00:31:40):
And if you wouldn't mind, just describe in a bit more detail what this compilation includes.
Agent Hull (00:31:48):
The compilation shows the movements of the individual believed to be Mr. Robinson on Utah Valley University campus arriving and leaving in a vehicle, arriving and leaving on foot, and then returning and leaving, and then attempting to gain access again in a vehicle. And his movements throughout the day are included in the videos also.
Judge (00:32:14):
Is there any footage of the alleged shooting?
Mr. Sturgill (00:32:26):
There is not, Judge.
Judge (00:32:27):
Okay. I just want to clarify that. Ms. Nestor, given that additional information and anything further from defense?
Ms. Nestor (00:32:35):
Your Honor, Mr. Burt's going to... He's the one who's been litigating all of the First Amendment issues if he could address Mr. Ryman's argument.
Judge (00:32:45):
Yes. Mr. Burt, if you wouldn't mind coming forward.
Michael Burt (00:32:52):
Judge, I wanted to clarify one argument that was made by counsel for the media yesterday, and that was the rules. The rule 4-202.02 does not apply to the situation we're in right now. And that is wrong. The rule says that this rule applies to the judicial branch, and 4-202.02J says the judge may regulate or deny access to exhibits to ensure a fair trial. So I think that rule does apply to our situation, and the Supreme Court in the Allgier, A-L-L-G-I-E-R case, 258 Pacific 3rd 589, applied the rule in the context of an evidentiary exhibit. And I know the court has not mentioned since counsel made that argument this particular rule, but I think it does apply here. And also applicable is the Supreme Court's decision in the Kearns case, which we talked about when we argued the motion for denying access to the cameras. And that case, Kearns-
PART 1 OF 14 ENDS [00:34:04]
Michael Burt (00:34:03):
... cameras. And that case, Kearns versus Tribune Corporation, 685 Pacific 2nd 515 says that the standard the court ought to apply in determining whether an exhibit at a preliminary hearing should be sealed is one of a "realistic likelihood of prejudice". And we rely on the evidentiary showing we've made in connection with our motion to exclude cameras, that there is a realistic likelihood of prejudice in this way. The court knows and has access to the media coverage up to the time when we litigated the motion concerning closing this hearing to the cameras. And the court knows that one feature of the media coverage has been a very pro prosecution bias of every story that has been published on this account. The court also knows from that coverage that that information is being widely disseminated and you have found in connection with the shackling issue that the publicity in this case is likely to reach jurors who will be part of our jury pool.
(00:35:15):
And we've also submitted to the court a public opinion survey, which shows that the prejudicial publicity that the media has already generated in this case has affected the jury pool. And so those are all factors the court can point to and rely on and conclude that publication of this particular exhibit should not be allowed because there is a realistic likelihood of prejudice to Mr. Robinson's right to a fair trial. So under that standard and under the rule, the court ought to deny publication.
Judge (00:35:51):
Thank you, Mr. Burt.
Michael Burt (00:35:52):
Thank you.
Judge (00:35:53):
Any final argument from the parties before the court issues its ruling?
David Ryman (00:35:59):
Your Honor, can I be heard on that briefly?
Judge (00:36:01):
Yes, you may.
David Ryman (00:36:05):
Thank you, Your Honor. David Ryman. I just wanted to clarify. I don't know that Mr. Burt and I necessarily disagree about what he said about the rule. What we were talking about yesterday was something different. That is the portion of the rule that classifies records that are in the court file. It's not the same as what happens in a public hearing. And Mr. Burt referenced the portion of the rule that essentially just tracks the constitutional standard, which of course controls here as to whether in this public proceeding it can be closed in any way, and non-publication of exhibits as a form of closure. So I don't necessarily disagree. I would just underscore, a lot of what Mr. Burt has said has been briefed ad nauseum at this point. Their position that publicity is incompatible with a fair trial.
(00:36:58):
The Allgeyer case he mentioned, I know that case. I litigated that case. It involved a confession that the court found public because you have so many other tools to seat a fair and impartial jury. And we have cited that case repeatedly and so has, Your Honor, I think recognized it in your ruling saying pretrial publicity can coexist with the defendant's right to a fair trial.
(00:37:24):
So the last thing I'll say is just that the constitutional standard that I think we're all agreeing applies here is weighty and difficult to overcome. And it is never satisfied as we've explained by just generalized assertions that there's a lot of publicity out there. It's got to be something really specific and they just haven't made that showing. And I certainly don't think that a video that apparently just shows the defendant walking around the UVU campus qualifies.
Judge (00:37:52):
Thank you. Anything further?
Mr. Sturgill (00:37:59):
Judge, from the state, no, but I think I'd like to be crystal clear. You asked if there's any portion of this video that captures, and I believe you asked of the actual shooting. There's no video of that. There is video, however, and you've heard testimony related to this, where the shooter goes to the top of the Losee building, goes out to the edge of the building, low crawls and then leaves after what we assume is the shot being fired. That's as close as it gets. I don't know if that makes a difference, Judge. I just wanted to make the record clear and I want to be crystal clear with Your Honor.
Judge (00:38:35):
Thank you. I appreciate that clarification as it is guiding for this court and making its ruling. I turn to Utah. Well, let me pull this up. So rule 4-202. 02, I go down to... Well, first, it says, "Statement of the rule. One, presumption of public court records. Court records are public unless otherwise classified by this rule. Two, public court records. Public court records include but are not limited to." And I'm going to go down to 2J, "Exhibits, but the judge may regulate or deny access to ensure the integrity of the exhibit, a fair trial or interests favoring closure." And the court recognizes the importance of the constitutional rights of Mr. Robinson being upheld and protected. At the same time, the court also recognizes the importance of transparency and a proper balance to ensure that the constitutional rights of all parties are upheld. As it relates to this exhibit... I believe it's 12.4.
Mr. Sturgill (00:40:05):
12.4, yes.
Judge (00:40:07):
Based off the representation of what is in that, the court differentiates this exhibit from the exhibits from yesterday, namely Exhibit 7, Exhibit 8, and Exhibit 9, as those are different in nature. And those go to issues relating to Utah Constitution Article 1, Section 28 as it relates to the Declaration of Rights of Crime Victims. And the court also recognizes Utah Rule of Evidence 1102 as that is the foundation that's being laid for the admission of this exhibit. Having taken in consideration all factors, the court rules that Exhibit 12.4 is admitted into evidence and shall be played in the courtroom and may be broadcast by the media. We can proceed.
Mr. Sturgill (00:41:11):
Thank you, Judge. Agent Hall, before we actually watch State's Exhibit 12.4, I have just a few questions. Yesterday you testified at the very beginning of your investigation that you focused on the video that captured the shooter on the top of the Losee building. Is that correct?
Agent Hull (00:41:29):
Yes.
Mr. Sturgill (00:41:30):
I believe you also testified that you began by working your way... And this is what I remember you saying, so correct me if I'm wrong, but you in essence testified that you began with that video and you started working your way backward and forward with the UVU surveillance video in an effort to trace the shooter's steps on campus. Is that right?
Agent Hull (00:41:48):
Correct.
Mr. Sturgill (00:41:49):
Okay. Would you mind explaining just in a little bit more detail what you meant by that, tracking forward and backward on that video?
Agent Hull (00:41:57):
Yeah. We hadn't known when the shooting occurred, and as the officer testified, there was a video of an individual on the roof at the time of the shooting. And so the philosophy that we applied was to take what we knew and then work that forward through the timeline and backwards through the timeline to try and establish where the individual had gone from the rooftop or how the individual had come to be on the rooftop.
Mr. Sturgill (00:42:31):
And did that, for lack of a better term, bear fruit?
Agent Hull (00:42:35):
It did, yes.
Mr. Sturgill (00:42:35):
Did you actually see, at least in part, where he came from and where that shooter went?
Agent Hull (00:42:41):
Yes. More so where he came from. It was very limited after the fact.
Mr. Sturgill (00:42:45):
Okay. You testified yesterday that in reference, I believe, to what's marked State's Exhibit 21, that you believe Mr. Robinson visited campus at least four times on the 10th and the 11th.
Agent Hull (00:43:00):
Correct.
Mr. Sturgill (00:43:00):
And I think you reaffirmed that today. Did you do the same, attempt that is, to track Mr. Robinson through UVU surveillance video during each of those four visits?
Agent Hull (00:43:11):
Yes.
Mr. Sturgill (00:43:12):
Or those other three visits, I guess?
Agent Hull (00:43:14):
Yes. On each occasion we attempted to follow the movements of the individual throughout campus.
Mr. Sturgill (00:43:19):
And did you, in fact, see Mr. Robinson on campus in surveillance video that is not included in State's Exhibit 12.4?
Agent Hull (00:43:28):
Yes. There is additional footage of him on campus, yes.
Mr. Sturgill (00:43:31):
Okay. I'm going to have, displayed on your monitor, what you're going to see is a paused or a still image. And I'm going to ask if you recognize what... You see that now, Agent Hall?
Agent Hull (00:43:51):
I do, yes.
Mr. Sturgill (00:43:52):
Okay. Do you recognize what's displayed on your monitor?
Agent Hull (00:43:56):
Yes. It's footage from the university that was provided to us, particularly of the parking structure.
Mr. Sturgill (00:44:02):
Okay. Does it appear to be State's Exhibit 12.4?
Agent Hull (00:44:05):
It does, yes.
Mr. Sturgill (00:44:06):
I'm going to go ahead and I'm going to have this video run. And then if you don't mind, as it's running, I'm probably going to be asking you some questions. This video has no audio, is that right?
Agent Hull (00:44:20):
No, there's no audio on the cameras.
Mr. Sturgill (00:44:22):
Okay. Let's go ahead and start the video.
David Ryman (00:44:25):
Your Honor, it's just not up on the screen yet. Maybe you're kind of-
Judge (00:44:28):
Let's go ahead and put it on all screens.
Speaker 3 (00:44:30):
[inaudible 00:44:31].
Judge (00:44:32):
No, I appreciate it. So it is admitted and may be published to the screens. And just want to make sure it's on your screen, Agent. All right. All right. Mr. Sturgill, you may proceed.
Mr. Sturgill (00:44:50):
Appreciate that, Judge. Thank you. Go ahead. Okay. What are we seeing here, Agent Hall?
Agent Hull (00:44:55):
That's the vehicle that is believed to belong to Mr. Robinson arriving in the parking garage on campus.
Mr. Sturgill (00:45:02):
Well, what time of the day?
Agent Hull (00:45:04):
It's approximately 8:30 in the morning on September 10th, 2025.
Mr. Sturgill (00:45:08):
And what leads you to believe that this particular vehicle belongs to Mr. Robinson?
Agent Hull (00:45:14):
Information that was provided regards to driver's license and Department of Motor Vehicle records, the vehicle fits the description of a vehicle owned by Mr. Robinson.
Mr. Sturgill (00:45:25):
Is there anything unique about that vehicle that stands out to you?
Agent Hull (00:45:29):
The shape of the vehicle is very distinct, but predominantly the wheels were very distinctive on this version of the vehicle.
Mr. Sturgill (00:45:37):
Now, what do we see?
Agent Hull (00:45:39):
The driver of the vehicle exits the vehicle and then walks on foot to exit the parking garage. It's the individual in the red T-shirt and the shorts and the shoes.
Mr. Sturgill (00:45:54):
And do you believe you recognize who that person is?
Agent Hull (00:45:56):
Yes.
Mr. Sturgill (00:45:57):
Who is that?
Agent Hull (00:45:58):
I believe that's Tyler Robinson.
Mr. Sturgill (00:46:00):
All right. And where does he go from there?
Agent Hull (00:46:03):
He heads out of the parking garage on foot into the campus and actually goes to the quad area of the campus. At that time, he makes contact with some representatives from TP USA.
Mr. Sturgill (00:46:17):
By quad area...
Agent Hull (00:46:19):
Sorry, the amphitheater is what I've previously referred it to.
Mr. Sturgill (00:46:23):
All right. So he goes up onto campus, visits the amphitheater area, the courtyard or quad.
Agent Hull (00:46:28):
Correct.
Mr. Sturgill (00:46:29):
And then what do we see here now?
Agent Hull (00:46:31):
He returns on foot back to the same vehicle.
Mr. Sturgill (00:46:33):
And what time is he returning back to the vehicle?
Agent Hull (00:46:36):
It's about 9:25 AM.
Mr. Sturgill (00:46:38):
And where is this parking structure located on campus?
Agent Hull (00:47:06):
It's just off of Campus Drive. It's a short walk from the amphitheater.
Mr. Sturgill (00:47:13):
What do we see now?
Agent Hull (00:47:15):
That's the vehicle exiting with Mr. Robinson driving the vehicle.
Mr. Sturgill (00:47:32):
Now, what do we see?
Agent Hull (00:47:34):
This is Mr. Robinson returning to the campus on foot from the neighborhood to the Northeast. You can see he's wearing the same clothing as in the previous video and he's carrying a blue backpack.
Mr. Sturgill (00:47:46):
Describe the clothing.
Agent Hull (00:47:48):
It's a maroon color T-shirt with gray or olive colored shorts and then converse shoes.
Mr. Sturgill (00:48:00):
And what time did he return to campus?
Agent Hull (00:48:03):
Just after 10:00 AM.
Mr. Sturgill (00:48:06):
And does he leave the parking structure eventually?
Agent Hull (00:48:09):
He does, yes.
Mr. Sturgill (00:48:10):
Okay. And during this visit, do you know where he goes after he leaves the parking structure?
Agent Hull (00:48:15):
Yes. We were able to track his movements on campus. He went to Chick-fil-A in the Sorenson building and purchased some food, sat and ate the food. Then... I'm sorry.
Mr. Sturgill (00:48:28):
Where did he purchase the food from?
Agent Hull (00:48:29):
Chick-fil-A in the Sorenson Center.
Mr. Sturgill (00:48:31):
And where is that in relation to the amphitheater or the courtyard?
Agent Hull (00:48:38):
It's kind of on the northeast side of the amphitheater. It would be on the upper back edge of the amphitheater, furthest away from where the tent was that Mr. Kirk was in.
Mr. Sturgill (00:48:49):
And from there, where does he go?
Agent Hull (00:48:51):
From there, he moves across campus, out across Campus Drive into a wooded area on what would be kind of the northeast side of Campus Drive. Then returns back onto campus. We noticed at this point that he's no longer carrying the backpack that he was originally wearing. He moves through the Gunther building and the computer science building. And then-
Mr. Sturgill (00:49:16):
And then goes where?
Agent Hull (00:49:19):
I'm sorry?
Mr. Sturgill (00:49:19):
And then goes where?
Agent Hull (00:49:21):
Then goes across to the railing that gives access to the roof of the Losee building.
Mr. Sturgill (00:49:28):
From there?
Agent Hull (00:49:30):
From there he comes back down the stairs and walks off campus from that point.
Mr. Sturgill (00:49:36):
And about what time was that, that he left campus that second time? Do you know?
Agent Hull (00:49:42):
I believe it was approximately 11:00 AM or just after, if I recall. I could verify from my notes, if you need an exact time.
Mr. Sturgill (00:49:50):
Yeah, if you don't mind. That'll help you remember, refer to it. Don't read it out loud. Just let me know when you've had a chance to look at that, would you? Were you able to refresh your memory as far as the time?
Agent Hull (00:50:23):
I was, yes.
Mr. Sturgill (00:50:25):
And what time was it?
Agent Hull (00:50:26):
It was just prior to 11:00 AM when he walked off campus.
Mr. Sturgill (00:50:28):
Okay. And before we go any further, the parking structure that he left initially, where is that parking structure in relation to the LDS Institute building?
Agent Hull (00:50:38):
I'm sorry, in relation to?
Mr. Sturgill (00:50:39):
The LDS Institute building on campus.
Agent Hull (00:50:47):
I think it would be just to the north of the LDS Institute building, if I recall.
Mr. Sturgill (00:50:51):
Do you recall whether it was adjacent to the LDS Institute?
Agent Hull (00:50:54):
Yes, it is.
Mr. Sturgill (00:50:54):
Okay. All right. What do we see displayed here now? Go ahead.
Agent Hull (00:51:02):
This is a video of Mr. Robinson returning back to campus the same way that he did previously on foot.
Mr. Sturgill (00:51:10):
And this takes just a moment. And why... Well, let me ask you this. You believe this is Mr. Robinson returning to campus?
Agent Hull (00:51:21):
I do, yes.
Mr. Sturgill (00:51:23):
Okay. And why do you believe it's Mr. Robinson?
Agent Hull (00:51:25):
The shoes are the same and the images that we have from my viewing and seeing Mr. Robinson on the video, it's the same person.
Mr. Sturgill (00:51:40):
He's noticeably wearing different clothing.
Agent Hull (00:51:43):
He is wearing different clothing and he also is walking with a gait or a limp in this video.
Mr. Sturgill (00:51:49):
With a gait or what?
Agent Hull (00:51:50):
A limp.
Mr. Sturgill (00:51:51):
Okay. Now, what do we see?
Agent Hull (00:52:00):
This is Mr. Robinson coming up the stairs of the parking structure. Again, he seems to be having issues walking.
Mr. Sturgill (00:52:11):
And again, were you able to track Mr. Robinson when he leaves this parking structure?
Agent Hull (00:52:34):
Yes, we were able to.
Mr. Sturgill (00:52:35):
Okay. So when he leaves the parking structure, where does he go?
Agent Hull (00:52:40):
He comes up around Campus Drive. As you can see on the video here, there's a cut through there, north of the Losee building, and that's Mr. Robinson coming up the sidewalk. He has the noticeable gait or limp in his walk. And then he moves south across the front of the Losee building.
Mr. Sturgill (00:53:00):
On the sidewalk?
Agent Hull (00:53:01):
Yes, correct. Okay. He would be the rear of the two individuals in this particular video.
Mr. Sturgill (00:53:10):
All right. So right now, if you were to break this picture into quadrants, where would he be?
Agent Hull (00:53:16):
He'd be in the top left quadrant walking to the left of the image.
Mr. Sturgill (00:53:20):
Now what do we see?
Agent Hull (00:53:23):
This is an image looking across the parking lot to the Losee building and Mr. Robinson is appearing on the exterior staircase, which gives access to the Losee building roof and the area where the railing was.
Mr. Sturgill (00:53:36):
And again, let's break that image into quadrants. Where would he be located if you broke it into quadrants?
Agent Hull (00:53:42):
It's in the top right and the individual can be seen moving under the notations that are on the video.
Mr. Sturgill (00:53:48):
Okay. And what time is this?
Agent Hull (00:53:58):
It's just afternoon, about 12:15.
Mr. Sturgill (00:54:01):
On what day?
Agent Hull (00:54:05):
September 10th, 2025.
Mr. Sturgill (00:54:06):
Okay. What just happened or what did we just see happen?
Agent Hull (00:54:10):
The individual actually kind of rolls over the railing onto the roof of the Losee building.
Mr. Sturgill (00:54:16):
All right. Go ahead, sorry.
Agent Hull (00:54:20):
And again, in the top left corner, the individual is now seen running across the rooftop of the Losee building to what would be the southwest corner of the building, crouching down and then crawling to the corner of the building.
Mr. Sturgill (00:54:39):
And this is at what time?
Agent Hull (00:54:42):
Around 12:23. I think the timestamp on the video is 12:22.
Mr. Sturgill (00:54:47):
On the 10th?
Agent Hull (00:54:51):
On September 10th, yes, 2025.
Mr. Sturgill (00:54:53):
We're clear, this is the roof of the Losee building?
Agent Hull (00:54:55):
Correct.
Mr. Sturgill (00:54:58):
Can you still see that individual?
Agent Hull (00:55:01):
Yes, you can, laying prone.
Mr. Sturgill (00:55:17):
Do you believe this to be Mr. Robinson?
Agent Hull (00:55:20):
I'm sorry?
Mr. Sturgill (00:55:20):
You believe this to be Mr. Robinson?
Agent Hull (00:55:21):
I do, yes.
Mr. Sturgill (00:55:22):
And how long is he out there on the edge of the building?
Agent Hull (00:55:27):
Just until the reported shot was fired at 12:23:28. The individual then stands up and then moves across the building to the north.
Mr. Sturgill (00:55:37):
Is that what we're seeing happening right now?
Agent Hull (00:55:39):
It is, yes. They moved behind the atrium area on the rooftop to the northeast corner where the white triangle is.
Mr. Sturgill (00:55:52):
Do you see Mr. Robinson now?
Agent Hull (00:55:54):
I do, yes. He's just arriving at the corner of the building, almost the top center of the image.
Mr. Sturgill (00:56:07):
What are we seeing now?
Agent Hull (00:56:08):
Mr. Robinson lowering and jumping off of the roof of the Losee building onto the grass area and then moving away towards Campus Drive. And he appears to be carrying some kind of an object in his hand at this time.
Mr. Sturgill (00:56:33):
So he's approaching...
Agent Hull (00:56:35):
Campus Drive.
Mr. Sturgill (00:56:37):
And again, broken into quadrants, where is he currently?
Agent Hull (00:56:40):
In the top right quadrant.
Mr. Sturgill (00:56:45):
And the time?
Agent Hull (00:56:47):
It's 12:24:42 on the timestamp.
Mr. Sturgill (00:56:50):
What do we see now?
Agent Hull (00:56:51):
He then crosses Campus Drive and drops down into the wooded area on the far side of Campus Drive.
Mr. Sturgill (00:57:01):
And that is located in what part of the video? What quadrant?
Agent Hull (00:57:06):
It would've been just off center on the top left side.
Mr. Sturgill (00:57:09):
Okay. What do we see now?
Agent Hull (00:57:15):
This is the intersection of Campus Drive and 800 South. There's a vehicle attempting to turn right onto Campus Drive. That's the vehicle that's driven by Mr. Robinson.
Mr. Sturgill (00:57:26):
And on the screen, where is that vehicle that you're referring to located, if you broke it into quadrants?
Agent Hull (00:57:33):
It's on the left side on the upper side, the upper quadrant.
Mr. Sturgill (00:57:41):
Now, what do we see?
Agent Hull (00:57:42):
That vehicle's now pulling away and heading east on 800 South.
Mr. Sturgill (00:57:49):
And why do you believe that that vehicle was Mr. Robinson's vehicle?
Agent Hull (00:57:54):
When that vehicle was stopped, it actually made contact with an officer who was doing security detail.
Mr. Sturgill (00:57:59):
And do you know who that officer is?
Agent Hull (00:58:01):
Officer Goforth.
Mr. Sturgill (00:58:02):
Okay. And do you know which department he works for?
Agent Hull (00:58:04):
Spanish Fork Police.
Mr. Sturgill (00:58:05):
And did you have a conversation with Mr. Goforth regarding this interaction at that intersection?
Agent Hull (00:58:12):
I did, yes.
Mr. Sturgill (00:58:13):
Okay. And what time was that interaction? I'm sorry, did I ask you that?
Agent Hull (00:58:16):
It was approximately 12:30 AM.
Mr. Sturgill (00:58:21):
Okay. On the 11th?
Agent Hull (00:58:22):
On September 11th, 2025.
Mr. Sturgill (00:58:24):
So you talked to Officer Goforth about that contact on the corner, I guess, during the early morning hours of the 11th?
Agent Hull (00:58:32):
Correct.
Mr. Sturgill (00:58:33):
And what did Officer Goforth tell you about that interaction?
Agent Hull (00:58:38):
It was an interaction that, I guess cop intuition, but there was something about the interaction that made him make a note of the license plate of the vehicle. And then subsequently, when information was available that that vehicle or a vehicle matching the description of that was involved in the incident, he ran the information that he had obtained from the stop and was able to identify that it was registered to Mr. Robinson and he had in fact had contact with Mr. Robinson on the morning of September 11th, 2025.
Mr. Sturgill (00:59:13):
The information that he ran, when you say that he ran information-
Agent Hull (00:59:18):
Yes, he ran a partial plate.
Mr. Sturgill (00:59:20):
Okay. A license plate?
Agent Hull (00:59:21):
Correct.
Mr. Sturgill (00:59:22):
And based on that partial license plate, he was able to identify the owner of that vehicle?
Agent Hull (00:59:27):
Yes.
Mr. Sturgill (00:59:28):
And did he tell you who the owner of that vehicle was?
Agent Hull (00:59:30):
He did, yes.
Mr. Sturgill (00:59:31):
Okay. And who did he tell you that it belonged to?
Agent Hull (00:59:33):
That there were two registered owners of the vehicle, Tyler Robinson and an Amber Robinson.
Mr. Sturgill (00:59:38):
Did he say anything about the person that he actually interacted with?
Agent Hull (00:59:41):
Yes, it was a male that he believed to be Tyler Robinson.
Mr. Sturgill (00:59:57):
Okay. Let's return again to what's been marked State's Exhibit 12.1. Again, you've reviewed that video?
Agent Hull (01:00:06):
Yes.
Mr. Sturgill (01:00:07):
And the difference between 12.1 or what's been marked as State's Exhibit 12.1 and 12.4, if I understand you correctly, are these enhancements that we've been talking about?
Agent Hull (01:00:16):
Yes.
Mr. Sturgill (01:00:17):
And specifically, be specific about the enhancements and let's go one at a time.
Agent Hull (01:00:24):
Okay.
Mr. Sturgill (01:00:26):
I think there's a reference to either red circles or red highlights.
Agent Hull (01:00:29):
Correct.
Mr. Sturgill (01:00:29):
That's how Mr. Olson described it, red highlights.
Agent Hull (01:00:32):
Yes.
Mr. Sturgill (01:00:36):
What is he referencing by the red highlights or what do you believe he's referencing?
Agent Hull (01:00:40):
I believe he's referring to red ovals or circles that were placed over the image to identify specific individuals of note.
Mr. Sturgill (01:00:49):
And these red circles, are they permanent red circles? Are they temporary? Anything different?
Agent Hull (01:00:59):
I would assume they are temporary. I'm not very technological, but I believe they would be overlaid over the image.
Mr. Sturgill (01:01:06):
This is a bad question. What I mean by that is, do they appear and disappear quickly or do they linger or last for a period of time?
Agent Hull (01:01:14):
They're there for a notable period, but I believe they come off the video.
Mr. Sturgill (01:01:19):
All right. What do the circles do?
Agent Hull (01:01:29):
They identify an area or a person of interest within the video.
Mr. Sturgill (01:01:34):
And other than do that, do the circles or the highlights, do they do anything with regards to the video itself as far as its accuracy?
Agent Hull (01:01:44):
Not to my knowledge, no.
Mr. Sturgill (01:01:45):
Okay. I think the next enhancement that has been mentioned that we've talked about is there's some blurring.
Agent Hull (01:01:53):
Yes.
Mr. Sturgill (01:01:56):
Tell us what that is. What blurring do you see what's been marked as State's Exhibit 12.1 that you now don't see in 12.4?
Agent Hull (01:02:03):
If I recall, there were some individuals in the parking garage footage and their faces were blurred.
Mr. Sturgill (01:02:13):
Anything other than faces being blurred?
Agent Hull (01:02:16):
Not that I recall, no.
Mr. Sturgill (01:02:19):
And how often do you see the blurring throughout the video?
Agent Hull (01:02:22):
I believe it's just in the original sequence in the parking garage.
Mr. Sturgill (01:02:34):
Well, the blurring, other than obviously blur out part of the image, does it change or impact the accuracy in your mind of that part of the compilation video?
Agent Hull (01:02:47):
Not to my knowledge, no.
Mr. Sturgill (01:02:49):
And then the last thing is, I believe there's some zooming in and zooming out that's in 12.1 that has been removed, and 12.4.
Agent Hull (01:02:55):
Yes.
Mr. Sturgill (01:02:57):
What can you tell us about the zooming in and the zooming out?
Agent Hull (01:03:00):
Predominantly, it's in the area that was referred to as viewing the Losee building rooftop. I believe it focuses on the area where Mr. Robinson comes up the stairs and onto the rooftop. Those portions of that particular footage were zoomed in for clarity.
Mr. Sturgill (01:03:19):
Okay. Other than zooming in and zooming out, at least that enhancement to the video, does it change the content of the video?
Agent Hull (01:03:28):
No.
Mr. Sturgill (01:03:29):
... the accuracy of the video, in your mind?
Agent Hull (01:03:31):
No.
Mr. Sturgill (01:03:48):
Okay. Are the enhancements in State's Exhibit... well, it's been marked as State's Exhibit 12.1, are they helpful in any way? Or what do they add or take away from that video?
Agent Hull (01:04:01):
I think for people who are not familiar with the area and what's trying to be shown, they are now an opportunity for people to look at an individual who we believe to be Tyler Robinson and also specific movements with more clarity than the original focal point gives.
Mr. Sturgill (01:04:20):
So let's talk about the zooming in and the zooming out. It sounds like it's specific to the Losee rooftop, if I understand you correctly.
Agent Hull (01:04:27):
Yes.
Mr. Sturgill (01:04:28):
Okay. And I think we've all watched that exhibit before.
Agent Hull (01:04:31):
Correct.
Mr. Sturgill (01:04:32):
And although you can see Mr. Robinson and his movements, is it fair to say that it's difficult to really see what's going on?
Agent Hull (01:04:42):
That would be fair, yes.
Mr. Sturgill (01:04:43):
Okay. And the version that's in 12.1, does it facilitate, at least that part of the video, seeing Mr. Robinson and tracking, I guess, his steps?
Agent Hull (01:04:58):
I believe so, yes.
Mr. Sturgill (01:05:01):
Okay. Judge, at this point, I think in combination with yesterday, the foundation that was laid yesterday, including the written statement from Mr. Olson, which has been admitted into evidence and is... Well, it's already been admitted into evidence. We believe there's enough foundation that, at this point, we'd also ask the court to admit what's been marked State's Exhibit 12.1. We think it would be beneficial for Your Honor to view it.
Judge (01:05:32):
Ms. Nester.
Ms. Nestor (01:05:35):
Thank you, Your Honor. We renew our authenticity objection and we also object for admission purposes. And then we also object to the publication for the same reasons, the fair trial issues that we raised with the unaltered version that was just submitted.
Mr. Sturgill (01:05:53):
And Judge, sorry, I neglected to mention the other two. Again, Judge, we believe that the presumption is that this is a public record, that it should be not only admitted, but it should be published here in the courtroom and it should be published in such a way that the media can have access to it.
Judge (01:06:10):
All right. I do have a question, and just directing your attention to the Utah Rule of Evidence 403, to the last phrase, the last four words in that. Do you wish to address that?
Mr. Sturgill (01:06:26):
Judge, I'm going to have to look at 403 specifically for those last four words, unless you want to share with me.
Judge (01:06:33):
I can read that.
Mr. Sturgill (01:06:33):
Okay. Go ahead and read that.
Judge (01:06:35):
"Needlessly presenting cumulative evidence." Let me just read the whole rule for completeness. "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following; unfair prejudice confusing the issue, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." I'm not looking at anything else other than that last portion. I recognize there is no jury. I am the magistrate. I am the fact finder, but just addressing that last point of rule 403.
Mr. Sturgill (01:07:12):
Right. Judge, I don't believe that the evidence is cumulative. I think that each of the two videos, although they portray basically the same footage, there's characteristics of the one that has been enhanced that I think makes it easier for Your Honor to truly see what's going on and for the public to see what's going on. I mean, we've displayed 12.4 on the video. And unless you have very, very, very good vision or you've zoomed in on that monitor, you really can't see what Agent Hall has just described. The character of 12.1, is it simply enhances that, at least important parts of that exhibit and it just makes it easier to see, not only by Your Honor, but also by the public. And-
PART 2 OF 14 ENDS [01:08:04]
Mr. Sturgill (01:08:03):
We, not only by Your Honor, but also by the public. And specifically as it relates to the zooming in and the zooming out.
Judge (01:08:09):
Okay. Anything further from the parties as it relates to 12.1? All right, well I will admit 12.1 into evidence, but as it relates to playing it in the courtroom or on the television, for the media, I find that it is... Well, as the fact finder, I will look at the evidence and weigh it as a magistrate is required to do, but I do not find it is... I don't find it's necessary to replay this video given the representation that's the exact same video, the difference being enhancements made. If it was different in any way or if it added to or subtracted from, that would be one factor. But because it's simply the same video simply zooming in with circles or notations, the court does not find that the interest of justice requires it being played again. But it is received into evidence and will be reviewed by myself in determining a probable cause determination.
Mr. Sturgill (01:09:27):
And I appreciate that, Judge. And just so we're clear, State's Exhibit 12.1 has been admitted.
Judge (01:09:32):
It is received into evidence, yes.
Mr. Sturgill (01:09:34):
And your intent is to review it in its entirety, but not here in the courtroom?
Judge (01:09:39):
Yes.
Mr. Sturgill (01:09:40):
Can I make one suggestion, judge, or maybe one run request? I believe the most important part, the most helpful part of this video is the zooming in and the zooming out. And that is a portion that, if you want, we could isolate that and only play that portion of the video if you'd be willing to publish that portion of the video. And that's really the thrust of why we are trying to introduce that exhibit, because we believe that it's helpful to see it up close. And unfortunately, because of the way it's formatted and the way it's been recorded, there's no way any of us can zoom in and zoom out on this video to get a better look at what's going on. And that's the reason why we did what we did, but we had to memorialize it and save it and then present it in that way rather than just present it in its raw form and then have the ability to zoom in and out if that helps Your Honor understand why we're doing what we're doing.
Judge (01:10:37):
All right. Ms. Nestor, to the second request of not playing the whole video in its entirety, but simply the portion with the zooming in. How long is that, Mr. Sturgill?
Mr. Sturgill (01:10:49):
I think it's a couple of minutes.
Judge (01:10:51):
All right. Ms. Nestor?
Ms. Nestor (01:10:54):
We object to the prejudice of that, Your Honor, and ask the court to stand by your previous ruling on that.
Judge (01:11:00):
All right. Thank you. I appreciate both parties. What I will do is review this video in court and it will be displayed to the monitor's counsel table and to the court's monitor on any portion that you wish to play for me to look at so all parties can see clearly that the court is reviewing it in court, but I do not find that it is necessary for its publication, because this is the exact same video. I recognize it's zooming, but in balancing constitutional rights there is nothing on this video from what's been represented that the public hasn't already seen. It's simply zooming in and I don't find that that is necessary. So in balancing the constitutional rights of all parties, I'll view it on the monitor. Counsel's free to view it with me as I'm looking at it, but it will not be broadcast in the courtroom or by the video camera.
Mr. Sturgill (01:12:11):
I appreciate that, Judge. I respect that. I think there's a natural break where we can start, and what I'm going to ask is just we simply play the most ... You will have this entire exhibit in evidence though. Is that right?
Judge (01:12:29):
Thank you. Yes, I will. All right, whenever you're ready. Counsel, as it relates to your monitors, just as a caution, if you don't want it to be wished to be picked up, and I'm not saying it will, I know there are camera operators being diligent in ensuring they're complying by the rules, but in abundance of caution, this is just your moment to take care of your screens if you feel the need to do so.
Mr. Sturgill (01:12:56):
If I could just have one moment? Hold on, Kimberly. I'm not sure where the power button is on this. There we go.
Judge (01:13:10):
All right. Counsel for defense, are we prepared? And for the state?
Speaker 4 (01:13:15):
Yes, Judge.
Judge (01:13:16):
All right. Thank you. Having heard from both counsel, I'll go ahead and review it on my screens. It is not being displayed in the monitor in the courtroom, and you may present the 12.1, the portion you wish to for me to view. And just for the benefit of the record, do you want to put on the record the timestamp of what you're playing at what point you're starting and stopping as we go or when we finish is fine. I just want the record to be complete.
Mr. Sturgill (01:14:10):
There's a difficulty in doing that. It's because we've zoomed in. It's removed the timestamp on it.
Judge (01:14:17):
Well, you can just give me the-
Mr. Sturgill (01:14:18):
The count?
Judge (01:14:20):
The count on the bottom. There's a timer at the bottom of the total length of the video, so that's fine. I'm just trying to create a record of what exactly I'm looking at.
Speaker 4 (01:14:56):
Whenever we pause it on the court system it...
Judge (01:14:58):
Oh, I see. No, it's limitations of technology sometimes. Thank you for letting me know.
Mr. Sturgill (01:15:04):
So count on the video is just before six minute mark, judge.
Judge (01:15:23):
All right.
Mr. Sturgill (01:15:23):
And just so the record's clear, this is State's Exhibit 12.1.
Judge (01:15:29):
Thank you. I have it on my screen. So it looks like it's been paused at six minutes and nine seconds.
Mr. Sturgill (01:15:38):
Agent Hall, can you see it?
Agent Hull (01:15:40):
Yes.
Mr. Sturgill (01:15:41):
Okay. Well, let's just... I'm good with playing it. Judge, it's fine. We'll play it. Go ahead, Kimberly.
Agent Hull (01:15:52):
It's playing.
Judge (01:18:00):
All right. And it's been paused it looks like at 6 minutes and 23 seconds.
Mr. Sturgill (01:18:05):
I'm sorry. Judge, at 8:23 we stopped the video.
Judge (01:18:09):
Oh, 8:23. Okay.
Mr. Sturgill (01:18:11):
8:23. So that's the count on the video itself.
Judge (01:18:12):
Thank you. All right. Thank you, Mr. Sturgill.
Mr. Sturgill (01:18:19):
Agent Holt, you're able to watch that zoomed in version, is that right?
Judge (01:18:22):
Yes, sir.
Mr. Sturgill (01:18:24):
Okay. And was there anything that stood out watching that zoomed version?
Agent Hull (01:18:34):
For me on the zoomed version, it's apparent that Mr. Robinson, the individual jumping off the roof, is carrying an item.
Mr. Sturgill (01:18:42):
Okay. And you can see clear the clothing that he's wearing?
Ms. Nestor (01:18:49):
Object to leading.
Mr. Sturgill (01:18:51):
Strike that.
Judge (01:18:52):
Mr. Sturgill, do you want to respond to the objection?
Mr. Sturgill (01:18:54):
Judge, it is leading.
Judge (01:18:55):
I'll go ahead and sustain the objection and that you may move forward.
Mr. Sturgill (01:19:00):
Is it easier to see... Well, strike that, Judge. I'll let the video speak for itself. Judge, I have nothing further with Agent Holt.
Judge (01:19:12):
All right. Ms. Nestor?
Ms. Nestor (01:19:15):
Just one moment, your Honor, if I may have the court's indulgence. Thank you, Your Honor. Do you want to take your-
Judge (01:19:48):
And I was just going to suggest that. It seems like right now is a good time to take our morning break. It's 10:15. Let's come back at 10:30 and we'll resume with cross-examination of Agent Holt. The court is now in recess. We'll go ahead and pick up where we left off. I note that the parties for each side are present in the courtroom and we are picking up with cross-examination of Agent Hall. Ms. Nestor, your witness.
Ms. Nestor (01:39:43):
May it please the court, thank you. Good afternoon, Agent Hall.
Judge (01:39:46):
Good morning.
Ms. Nestor (01:39:47):
You and I have met before, but just to remind you, my name's Kathy Nestor. I'm one of the attorneys representing Mr. Robinson. So when did you leave the SBI?
Agent Hull (01:40:03):
The State Bureau of Investigation?
Ms. Nestor (01:40:04):
Yes.
Agent Hull (01:40:05):
March of this year.
Ms. Nestor (01:40:06):
March of this year?
Agent Hull (01:40:08):
Yes.
Ms. Nestor (01:40:08):
So you were involved in this investigation from September to March, basically?
Agent Hull (01:40:13):
Yes.
Ms. Nestor (01:40:14):
And your new position at post, what is your new position?
Agent Hull (01:40:18):
I'm an investigative sergeant.
Ms. Nestor (01:40:20):
So you investigate potential wrongdoing of police officers?
Agent Hull (01:40:24):
Correct.
Ms. Nestor (01:40:24):
Okay. So when you were first brought into this case in September, is it my understanding from your testimony that you were not engaged in any way with this event prior to getting a call after the shooting? Is that correct?
Agent Hull (01:40:42):
Correct.
Ms. Nestor (01:40:43):
Does the SBI on occasion assist other agencies with preparing for big events like this or not? Is that's not typically something you do?
Agent Hull (01:40:54):
Not something that I've ever been involved with, no.
Ms. Nestor (01:40:55):
Okay. And what time did you arrive on campus that day?
Agent Hull (01:41:03):
I believe it was shortly after 1:30.
Ms. Nestor (01:41:06):
So approximately an hour after Mr. Kirk had already been removed from the-
Agent Hull (01:41:13):
Approximately, yes.
Ms. Nestor (01:41:14):
Okay. And were you involved in putting up any drones into the air? Were you part of that or were you not involved in that?
Agent Hull (01:41:28):
I was not, no.
Ms. Nestor (01:41:30):
So how quickly after you arrived on scene did you become aware that you were actually going to be in charge of the scene?
Agent Hull (01:41:38):
I believe it was approximately an hour after, so what would've been approximately 2:30.
Ms. Nestor (01:41:43):
So for the first two hours you were not in charge?
Agent Hull (01:41:47):
For the first two hours I wasn't ... I didn't arrive till 1:30, so no.
Ms. Nestor (01:41:52):
Okay. And once it came from on high that you were basically going to be in charge of the scene, what was your first priority? What were you focused on?
PART 3 OF 14 ENDS [01:42:04]
Ms. Nestor (01:42:03):
And what was your first priority? What were you focused on?
Agent Hull (01:42:04):
We were focused on, through our major crimes team and our lieutenant, putting together an investigative team and developing initial assignments and a plan as to what we were going to do moving forward.
Ms. Nestor (01:42:17):
And part of that is protecting any potential forensic evidence that may be found on the scene. That's clearly important, right?
Agent Hull (01:42:24):
Correct.
Ms. Nestor (01:42:25):
Preserving the scene, right?
Agent Hull (01:42:27):
Correct.
Ms. Nestor (01:42:28):
But it sounds like that's not really your area, that was more maybe Agent Falmina's area?
Agent Hull (01:42:35):
Agent Falmina was assigned to process and document the crime scenes. It was my understanding that the known scenes at that time, amid the chaos, had been contained and had been secured by the on-campus officers who were already on scene.
Ms. Nestor (01:42:52):
And what's your understanding of what the known scenes were? In other words, the area where there might potentially be evidence that you needed to process?
Agent Hull (01:43:00):
I know that the amphitheater area was cordoned off and managed as best it could with the number of people that were there. I was also made aware that there was a rooftop area that had been secured, and also an area off of the side of that building that had been secured by an officer.
Ms. Nestor (01:43:16):
And that building was the Losee building?
Agent Hull (01:43:18):
Correct.
Ms. Nestor (01:43:19):
Wasn't there also a bullet found on another building?
Agent Hull (01:43:23):
I believe an unfired bullet had been found on another building at some point during my time there on September 10th, yes.
Ms. Nestor (01:43:30):
Which building was that, sir?
Agent Hull (01:43:32):
I don't recall.
Ms. Nestor (01:43:33):
Was that considered a scene, though it was worth preserving?
Agent Hull (01:43:37):
It was not. My recollection is that was accounted for as an ejected cartridge from an officer who had cycled his rifle.
Ms. Nestor (01:43:47):
Okay. I thought you said it was an unfired bullet. Now you're saying it was a cartridge?
Agent Hull (01:43:52):
That's correct. When a weapon is cleared, an officer would make his rifle ready, which would chamber a round.
Ms. Nestor (01:43:59):
Oh, I got you.
Agent Hull (01:44:00):
My understanding was that that's how that was accounted for.
Ms. Nestor (01:44:03):
So an officer claimed that bullet belonged to him or her?
Agent Hull (01:44:07):
That's my recollection, is that that was how it was accounted for.
Ms. Nestor (01:44:10):
And when was that accounted for?
Agent Hull (01:44:13):
I don't know specifically.
Ms. Nestor (01:44:15):
Do you remember what type of bullet that was?
Agent Hull (01:44:16):
I don't.
Ms. Nestor (01:44:16):
Was it a .30-06? Do you remember?
Agent Hull (01:44:16):
I don't.
Ms. Nestor (01:44:19):
Okay. Do you know where that bullet is now?
Agent Hull (01:44:25):
I don't.
Ms. Nestor (01:44:26):
Okay. So you had the amphitheater area that had to be preserved. And how far out did that stretch? The entire amphitheater, or just the area around the tent, or what?
Agent Hull (01:44:39):
My understanding was the entire amphitheater area was cordoned off, and there were attempts to secure the campus itself with a perimeter of officers who were monitoring or preventing people coming and going.
Ms. Nestor (01:44:52):
When you arrived on the scene, were you aware that an individual had been taken into custody?
Agent Hull (01:44:58):
I had heard that, yes.
Ms. Nestor (01:45:00):
Did you ever have any interaction with that individual?
Agent Hull (01:45:02):
I did not.
Ms. Nestor (01:45:04):
And were you advised at any point that that person was no longer a person of interest?
Agent Hull (01:45:11):
Information was passed down that the individual was not considered to be a suspect in the shooting.
Ms. Nestor (01:45:16):
And when was that, time-wise?
Agent Hull (01:45:18):
I don't recall specifically, but I know I was on campus when I had heard that.
Ms. Nestor (01:45:21):
So whoever arrested him as a potential suspect got that wrong. He wasn't the actual suspect, right?
Agent Hull (01:45:29):
Sorry, got what wrong?
Ms. Nestor (01:45:30):
That he was the shooter.
Agent Hull (01:45:33):
The person I believed to be the shooter was not the individual who was taken into custody, correct.
Ms. Nestor (01:45:37):
And then was there anybody else taken into custody as a person of interest?
Agent Hull (01:45:41):
There were several people who were detained for questioning and who were interviewed throughout the investigation.
Ms. Nestor (01:45:47):
And none of those people were ultimately, they were all ultimately cleared by you or somebody connected with you?
Agent Hull (01:45:54):
Correct.
Ms. Nestor (01:45:56):
And were there any other guns confiscated on the scene that day?
Agent Hull (01:46:00):
There were other firearms that were located on the scene, yes.
Ms. Nestor (01:46:03):
How many guns were confiscated that day?
Agent Hull (01:46:06):
I don't know specifically confiscated, but I know that there was a firearm found in a backpack that was accounted for during the day.
Ms. Nestor (01:46:14):
What type of firearm was that?
Agent Hull (01:46:15):
It was a handgun.
Ms. Nestor (01:46:17):
Any other guns that were found on the scene?
Agent Hull (01:46:19):
Not that I recall.
Ms. Nestor (01:46:25):
Do you recall an individual named Noah Gonzalez being interviewed?
Agent Hull (01:46:34):
I don't recall that name specifically.
Ms. Nestor (01:46:37):
Let me see if it refreshes your memory that he was an off-duty, I think maybe, trooper that was on the scene that day and that was involved in recovering the holster. Does that refresh your memory?
Agent Hull (01:46:48):
I know that a trooper was interviewed, having been on scene. I don't recall if it was Gonzalez. I don't recall the name, but I do know there was a trooper that was interviewed, yes.
Ms. Nestor (01:46:57):
Okay. And just a moment, Your Honor. And do you recall the trooper that was interviewed saying that there was actually a gun found in that holster?
Agent Hull (01:47:12):
I do not.
Ms. Nestor (01:47:13):
You do not?
Agent Hull (01:47:13):
No.
Ms. Nestor (01:47:18):
Okay. Can we pull up, Exhibit Poll 13 and just show it only to the witness for right now? All right. Can we go to page two of that report? Do you recognize this report? Have you reviewed it as part of your investigation duties?
Agent Hull (01:48:17):
I do recognize the report now, yes.
Ms. Nestor (01:48:19):
Okay. And this is a report prepared by, actually, Mr. Davis, who's going to testify later in this matter. Is that right?
Agent Hull (01:48:30):
Correct.
Ms. Nestor (01:48:30):
Okay. And on page two, this is the interview of Noah Gonzalez, is that right?
Agent Hull (01:48:34):
That's what it stated on page one, yes.
Ms. Nestor (01:48:39):
And he's an off-duty trooper who happened to be there that day?
Agent Hull (01:48:41):
Correct.
Ms. Nestor (01:48:43):
And do you see, on the second paragraph, does that refresh your memory about whether Trooper Gonzalez believed there was a gun found in a holster in that area of the amphitheater?
Agent Hull (01:48:58):
Trooper Gonzalez included in his report that there was a gun, yes.
Ms. Nestor (01:49:01):
Okay. Thank you. Okay. When did you first personally go up to the roof of the Losee building? Do you remember the time of that?
Agent Hull (01:49:26):
I don't recall. I know it was dark when I went up to the roof, so it would've been later that evening.
Ms. Nestor (01:49:32):
And at the time you went up there, there was already crime scene tape that had been placed around it?
Agent Hull (01:49:37):
There was. There was an officer standing security.
Ms. Nestor (01:49:40):
All right. And to your knowledge, as the head of the investigation, did they ever find any bullets or casings anywhere on the Losee roof?
Agent Hull (01:49:50):
Not to my knowledge, no.
Ms. Nestor (01:49:51):
Did they ever find any bullets or casings anywhere around the Losee building?
Agent Hull (01:49:57):
When you say around the Losee building, you mean how close? Immediately around the Losee building?
Ms. Nestor (01:50:02):
Correct.
Agent Hull (01:50:02):
Not to my knowledge, no.
Ms. Nestor (01:50:03):
Okay. And then you've been talking a lot about a timeline here that seemed, you talked about it when you were watching the video, but you also talked about the fact that you developed a timeline. Is that right?
Agent Hull (01:50:18):
Correct.
Ms. Nestor (01:50:19):
And can you pull up hole one, please? I'm pulling up on your screen your report that you prepared. Do you recognize that?
Agent Hull (01:50:33):
I do, yes.
Ms. Nestor (01:50:33):
And what's the date that you drafted that report?
Agent Hull (01:50:36):
It looks like September 14th. It says, "Date created."
Ms. Nestor (01:50:42):
And that's the place where, if you could go to page two, please. Do you see down at the bottom where you summarize Sergeant Bricker's report listing the timeline?
Agent Hull (01:50:53):
Yes.
Ms. Nestor (01:50:54):
Okay. And so it was actually Sergeant Bricker that prepared the timeline. Is that right?
Agent Hull (01:51:03):
He prepared a timeline.
Ms. Nestor (01:51:05):
And you incorporated that into your report?
Agent Hull (01:51:08):
No, I created a timeline.
Ms. Nestor (01:51:10):
You created your own timeline?
Agent Hull (01:51:11):
Yes.
Ms. Nestor (01:51:11):
Separate from the one that's in this report?
Agent Hull (01:51:14):
Yes. Using information obtained in the investigation.
Ms. Nestor (01:51:17):
And when did you create that timeline?
Agent Hull (01:51:20):
Over the course of the investigation, over a long period of time, after a lot of reviewing video and investigative time.
Ms. Nestor (01:51:28):
Okay. So as of September 14th, Tyler Robinson had already turned himself into the authorities. Is that right?
Agent Hull (01:51:41):
Yes. I believe he turned himself in on September 11th.
Ms. Nestor (01:51:44):
So prior to the time that Tyler Robinson turned himself in, had you all prepared a timeline?
Agent Hull (01:51:50):
A documented written timeline?
Ms. Nestor (01:51:52):
Yes.
Agent Hull (01:51:54):
Not to my knowledge. I don't know when Sergeant Bricker produced his specifically.
Ms. Nestor (01:52:00):
And isn't it fair to say that, as of the moment that Tyler Robinson voluntarily surrendered to authorities in Washington County, as of that moment, you all did not know who the shooter was. Is that right?
Agent Hull (01:52:15):
We had identified a person of interest, but we did not specifically know who the shooter was at that time.
Ms. Nestor (01:52:20):
Okay. And you became aware that Mr. Robinson was voluntarily surrendering how? How did you become aware of that?
Agent Hull (01:52:32):
That information came originally, I believe, from the Washington County Sheriff to the administration at the control center at the university on the evening of the investigation, or the second evening of the investigation.
Ms. Nestor (01:52:46):
All right. We're going to get back to that in a minute, but I just wanted to get the timeline down. All right. Now I want to go back to the videos that we've seen and the question that I just asked before, which is it fair to say that nothing about the video of the individual on the roof revealed to you, you couldn't see facial features, you couldn't see what they were wearing, correct?
Agent Hull (01:53:10):
Of the individual on the roof?
Ms. Nestor (01:53:11):
Correct.
Agent Hull (01:53:13):
I know that there was a meeting to discuss perhaps a pattern on the front of the shirt that was observed when the individual was jumping off of the roof.
Ms. Nestor (01:53:20):
Okay. That's fair. But at that time, as of the 11th, before Mr. Robinson turned himself in, you all had not been able to determine that. Is that right?
Agent Hull (01:53:29):
Excuse me. Determine who he was, or determine distinguishing features?
Ms. Nestor (01:53:34):
Determine distinguishing features of the video of the person on the roof.
Agent Hull (01:53:39):
Yes. We had a person of interest and those images were released to the press.
Ms. Nestor (01:53:42):
You're talking about the ones in the stairwell from the-
Agent Hull (01:53:44):
Correct.
Ms. Nestor (01:53:45):
From the parking garage?
Agent Hull (01:53:46):
Correct.
Ms. Nestor (01:53:47):
But the video on the roof was not distinguishable, fair?
Agent Hull (01:53:51):
That video as a standalone?
Ms. Nestor (01:53:53):
Yes.
Agent Hull (01:53:53):
It was not, no.
Ms. Nestor (01:53:54):
Okay. And in fact, the video on the roof... Well, strike that. Is it true that you had some spectators that you interviewed that had gotten a photograph a few seconds before the shooting of someone on the roof?
Agent Hull (01:54:19):
Sorry, I'm not sure I understand the question.
Ms. Nestor (01:54:21):
Did you at some point in your investigation collect from two young men who were present at the event a video that they had taken of someone on the roof about 10 seconds before the shooting?
Agent Hull (01:54:33):
Yes. A video, yes. Not photographs. A video was collected from an individual who had a video.
Ms. Nestor (01:54:39):
And ultimately some screenshots were taken out of that video. Is that right?
Agent Hull (01:54:43):
By?
Ms. Nestor (01:54:45):
By you?
Agent Hull (01:54:47):
Not by me, no.
Ms. Nestor (01:54:48):
Okay. That's fine. It could have been someone else.
Agent Hull (01:54:51):
Okay.
Ms. Nestor (01:54:51):
But did you see the video that those young men took?
Agent Hull (01:54:54):
If you're referring to the video that is looking north and shows an individual dressed in dark clothing on the corner of the roof.
Ms. Nestor (01:55:00):
Yes.
Agent Hull (01:55:01):
If that is the video, I have seen that video. Yes.
Ms. Nestor (01:55:04):
Did you review the interview of those young men?
Agent Hull (01:55:06):
I did not.
Ms. Nestor (01:55:08):
Do you know how they described the person on the roof?
Agent Hull (01:55:12):
I don't know if I read it or if I heard it, but my understanding was they believed it was overwatch or some kind of a police overwatch for the event, if that's my recollection.
Ms. Nestor (01:55:22):
Okay. And do you remember anything specific about the person's build that they discussed when they described the person on the roof?
Agent Hull (01:55:28):
I do not, no.
Ms. Nestor (01:55:39):
Okay. There is a portion of the video after the individual jumped off the roof, which we all saw here, where the individual crosses, I believe it's Campus Drive. Is that right?
Agent Hull (01:55:49):
Correct.
Ms. Nestor (01:55:50):
And there's a moment where the individual waits, and there's two cars that pass in front of him, right in front of him.
Agent Hull (01:55:56):
Correct.
Ms. Nestor (01:55:57):
And is this the moment where you are submitting that he was holding a gun in his hand?
Agent Hull (01:56:04):
As he crossed the road?
Ms. Nestor (01:56:05):
Yes.
Agent Hull (01:56:06):
I, from my observations, would show that he's carrying an object in his hand that's concealed, or in a bag, and it is long and has the appearance, based on my training and experience, it could be a firearm.
Ms. Nestor (01:56:19):
But do you see a gun anywhere? The actual gun?
Agent Hull (01:56:22):
In the video?
Ms. Nestor (01:56:23):
Yeah.
Agent Hull (01:56:23):
No.
Ms. Nestor (01:56:24):
All right. And did anybody that was driving by on Campus Drive that day report to you or any other investigative entity, "Hey, we just drove by a guy with a gun who was leaving campus and he was standing right by my car?"
Agent Hull (01:56:36):
We did not receive any reports to that effect, no.
Ms. Nestor (01:56:39):
Okay. Also, when you were revealing the timeline, exactly how long was there between when the person was prone on the roof and when the shot was taken? Do you recall?
Agent Hull (01:56:55):
If you would like to replay the video, I can time it for you, but I don't recall. It was my guess, my guess, I would estimate, between 15 and 30 seconds.
Ms. Nestor (01:57:05):
So between 15 and 30 seconds to lay flat, take a shot, and get up and run off, right?
Agent Hull (01:57:15):
I think you asked how long he was prone.
Ms. Nestor (01:57:17):
Right.
Agent Hull (01:57:17):
I think it took longer for him to crawl into position.
Ms. Nestor (01:57:19):
Okay.
Agent Hull (01:57:20):
And then establish a position and then take the shot. He appeared to be in prone for approximately 15 to 30 seconds, but the video would verify that.
Ms. Nestor (01:57:29):
Okay. Thank you. All right. I want to talk to you for just a minute about the video that was taken. And I'm not going to get into the... I'm not going to show it, just so, in case anybody's concerned about leaving the courtroom, I'm not going to show it. But there was a video that was taken by Mr. Ty Phillips from behind the individual that was speaking to Mr. Kirk.
Agent Hull (01:58:05):
Correct.
Ms. Nestor (01:58:06):
And it showed a dead-on view of Mr. Kirk and his parts of his security team. Is that right? And then you also have video that you described that shows the back of the tent at the moment the shot happened. Is that right? Behind Mr. Kirk.
Agent Hull (01:58:25):
You're referring to the UVU video in the breezeway?
Ms. Nestor (01:58:27):
Yes.
Agent Hull (01:58:27):
We have that video, yes.
Ms. Nestor (01:58:30):
Okay. And can we pull up the last video, the last clip, 49? I want to show you, just you, this clip that is a little clip from that video under the breezeway that's behind the tent, right?
Agent Hull (01:58:51):
Correct.
Ms. Nestor (01:58:52):
And just to be clear, this area behind the tent would not have been visible to anybody that was on the Losee building. Is that fair?
Agent Hull (01:58:59):
I can't answer that question.
Judge (01:59:01):
Can I interrupt for just one moment? [inaudible 01:59:04]
Ms. Nestor (01:59:04):
Yeah, sure.
Judge (01:59:18):
And Ms. Nester, as you're playing this, are you just being cognizant if the sound is on or not?
Ms. Nestor (01:59:26):
I don't want the sound. Please.
Judge (01:59:27):
I just wanted to clarify.
Ms. Nestor (01:59:28):
Thank you for bringing that. Thank you.
Judge (01:59:30):
All right.
Ms. Nestor (01:59:31):
No sound. I just want only the witness to look at it. So can you just watch this clip for just a minute? This one little clip of behind the breezeway at the time of the shot?
Judge (01:59:42):
That's fine. And so just as a reminder to all the parties, if it's on your monitor, please be cognizant of that. It will not be displayed on the main monitor. Ms. Nester, you may proceed.
Ms. Nestor (01:59:52):
Thank you. Is it playing? Okay. Do you remember that? Does that refresh your memory of what's in that clip?
Agent Hull (02:00:10):
Yes.
Ms. Nestor (02:00:11):
And having reviewed that at the time the shot was fired, there was no one standing directly behind the tent. Is that correct?
Agent Hull (02:00:21):
You'd have to show me it again. I wasn't specifically looking for that.
Ms. Nestor (02:00:26):
Okay.
Agent Hull (02:00:26):
But I can answer that question if I can view the video again.
Ms. Nestor (02:00:27):
Okay. And just before you do that, I think you testified before that Mr. Kirk would've been dead center behind that banner. Is that right?
Agent Hull (02:00:35):
Approximately.
Ms. Nestor (02:00:36):
Okay. So what I'm asking is if anyone behind that banner, dead center behind Mr. Kirk, if there was any people standing there. Go ahead.
Agent Hull (02:00:45):
So there's a videographer on the right side of the tent and then I can only see as far as the video allows me to. So I can't speak to whether there's anybody out of frame who could have been behind the tent.
Ms. Nestor (02:01:06):
But what you can see, is there anyone directly behind the middle of the tent?
Agent Hull (02:01:09):
Yes. There's a videographer who stood behind the tent.
Ms. Nestor (02:01:12):
To the right?
Agent Hull (02:01:14):
Yes, behind the tent.
Ms. Nestor (02:01:15):
Correct. But directly in the middle of the tent, is there anyone standing?
Agent Hull (02:01:18):
There's no one stood in the middle behind the tent. No.
Ms. Nestor (02:01:21):
Thank you. All right. I want to talk now about the TP. You can take it down off of the screen. Thank you. I want to talk now about the TPUSA video that you got that was the angle that was taken from behind Mr. Kirk while he was talking, looking out at the audience when the shot was fired. Do you remember that video?
Agent Hull (02:01:44):
The Visual Impulse videos?
Ms. Nestor (02:01:45):
Yes.
Agent Hull (02:01:45):
Yes.
Ms. Nestor (02:01:46):
All right. Is it true that Visual Impulse provided four videos?
Agent Hull (02:01:52):
Yeah, I believe there were four total videos that encompassed everything that they provided to us. Yes.
Ms. Nestor (02:01:57):
But the one that you showed, that's only one of the four that they provided to you?
Agent Hull (02:02:03):
That one that was shown had a Bates number. It was an item that was provided by Utah County Attorney's Office.
Ms. Nestor (02:02:10):
Okay. But were there more that you haven't seen in this courtroom in this prelim that you got from-
Agent Hull (02:02:16):
There's the original footage.
Ms. Nestor (02:02:17):
Okay. But were there other angles that are not shown here in this prelim?
Agent Hull (02:02:23):
Yes.
Ms. Nestor (02:02:23):
Okay. That's what I was trying to get to. Thank you. All right. Were you involved when the gun was located in the forest area?
Agent Hull (02:02:41):
I was not involved in the search for the gun, no.
Ms. Nestor (02:02:45):
Did you get notice when it was located?
Agent Hull (02:02:48):
From the footage that we reviewed, we identified an area that we believed could be potentially of evidentiary value, and then it was secured. And then I was notified that, as a result of that search, a gun had been located. Yes.
Ms. Nestor (02:03:01):
Were you involved in the processing of that gun? In other words, boxing it, shipping it, sending it wherever it was going to go to be analyzed?
Agent Hull (02:03:08):
I was not, no.
Ms. Nestor (02:03:09):
Okay. Thank you. All right. Now I want to shift to the autopsy for just a moment. You were not present at the autopsy, is that right?
Agent Hull (02:03:20):
I was not.
Ms. Nestor (02:03:22):
Okay. So anything you know about the autopsy was not from personal observation?
Agent Hull (02:03:27):
No, other than from my meeting with the medical examiner and his report, no, I was not present.
Ms. Nestor (02:03:33):
Did you meet with the medical examiner after he had conducted the autopsy?
Agent Hull (02:03:37):
I did, yes.
Ms. Nestor (02:03:38):
And when you met with him, did you provide him information about what you all had learned in your investigation so far?
Agent Hull (02:03:46):
We didn't have any reason to provide any investigative information to him. The purpose of the meeting was to establish what information he could provide to us.
Ms. Nestor (02:03:55):
Well, in fact, on the front page of the medical examiner's report, he talks about the investigation and information he learned. Did he learn that from you, or did he learn it from someone else?
Agent Hull (02:04:07):
Would be my recollection that he did not learn that from us, but I couldn't speak to how he did learn about it.
Ms. Nestor (02:04:11):
Okay. So you didn't share with him your conclusions about what happened or how Mr. Kirk was injured or anything like that?
Agent Hull (02:04:18):
That's my recollection.
Ms. Nestor (02:04:19):
Okay. Thank you. And isn't it also true that fingerprints that were taken from Mr. Kirk and autopsy photos were provided to you on a CD?
Agent Hull (02:04:31):
Yes.
Ms. Nestor (02:04:32):
Was there anything else provided to you from the autopsy other than that?
Agent Hull (02:04:36):
Other than the CD and the report?
Ms. Nestor (02:04:38):
Yes.
Agent Hull (02:04:38):
Not to me, no.
Ms. Nestor (02:04:42):
Okay. You did mention not to you. Were you aware of anything else from the autopsy going to anyone else?
Agent Hull (02:04:48):
I believe standard practice is anything of evidentiary value that the medical examiner collects is transferred through chain of custody.
Ms. Nestor (02:04:55):
And are you aware of anything that was transferred after Mr. Kirk's autopsy?
Agent Hull (02:05:00):
I'm aware that there were items transferred for evidence, yes.
Ms. Nestor (02:05:03):
What items?
Agent Hull (02:05:04):
I believe some fragments of a bullet casing. I know Mr. Kirk's personal items to be returned to the family. That's all I can recall off the top of my head.
Ms. Nestor (02:05:19):
Do you know how many fragments from the bullets?
Agent Hull (02:05:21):
I don't.
Ms. Nestor (02:05:21):
Okay. Now I'd like to talk a little bit about the Ring camera that you obtained. And you interviewed a woman named Ms. Noble, is that right? To get that Ring camera that we watched with the car on the outside?
Agent Hull (02:05:38):
We interviewed her to verify the authenticity of the video, yes.
Ms. Nestor (02:05:42):
And were you involved in that interview?
Agent Hull (02:05:45):
With Ms. Noble?
Ms. Nestor (02:05:46):
Mm-hmm.
Agent Hull (02:05:46):
Yes.
Ms. Nestor (02:05:47):
And do you recall what they told you about what they remember seeing in and around that car that night?
Agent Hull (02:05:53):
I don't recall. I just know we were there to verify the video. I didn't conduct an interview with Ms. Noble at that time.
Ms. Nestor (02:06:00):
Okay. Can we please bring up poll... Sorry, just a moment. Let's see. Poll 48. This is Ms. Noble's interview. Do you have it? All right. Do you remember that? Looking at that interview, does that refresh your recollection?
Agent Hull (02:06:44):
I remember reading the report at some point, yes.
Ms. Nestor (02:06:46):
And do you remember that the Nobles told you that the driver of the vehicle was bald?
Agent Hull (02:06:53):
I do remember that being in the report, yes.
Ms. Nestor (02:06:55):
And you didn't mention that today when you were talking about that Ring camera, did you?
Agent Hull (02:07:01):
I did not.
Ms. Nestor (02:07:02):
And did they also tell you there were three other people in the car?
Agent Hull (02:07:08):
Yes, I believe they thought that was the case.
Ms. Nestor (02:07:09):
Okay. I want to go back if I can to the scene itself, the preservation of the actual scene where Mr. Kirk passed. Did you all have canine dogs at any point that sniffed that area?
Agent Hull (02:07:36):
I don't know specifically that area, but I do know that canines were present or a canine was present on the day.
Ms. Nestor (02:07:41):
But you don't know what tasks the canine was given?
Agent Hull (02:07:44):
My understanding was that it may have been used in an effort to track an individual that had jumped off the roof, but I don't know for certain.
Ms. Nestor (02:07:52):
And obviously that didn't produce any results, or we would've heard about that, right?
Agent Hull (02:07:56):
Yeah, not that I was made aware of.
Ms. Nestor (02:07:58):
Okay. Do you know when the tent and the stuff was actually removed from the scene?
Agent Hull (02:08:11):
I don't. I would imagine it had been at least a couple of days, if not longer than that, before anything was removed from the scene.
Ms. Nestor (02:08:18):
You didn't have to give permission to remove the tent?
Agent Hull (02:08:22):
Me personally?
Ms. Nestor (02:08:23):
Right.
Agent Hull (02:08:23):
No.
Ms. Nestor (02:08:24):
So you're not sure when it was removed?
Agent Hull (02:08:27):
No.
Ms. Nestor (02:08:28):
And were you involved in the decision to pave over the dirt that was under the tent?
Agent Hull (02:08:34):
At UVU?
Ms. Nestor (02:08:34):
Uh-huh.
Agent Hull (02:08:35):
No.
Ms. Nestor (02:08:36):
Did you know that happened?
Agent Hull (02:08:37):
Only because it was in the news.
Ms. Nestor (02:08:39):
All right. But you don't know when or who ordered that?
Agent Hull (02:08:42):
No.
Ms. Nestor (02:08:50):
And it's true that during the time before Mr. Robinson turned himself in, you all received lots and lots of tips from the public. Is that fair?
Agent Hull (02:08:59):
Correct.
Ms. Nestor (02:09:00):
You received tips of death threats that Mr. Kirk had received the day before the shooting. Is that right?
Agent Hull (02:09:10):
I'm sorry. Did we receive threats that Mr. Kirk had received before the event, or?
Ms. Nestor (02:09:16):
Let me clarify.
Agent Hull (02:09:17):
Thank you.
Ms. Nestor (02:09:17):
That was a confusing question. As you were going through tips that the public was giving you, did you receive tips about online death threats that had been made against Mr. Kirk prior to his death?
Agent Hull (02:09:29):
There was a huge variety of tips and information and suggestions that were being provided by the public.
Ms. Nestor (02:09:37):
Okay. And some of those filtered through you, right?
Agent Hull (02:09:41):
Some of them filtered their way down to us, but predominantly that was being handled by our state information and analysis center that had been set up.
Ms. Nestor (02:09:49):
Okay. And you also got multiple tips about potential suspects, people who though they recognized people in the picture, right?
Agent Hull (02:09:58):
Yes. There were different calls and information provided by the public.
Ms. Nestor (02:10:01):
And you had quite a few of those?
Agent Hull (02:10:03):
Correct.
Ms. Nestor (02:10:06):
And then Mr. Robinson turned himself in, right?
Agent Hull (02:10:11):
Yes.
Ms. Nestor (02:10:12):
And is it your understanding that the individual they used to facilitate Mr. Robinson turning himself in was someone known to Mr. Robinson personally that had been connected to law enforcement?
Agent Hull (02:10:26):
I know he was known to the family. I don't know his connection specifically with Mr. Robinson, but I am aware that someone was used to facilitate Mr. Robinson turning himself in.
Ms. Nestor (02:10:35):
And were you aware that he was one of his Boy Scout leaders? Did you know that?
Agent Hull (02:10:40):
I think I had heard that at some point. There was a connection. I don't recall specifically what it was.
Ms. Nestor (02:10:45):
And Mr. Robinson, in fact, no police went to go arrest him. He drove himself, or he was driven with his parents, to the Washington County Sheriff's Department, correct?
Agent Hull (02:10:57):
That's my understanding, yes.
Ms. Nestor (02:10:59):
And he voluntarily walked in?
Agent Hull (02:11:01):
That's also my understanding, yes.
Ms. Nestor (02:11:03):
And that was the first moment you ever knew his name connected with this case?
Agent Hull (02:11:09):
Yeah. Aside from the image that we had, that was the first time that we had a name of an individual who had taken responsibility. Yes.
Ms. Nestor (02:11:18):
And did you personally ever meet with Mr. Robinson?
Agent Hull (02:11:21):
I did not.
Ms. Nestor (02:11:21):
And as far as you know, Mr. Robinson did what he said he was going to do. He told the police he was coming, he was coming peacefully, he was coming with his parents, and that's exactly what happened?
Agent Hull (02:11:38):
I don't know any of the specifics of how he was arranged to turn himself. In terms of what you've described, I just know that it was being facilitated with the sheriff's office.
Ms. Nestor (02:11:48):
Okay. Court's indulgence for just a moment, Your Honor.
Judge (02:11:51):
Yes.
Ms. Nestor (02:12:07):
Thank you, Agent Hull. I tender the witness, Your Honor.
Judge (02:12:09):
Thank you. Redirect by the State.
Mr. Sturgill (02:12:12):
[inaudible 02:12:12] I'm just going to go back to a few things that Ms. Nester asked you about. First of all, the unfired bullet that you referred to, it's your understanding that that bullet was accounted for?
Agent Hull (02:12:38):
That's my recollection, yes.
Mr. Sturgill (02:12:39):
Okay. And it possibly belonged to an officer that could have maybe been clearing his weapon?
Agent Hull (02:12:45):
Yes, that's what I recall being told about that particular item, yes.
Mr. Sturgill (02:12:51):
Are you aware of if, on the 10th there were police officers present that were actually securing buildings and securing rooms there at UVU?
Agent Hull (02:13:02):
I know prior to my arrival, it was a dynamic and active scene that I believe was originally being treated that there was an active shooter on campus. So there was a large rapid response of law enforcement who were actively trying to clear, secure, and ensure that the campus was safe, if that answers the question.
Mr. Sturgill (02:13:25):
The entire campus?
Agent Hull (02:13:26):
Yes, correct.
Mr. Sturgill (02:13:28):
Okay. And what types of officers were there clearing the campus?
Agent Hull (02:13:34):
Originally, there would've been probably local units who would've responded, but subsequently specialty teams would've been deployed to do a more methodical search of the campus and what we would call a clearing of the campus.
Mr. Sturgill (02:13:50):
And those specialty teams and any other officers, how were they equipped? What type of equipment were they carrying?
Agent Hull (02:13:56):
I believe most officers carry a sidearm, a handgun, and most officers in this day and age are equipped with a rifle platform as well.
Mr. Sturgill (02:14:03):
Okay. When you said that it was possible that that round was from an officer clearing his weapon, what exactly do you mean by that?
Agent Hull (02:14:16):
Our standard practice in our department is to carry a rifle cruiser ready.
Mr. Sturgill (02:14:19):
I'm sorry?
Agent Hull (02:14:21):
We carry our rifles in a situation which is called cruiser ready.
Mr. Sturgill (02:14:24):
What does that mean?
Agent Hull (02:14:25):
It means we don't have a round chambered. So if an officer deployed with his rifle, he would chamber a round. Once he had done whatever task it was that he was doing in order to put that weapon back, he would eject the magazine and eject the round. Sometimes, in doing so, rounds are dropped or not accounted for.
Mr. Sturgill (02:14:45):
Okay. Have you personally done that yourself?
Agent Hull (02:14:49):
We do that at training and I've done that in the field as well, yes.
Mr. Sturgill (02:14:51):
Okay. And you're aware of, is that something that's common among police officers in this situation?
Agent Hull (02:14:57):
I believe for most agencies that's how they carry their weapons, but I can't speak specifically to agencies outside my own.
Mr. Sturgill (02:15:04):
Do you have any idea how many officers were dedicated or sent out to clear the campus?
Agent Hull (02:15:11):
I can tell you I had to park on University Avenue and walk all the way onto campus between hundreds of police cars. So I would say hundreds if not a thousand officers. High hundreds would've responded to the campus that day.
Mr. Sturgill (02:15:28):
Now I'm going to ask you about, Ms. Nester asked you about your observation of seeing Mr. Robinson with something in his hand. And I think she was asking you about Mr. Robinson just prior to crossing Campus Drive following the shooting. Do you remember that question?
Agent Hull (02:15:50):
Yes. I think I was asked whether he had a gun, or I had seen a gun in his hand in the video.
Mr. Sturgill (02:15:55):
And you said that you did see something in his hand?
Agent Hull (02:15:57):
Correct.
Mr. Sturgill (02:15:58):
Okay. I want you to go back as far as you can remember. At what point after-
PART 4 OF 14 ENDS [02:16:04]
Mr. Sturgill (02:16:03):
... You can remember, at what point after Mr. Robinson stood up on top of the Losee building and ran across, I believe to the northeast corner, when did you first notice, in that video, something in his hand?
Agent Hull (02:16:16):
The first time you can clearly notice he has something in his hand, without a doubt, is when he's on the white triangular portion on the northeast corner of the Losee building preparing to jump, but it's very apparent he has an item in his hand.
Mr. Sturgill (02:16:30):
Okay. And that's based on your observation of the videos?
Agent Hull (02:16:32):
Correct.
Mr. Sturgill (02:16:34):
Okay. And is it easier to see in that enhanced video?
Agent Hull (02:16:37):
The zoomed version of the video makes it a lot clearer to see. Yes.
Mr. Sturgill (02:16:40):
Okay. And then after he drops down off of the roof of the Losee building, is there any time between that point in time and making his way to Campus Drive that you believe you see, again, something in his hand?
Agent Hull (02:16:57):
As Mr. Robinson lands on the grass, it's almost like he either drops it or goes into a crouched position. And then when he returns up from that, it is, again, clear that there is some kind of an item in his hand. Yes.
Mr. Sturgill (02:17:10):
Okay. Can you be more specific or describe in more detail what that item might be?
Agent Hull (02:17:16):
It appears to be black. And it appears to be longer.
Mr. Sturgill (02:17:18):
Okay. Okay. Anything else about that item?
Agent Hull (02:17:21):
No.
Mr. Sturgill (02:17:21):
Okay. I believe it was Exhibit 9, State's Exhibit 9, that Ms. Nester pulled up on the screen. And she had you look at that. And I believe-
Agent Hull (02:17:41):
The-
Mr. Sturgill (02:17:42):
... I believe what you looked at was, beginning, a still image, but then a few moments or a few seconds of that video. And that's the UVU tunnel video; is that right?
Agent Hull (02:17:51):
The breezeway underneath the Hall of Flags. Yes.
Mr. Sturgill (02:17:53):
And the view is from behind where I believe you testified that Mr. Kirk was on the other side of what appears to be a banner in that tunnel view.
Agent Hull (02:18:04):
Yes.
Mr. Sturgill (02:18:05):
And on the other side of that banner is the tent and then the rest of the courtyard. Is that fair to say?
Agent Hull (02:18:09):
Correct.
Mr. Sturgill (02:18:10):
Do you remember seeing the banner?
Agent Hull (02:18:13):
Yes.
Mr. Sturgill (02:18:13):
In the video? Okay. And-
Agent Hull (02:18:16):
You're referring to the back of the pop-up tent-
Mr. Sturgill (02:18:18):
Correct.
Agent Hull (02:18:18):
... correct?
Mr. Sturgill (02:18:19):
Yes.
Agent Hull (02:18:19):
Okay. Yes.
Mr. Sturgill (02:18:20):
Okay. And do you remember ... What do you remember about that banner?
Agent Hull (02:18:24):
It has some kind of an emblem on it. And it forms the back portion of the pop-up tent.
Mr. Sturgill (02:18:32):
Is it opaque? Is it transparent? How would you describe-
Agent Hull (02:18:35):
No. You can't see through it. It's white. And then you cannot see through it. No.
Mr. Sturgill (02:18:39):
And how much of the tunnel does that banner, I guess, if it's opaque, obstruct?
Agent Hull (02:18:50):
I couldn't say. I'm assuming it's a 20 by 20 gazebo, so it would block out the area of the back of the tent that you can see.
Mr. Sturgill (02:19:01):
And where ... I'm sorry.
Agent Hull (02:19:02):
You would not be able to see through it. You would not be able to see through it from the audience side of the amphitheater.
Mr. Sturgill (02:19:06):
And what about the tunnel side of that banner? Can you see through the tunnel side in the opposite direction?
Agent Hull (02:19:12):
You cannot. No.
Mr. Sturgill (02:19:13):
Okay. Can you see Mr. Kirk on the other side of that banner?
Agent Hull (02:19:16):
You can't. No.
Mr. Sturgill (02:19:26):
Okay. Well, we exhibited or Ms. Nester had you watch just, I believe, just a brief few seconds of that video. That exhibit is actually much longer than what we just looked at or what Ms. Nester had you look at; is that right?
Agent Hull (02:19:38):
Correct.
Mr. Sturgill (02:19:39):
Okay. And leading up ... And again, I'm referring to that view, that tunnel view of that surveillance camera. Leading up to the shot, what's going on behind that banner?
Agent Hull (02:19:52):
There are representatives, I believe, of TP USA, but there are representatives of TP USA. There are law enforcement representatives. I don't know if there's any student body. But essentially, people are moving to and fro behind that area. A couple of individuals are retrieving items from a vehicle, but there's consistent movement behind and in that area.
Mr. Sturgill (02:20:12):
Okay. Directly behind the banner?
Agent Hull (02:20:15):
Correct.
Mr. Sturgill (02:20:19):
Ms. Nester asked you about the wooded area that Mr. Robinson entered. Well, Ms. Nester brought that up. And I believe your testimony has been, between today and yesterday, that you witnessed Mr. Robinson enter a wooded area on at least two occasions. Is that fair to say?
Agent Hull (02:20:40):
Yes. On his second visit to the campus and on the visit where the incident took place.
Mr. Sturgill (02:20:50):
Okay. At least on those two occasions, the wooded area that he entered, were they different parts of the wooded area, or was it the same parts of the-
Agent Hull (02:20:59):
They appeared to be the same.
Mr. Sturgill (02:21:02):
You're aware that a rifle was eventually discovered?
Agent Hull (02:21:07):
Yes.
Mr. Sturgill (02:21:08):
And was it your understanding that that rifle was discovered in a wooded area?
Agent Hull (02:21:14):
It was in the wooded area where we believe Mr. Robinson entered the wooded area. Yes.
Mr. Sturgill (02:21:18):
Okay. And that rifle was discovered on the 10th?
Agent Hull (02:21:24):
Yes.
Mr. Sturgill (02:21:28):
Ms. Nester asked you about a variety of tips, tips including threats to Mr. Kirk, I think, before the event?
Agent Hull (02:21:37):
Yes.
Mr. Sturgill (02:21:38):
And did you follow up on those tips?
Agent Hull (02:21:43):
After tips have been put through a process and been analyzed and screened, anything that appeared to have relevance to either the investigation or a credible threat was managed by the various entities involved. Yes.
Mr. Sturgill (02:21:56):
Okay. So managed by law enforcement, so-
Agent Hull (02:21:57):
Correct.
Mr. Sturgill (02:21:58):
Did you personally follow up on any of the tips?
Agent Hull (02:22:01):
I don't think I personally did, but I worked closely with people who did.
Mr. Sturgill (02:22:08):
The point is, I guess, is that those tips were followed up on. Is that fair to say?
Agent Hull (02:22:11):
To the best of our ability. Yes.
Mr. Sturgill (02:22:13):
Okay. And then Ms. Nester also asked you about tips, I believe, of people reporting to police that they felt like they knew who the shooter was.
Agent Hull (02:22:23):
Yes.
Mr. Sturgill (02:22:24):
Okay. So identities of possible shooters?
Agent Hull (02:22:27):
Correct.
Mr. Sturgill (02:22:27):
Did law enforcement follow up on those tips as well?
Agent Hull (02:22:30):
They did.
Mr. Sturgill (02:22:38):
Finally, Ms. Nester asked you ... Well, she asked you whether Mr. Robinson voluntarily went to the sheriff office down in Southern Utah; is that right?
Agent Hull (02:22:59):
Yes.
Mr. Sturgill (02:23:00):
Okay. And that was the Washington County Sheriff's Office?
Agent Hull (02:23:02):
Yes.
Mr. Sturgill (02:23:03):
Okay. You understood that he turned him ... Well, he showed up there voluntarily; is that right?
Agent Hull (02:23:07):
Correct.
Mr. Sturgill (02:23:08):
What was your understanding as to why he was showing up there voluntarily?
Agent Hull (02:23:13):
He had informed, I believe, his immediate family that he had been involved in the shooting and that he wanted to turn himself in.
Mr. Sturgill (02:23:40):
Okay. Nothing further. [inaudible 02:23:24]. In the video that we've already talked about, the video where Mr. Robinson stands up and runs across the top of the Losee building, do you notice whether at that point, after he stood up until you see him last, at least in that part of the video, do you notice whether he's walking or running with a limp?
Agent Hull (02:24:02):
He is not. From the time he left the ... After going over the railing, when we see him on the video move out to the position-
Mr. Sturgill (02:24:10):
Correct.
Agent Hull (02:24:10):
... and then leave the position, there is no longer a visible limp or gait.
Mr. Sturgill (02:24:15):
Thank you.
Judge (02:24:17):
Ms. Nester.
Kathryn Nester (02:24:21):
No follow up, Your Honor.
Judge (02:24:22):
All right. May Agent Hull be excused?
Kathryn Nester (02:24:24):
Yes, Your Honor.
Mr. Sturgill (02:24:25):
Yes.
Judge (02:24:26):
All right. Agent Hull, thank you.
Agent Hull (02:24:27):
Thank you, Your Honor.
Kathryn Nester (02:24:28):
Can we have just a minute to meet with the counsel?
Judge (02:24:31):
All right. Let's take a five-minute break and allowing parties to confer. Court is in a brief recess.
(02:24:37):
... Session. We left off with Agent Hull was excused. And we are proceeding. Mr. McBride.
Mr. McBride (02:43:28):
Yes, Your Honor. We intend to call Jennifer Faumuina. But before I do that, I'd move the admission of State's Exhibit 5.1 if I can approach the bench.
Judge (02:43:40):
Yes. Thank you.
Richard Novak (02:43:45):
Your Honor, there will be an objection that we want to be heard on the objections. And I didn't know this was coming now. It could be a lengthy [inaudible 02:43:54].
Judge (02:43:54):
All right. Let me just ... Do you wish to identify what State's Exhibit 5.1 is?
Mr. McBride (02:44:02):
Yes, Your Honor. Exhibit 5.1 is a self-authenticating 1102 statement issued by David Engelhardt from Turning Point USA.
Judge (02:44:19):
All right.
Mr. McBride (02:44:21):
And again, I say it's a self-authenticating document. As you can see there, it's got the admonition on page one. The body of the 1102 statement is there on pages one and two. I would say number four is kind of the foundational statement, paragraph four, but the self-authentication portion is the notary acknowledgement on page three.
Judge (02:44:49):
All right. Turning to Mr. Novak.
Richard Novak (02:44:53):
Thank you, Your Honor. Thank you, Mr. McBride. So the court, obviously, because the court can decide how much of this we discuss in open court, how much we discuss at the bar, so to speak, sidebar. There's initially a fundamental relevance problem with this 1102. There are other issues, but I think that just to help the court parse the evidentiary issues, we should start with the relevance. There are sub-issues. There's also a problem under 1102 because if the court looks at the last paragraph of this, Mr. Engelhardt, who is the purported author, refers to himself in the third person, so it's not clear to me who actually wrote this report. And as Your Honor knows, 1102 says that prosecutors are not to assist witnesses in writing their own 1102 reports.
(02:46:08):
That's not my primary concern, although I think it is an important issue because that's what the rules require. But the real question is relevance. And I guess the question is, does the court want me to do the speaking objection? Because the court said no speaking objections. Should we approach sidebar? How does the court want to handle it? The people can move their exhibits into evidence whenever they wish. I wasn't aware we were going to do it at this moment. I'm ready to proceed, but the question is how the court wants to handle these objections. I'm prepared to keep going in open court, but it's what the court referred to as a speaking objection.
Judge (02:46:47):
No. I appreciate that. As it relates to ... Well, so here's my question for you, Mr. Novak. And again, I appreciate your discretion in highlighting that point. Do you anticipate your argument being of the nature that would defeat the purpose of ... If the court does not admit this, that you've already let the cat out of the bag with your argument? Or do you feel that you can make your argument without compromising what is in the 1102 so the purpose of ... If excluding it is still preserved?
Richard Novak (02:47:33):
I'll go as far as I think we can go, and then we'll just see. I do think ... I am not trying to conceal from anybody in the courtroom or the public-
Judge (02:47:46):
Of course.
Richard Novak (02:47:46):
... our concerns about relevance. So why don't I, taking the court's lead, go forward publicly with my concerns about relevance? And if we reach a moment where it feels like further argument may deprive Mr. Robinson of his fair trial rights, we can approach.
Judge (02:48:03):
All right. We'll proceed.
Richard Novak (02:48:04):
Okay. So then what I'm going to do is I'm going to point out that this proposed exhibit, which is the 1102 statement of Mr. Engelhardt, is basically four paragraphs. The fourth paragraph identifies Mr. Engelhardt, although I say in the third person, as a pastor and as an attorney who was a friend and a counselor to Mr. Kirk and was involved in leadership of Turning Point USA. So that identifies who the author is. Beyond that, it's not really relevant to any of the issues before this court. Paragraphs one, two, and three. Paragraph one talks about Turning Point USA's status with the Internal Revenue Service, the purposes of Turning Point USA within the context of the Internal Revenue Code, and what I'll just refer to generically as the goals and objectives of Turning Point USA. And it also then talks, in the second paragraph, about Mr. Kirk's relationship with TP USA.
(02:49:42):
None of this is unknown information, that he was a founder, that he was the chief executive officer, that he was the president of the board until his death. So I'm still not sure what the relevance is. And I guess actually what I should say is I don't believe there is any relevance.
PART 5 OF 14 ENDS [02:50:04]
Richard Novak (02:50:03):
And I guess, actually, what I should say is I don't believe there is any relevance of any of this information. Paragraphs two and three are ... And actually, I'm going to preface this. My discussion of this is within the context of the rules of evidence, and there's nothing that I'm going to say here that is meant to derogate, criticize, question Mr. Engelhardt's beliefs, what he says were Mr. Kirk's beliefs, what Mr. Engelhardt says he believes are tenets of Christianity. That's not what we're talking about. What we're talking about is whether this document is admissible in this proceeding under the rules of evidence.
Judge (02:50:53):
Okay.
Richard Novak (02:50:54):
So paragraphs two and the three include not only Mr. Engelhardt's opinions, and now I'm going from relevance to opinion evidence, it's not clear to me whether it's lay opinion evidence, whether it's expert opinion evidence, but it's Mr. Engelhardt's opinions about a branch of Christianity, his opinions about a portion of the Bible. He quotes the Bible, and he talks about Mr. Kirk's religious beliefs. And I could go into more detail, but the court has the exhibit in front of itself. So none of this is relevant.
(02:51:40):
If the court looks at the information that is the document which lays out the allegations against Mr. Robinson, when I use the word information, I'm talking about the court document there are, with respect to certain counts, what Utah code refers to as a victim targeting enhancement. That is alleged with respect to Count I. It is alleged with respect to Count II. It is alleged with respect to Count VII.
(02:52:20):
And may I step away just to get my laptop?
Judge (02:52:27):
You may.
Richard Novak (02:52:28):
Thank you. And as the court knows, but I want the record to be clear, when I refer to what the information calls the victim targeting enhancement, that's Utah Code Section 76-3- 203.14, which the code calls the victim targeting penalty enhancement. The information alleges, and this is, I'm emphasizing this, that Mr. Robinson intentionally selected Mr. Kirk because of Mr. Robinson's belief or perception regarding Mr. Kirk's political expression. And I'm going to focus, if I may, the court's attention on two things. One is whose state of mind are we talking about, or whose state of mind is the statute talking about, and what aspect of the victim targeting enhancement is being invoked here?
(02:53:59):
The latter is the State invoking Mr. Kirk's political expression, and now I'm quoting the statute as "the personal attribute that the State alleges is the gateway to this penalty enhancement." And if the court will bear with me because there's a reason why we have these hearings in public. There are various categories for alleging ... I should say there are various categories of personal attributes, that's the phrase the legislature uses, which authorize the pursuit of a penalty enhancement. And those personal attributes are listed in the statute A through R. I'm not going to read all of them because the court knows the law, but political expression is subsection K.
(02:55:05):
That is separate and distinct from the personal attribute that the legislature calls religion, which is subsection M. So what we have is an allegation that the personal attribute, which is one of the elements of this enhancement, the allegation that Mr. Robinson selected Mr. Kirk was based on his political expression. That's actually the exact same word phrase, political expression, as is in the statute subsection K.
(02:55:52):
Subsection ... I'm sorry. The 1102 statement is predominantly about what Mr. Engelhardt describes as traditional Orthodox Christian values that he believes in, that he believes Mr. Kirk believed in. And I understand in today's world that there is a crossover between religion and politics. I think we can all acknowledge that, but the legislature and the information here are focused on political expression. So I'm concerned that the 1102 statement of Mr. Engelhardt goes far beyond the scope of what would be admissible, if the State has it, to prove that Mr. Robinson targeted Mr. Kirk because of Mr. Robinson's belief or perception concerning Mr. Kirk's political expression.
(02:57:05):
The second element of this is that the victim target enhancement focuses on the allegation of what is in Mr. Robinson's state of mind, not what is in Mr. Kirk's views or deeply held beliefs, sincere religious beliefs. And so the evidence that the State needs to present is not what Mr. Kirk believed or said or what TPUSA stood for. It's what was in Mr. Robinson's head, if anything, about selecting Mr. Kirk because of Mr. Kirk's political expression, because that's the information. So why TPUSA exists, what its founding beliefs are, what its leader's beliefs are, what Mr. Engelhardt believes Christianity is or is not, is not relevant. And that's why we think it should not be received into evidence.
(02:58:14):
There's a second level here, which is Mr. Engelhardt's statements about what is in the Bible, specifically Matthew 9. And so I would just ask this court the hypothetical question. If the State asked the court to take judicial notice of a portion of the Bible in order to prove this enhancement, because I can't see where else it fits into this case, I think if I may, the answer would be no, it's not relevant. So instead, what we have is the State trying to use the affidavit of Mr. Engelhardt pursuant to 1102 to get the court to essentially receive into evidence the same information. It doesn't really matter here in this proceeding what the Book of Matthew says.
(02:59:17):
It doesn't matter what Mr. Engelhardt thinks. And again, I say this with all due respect to Mr. Engelhardt, who I've never met, the Book of Matthew means, for how one reconciles the book of Matthew as he sees it with other views on the topics that are there. I mean, I want to be careful and not suggest what other views are because I shouldn't be testifying about different perspectives within the sort of the heading of religion. But it doesn't really matter for this proceeding what Mr. Engelhardt's views are, what Mr. Kirk's religious views were, what religious views TPUSA endorses, seeks to encourage others to adopt. None of that really matters.
(03:00:27):
There are multiple opinions in this 1102 from Mr. Engelhardt, and it's not clear whether the state has thought about whether it's expert opinion or lay opinion. I happen to think that it's expert opinion that is not helpful to the trier of fact in this proceeding. That's Your Honor. There is nothing in this that helps the court resolve, with respect to the victim targeting enhancement, whether Mr. Robinson intentionally selected Mr. Kirk because of Mr. Robinson's beliefs or perceptions regarding Mr. Kirk's political expression.
(03:01:08):
If the State comes back up here and says, "No, it's lay opinion," We still have the question of whether it's helpful to this court because the court has to decide whether there is evidence of the target enhancement in the way I think I've structured it. So it's not relevant. It's not admissible lay opinion. It's not admissible expert opinion.
(03:01:38):
There are two aspects of Rule 403, one of which I'm prepared to talk about publicly and one of which I think is appropriately discussed at sidebar because it does get into undue prejudice. The 403 here is that receiving this document into evidence is going to create confusion. It's going to create chaos, not by the trier of fact, but by the future jury pool in this case. For this court to make a ruling that Mr. Engelhardt's opinions about religion, about TPUSA's views on religious matters, that Mr. Kirk's views on religious matters are in any way what this case is about is going to create significant confusion. And even if this court doesn't show the 1102 in open court, or the reporters who are here don't get to see it, or if the public doesn't get to see it, receiving it into evidence in light of the victim targeting enhancement that the state drafted and charged is just going to create confusion. There may be outside of this case, litigation where TPUSA's purposes and its mission and its adherence to its mission are important, and Mr. Engelhardt's opinions about that may be important in some other context in litigation, in public discussions. It's not important here. And when I say important, I'm saying it's not relevant. So there's a 403 issue with respect to confusion. There's a constitutional concern that this type of evidence being sanctioned by the court is going to suggest to the jury pool that this is a case about religion.
(03:03:55):
This is not a case about religion. The State doesn't even allege this is a case about religion. The State alleges one enhancement based on Mr. Robinson's perceptions of Mr. Kirk's political expression. So I'm very concerned that this document even being sanctioned by the court as admissible for any purpose in this proceeding is going to interfere with Mr. Robinson's constitutional right to a fair trial, which I think is sort of an umbrella over parts of Rule 403.
(03:04:38):
If there is a trial, if Mr. Robinson is bound over and if there is a trial, and if the state wants to proffer Mr. Engelhardt for some specific evidentiary purpose that I'm missing, then we can engage in that. But it seems to me that it's, again, a mixture of lay and expert opinion, which at this stage is more prejudicial than probative.
(03:05:11):
The other part of the 403 issue we can discuss at sidebar whenever the court's ready.
Judge (03:05:19):
Thank you, Mr. Novak.
(03:05:21):
Turning to the State. And so just to give an overview, what I'm intending to do is address what Mr. Novak has presented, that the State respond. I may have some questions limited to what's been presented now. Of course, that doesn't preclude addressing the second portion of that in whatever means is necessary to protect constitutional rights, but we're just focused on this portion right now.
Richard Novak (03:05:50):
Understood.
Judge (03:05:51):
Thank you. Mr. McBride.
Mr. McBride (03:05:56):
Your Honor, the evidence is relevant to two points. One is to the defendant's motive, which is not an element of the offense, but nonetheless, is powerful evidence and persuasive evidence. And two, it is relevant to the victim targeting enhancement which has been described and appears in the information.
(03:06:23):
The statement clarifies what Turning Point USA, what Charlie Kirk's business was. I think as you read this statement, it's clear that Charlie Kirk presented both religious and political arguments and positions in his presentations. And that is what paragraph three says, that he engaged others in debate, discussion of traditional family values, Orthodox Christian views on sexuality, marriage, gender, sex, America's founding principles, political doctrines and so forth. He often spoke specifically, and attempted to persuade attendees to follow a mindset rooted in Orthodox Christian and politically conservative values.
Richard Novak (03:07:21):
Excuse me, Your Honor, can I lodge an objection to Mr. McBride reading the exhibit which we are discussing the admissibility of? And I'd ask the court to strike his statements and admonish him.
Judge (03:07:35):
All right. So as it relates to reading from the actual 1102, because it's not admitted into evidence, I will ... Well, before I do that, let me turn to you about the objection to make sure that you are heard as well.
Mr. McBride (03:07:49):
Yes. Rule 104 requires the court to consider evidence before determining its admissibility. How can you determine whether an exhibit is admissible without knowing what is contained in that exhibit? That's what I'm putting in front of Your Honor, is explaining this is why the exhibit is admissible because it contains this language that is relevant and probative. I don't know how I can make an argument something's relevant and probative without saying this is what the exhibit says.
Judge (03:08:18):
Well, Mr. Novak, and I want to make sure you're ... I do see you have a microphone. Go ahead.
Richard Novak (03:08:27):
Your Honor is not a jury. Your Honor can look at the exhibit and determine for itself whether it's relevant, whether it meets other criteria for admissibility. It's not necessary for Mr. McBride to read aloud in open court an exhibit which the court has available to it. I'm not saying that the court shouldn't read it. I'm saying that it's not admissible.
Judge (03:08:53):
Okay.
Richard Novak (03:08:56):
I understand that the court has two roles, one under 104 and one as the magistrate, but that doesn't require Mr. McBride to read in open court the exhibit which we are discussing the admissibility of, especially where I have just expressed our concern that the exhibit has a tendency to confuse the issues in this case and create fair trial risks for Mr. Robinson.
Judge (03:09:27):
All right. Thank you, Mr. Novak. Any final thoughts before I rule on this specific issue about reading from the 1102 by Mr. McBride?
Mr. McBride (03:09:36):
Yes, Your Honor. I have to be able to argue here. I have to be able to refer to the exhibits. I can't do my job as an attorney without being able to refer to the exhibits. If the court doesn't want this to be in public, then we've got to close this proceeding. But I have to be able to argue the exhibits. I don't know how I can make an argument without actually pointing to the language of the exhibits unless I want to say, "You know what I mean?" Or referring to Line 13. It's just so cumbersome to do, Your Honor.
(03:10:02):
And I think my job and my duty to my client, which is the state of Utah, and to their right to fairness, requires me to make a good and powerful argument, and that requires me to refer to the exhibit. And I'll submit it with that.
Judge (03:10:18):
All right. Thank you to both of you in looking at this. Typically, in court when evidence is being taken, until it's admitted, it doesn't come in. For example, if there's a witness on the stand, and one is trying to get a piece of evidence in, that witness cannot read from the document prior to it being admitted into evidence. And so the court applies that same principle here. However, the difference is, and noting Mr. Novak was drawing points from this specifically, he mentioned Matthew, I believe chapter 19, and talking about certain points in here specifically. There is room for it to be mentioned in argument in order for the court to fully consider what's before it.
(03:11:11):
So I'm going to sustain Mr. Novak's objection, and simply say if you want to talk about it conceptually, talk about the points, you certainly may. But simply reading from it exactly, saying ... and I understand. I don't want it to constrain either party from being able to make their full argument, but quoting from it in open court I fear does risk issues to the constitutional rights of the parties.
(03:11:41):
If the parties prefer to go into a closed evidentiary hearing on this issue in order to be unrestrained, and it appears Mr. Novak has requested that for a second portion of his argument, we certainly can do so. Because I do not want to put out evidence that is not admitted in open court until the appropriate time, until the court has gone through its decision-making process on whether it should be admitted or not.
(03:12:11):
So to the parties, if you feel you can move forward on this first portion of it, I'm happy to entertain that argument. If the parties feel at this point, at this juncture, that a closed evidentiary hearing is needed in order to fully explore all the issues, I will leave it to the parties. Because I don't know your arguments and I don't want to say, constrain you from saying ... Well, I don't know what you're going to say, but I can't read your minds, and the court will stay in its lane to ensure that it's in the proper judicial role.
(03:12:44):
So the objection has been sustained. To Mr. McBride, in regards to your response, the rebuttal to the argument by Mr. Novak, what is your request?
Mr. McBride (03:12:55):
Yes, Your Honor. I do not believe it's necessary to close this hearing. I would argue against closing the hearing on the admissibility of this exhibit. However, the court needs to rule on that issue before I launch into the fullness of my argument because I do not want to be admonished for discussing an item that I'm asking to be admitted into evidence in public. So I would ask the court to make a ruling on the closure of the argument about the admissibility of this hearing so that I can make that argument unconstrained. And after that time, if the court rules on that, I will make my full argument.
Judge (03:13:32):
All right. Well, what I'm trying to do is ... you've heard the reasoning of the court. I don't want to constrain you. If you're saying, as you stated, that you want to best represent your client, and every attorney should be doing that, that is your duty. If you feel that closing this hearing to the public is necessary in order for you to fulfill your duty, the court will entertain that. But I can't have it both ways. If you want me to close the hearing in order for you to be able to argue freely as you feel you need to, I will entertain that. But I don't want to say, "Well, I'm not going to close the hearing." And then suddenly the issue is, "Well, I wasn't able to make a full argument." And so do you need a closed hearing to make a full argument to best represent your client?
Mr. McBride (03:14:23):
I think defense counsel is asking to close the hearing so that the argument can be made without the public seeing it. I do not want to close the hearing. I do not believe it's necessary to close the hearing. That's not my motion. I do, however, want to make a full argument that requires me to rely on the evidence and quote the evidence as I have done. That's my position. If I am not permitted to quote the evidence in my argument, then we need to decide whether or not this hearing should be closed. I would oppose closing it, but I do think it's necessary for me to quote the evidence.
Judge (03:14:53):
All right. Are you able to make your full argument to the best of your ability to best represent your client by simply referring to the paragraphs and to the lines so it is clear to the court what you're talking about? There's no ambiguity without quoting it verbatim in open court.
Mr. McBride (03:15:24):
No, I don't think so.
Judge (03:15:25):
All right.
David Ryman (03:15:28):
Your Honor, if you're going to make this closure ruling, I'd like to be heard before you do.
Judge (03:15:33):
All right. I'll hear from you as well. If you would like to come forward again, Mr. Ryman, just stating your full name for the record, for the clarity of the record.
David Ryman (03:15:42):
Sure. Thank you, Your Honor. David Ryman again for the news media. We have briefed this issue a couple different times so far. Sometimes there is a misconception that I think is running particularly through what Mr. Novak argued that suppression hearings, because the evidence may be suppressed or excluded or in limine hearings need to be closed unless the evidence is deemed admissible. That is the opposite of the law.
(03:16:09):
That has been settled since the United States Supreme Court decided Waller v. Georgia. You can see it in Kern's Tribune, which dealt with a preliminary hearing, can access to a preliminary hearing where, as you know, and as we've heard repeatedly today, all kinds of evidence is presented at the preliminary hearing that may not be admissible at trial. And so the universe of the public's right of access to proceedings is not limited just to what eventually gets admitted at trial, which if there even is a trial.
(03:16:45):
And that's been ... We've cited the court to numerous cases on this, and I don't have the brief in front of me and the docket is huge. I can find it for you if you'd like. But I just wanted to correct the misimpression that the public is not entitled to hear argument and to see evidence just because it may not be admissible. Otherwise, we would never have admissibility arguments in public. And I do want to just ... I'll just make one other point. Kern's Tribune also speaks to this. And that is that if you do decide that there's a ...
(03:17:22):
And so let me just make two quick points. To the 403 point, just because evidence isn't admissible is not a basis to close the hearing. There may be a 403 argument. I haven't seen this document. I don't know what's in it. Maybe there is something incredibly prejudicial. You would have to make that decision. I'm at a loss. I haven't seen it. I'm happy to take a look at it and give you substantive argument, but it's the same high constitutional standard that you have to satisfy in order to close it.
(03:17:54):
And then the last thing is just on the scope of any closure. Kern's Tribune speaks, and I know the court is aware of this. If you are going to close it, it needs to be as minimal as possible. And it's my experience, at least, that most of the argument about things in this context can occur in open court. And if you want to have a closed session or a sidebar or however you have to, also done it in chambers, I just ask that it be as limited as possible. Thank you.
Judge (03:18:25):
Thank you. All right, Mr. Novak, would you like to respond to that before? And then I'll return to Mr. McBride for any final thoughts, and the court will make its ruling.
Richard Novak (03:18:37):
Well, I just wanted to mention the Utah Supreme Court decision in State versus Archuleta 857 P.2d 234 where this state's Supreme Court reminds us that the First Amendment right of access is qualified, and that what needs to be carefully judged in light of the qualified right of access with respect to preliminary hearing exhibits, that was the issue in State v. Archuleta, is the defendant's right to a fair trial.
(03:19:17):
So we are in this slightly Twilight Zone situation where counsel for the media is saying even if the court has decided that the exhibits are not going to be made available for copying and inspection, and the court may decide that this exhibit is either not admissible or admissible for the court's eyes only. Counsel for the media is counseling that the court permit Mr. McBride to read the exhibit verbatim in open court. And that basically defeats all of those principles.
(03:19:59):
So I don't think that's the correct path. Counsel for the media is correct that the court's sealing or closure should be narrowly tailored. And the 403 issue, which we are prepared only to discuss because of the sequencing of things in this case. In this proceeding we're only prepared to discuss at sidebar has to do with potential future evidence that the court may receive in this hearing, or it may not. So I'm not going to address other 403 issues in open court.
(03:20:38):
If the court wants to defer this entire exhibit and discussion of it until later in the proceeding, then it may be that that part of the 403 argument doesn't need to be at sidebar. And I think we're all assuming that sidebar proceedings in this preliminary hearing are going to be part of the sealed transcript until some later point in time. In other words, it's not sidebar just for the moment, it's because the transcript's going to be sealed.
(03:21:07):
So it very well may be that taking this issue up at a later point in time in this proceeding eliminates the need, from our perspective, for that 403 issue to be discussed at sidebar or what counsel for the media says in a closed proceeding. However, I agree with the court that Mr. McBride can't have his cake and eat it too. If he wants to make his argument, and he thinks that his argument requires that he read an exhibit in court, which we in good faith are saying is not admissible, then we need to have a closed proceeding. I'm not asking for a closed proceeding. I was asking the court to caution Mr. McBride not to read into evidence exhibits that are not received into evidence because that's the same as Mr. McBride testifying.
Judge (03:21:56):
All right. Thank you. Anything further, Mr. McBride?
Mr. McBride (03:22:06):
Just to note, I have not made my full argument on admissibility. That's all.
Judge (03:22:12):
All right. All right. I appreciate the arguments by the parties. This is clearly something that's very important to you all and is important for this case, as every piece of potential evidence. I note that Mr. Novak indicated that receiving this could create confusion for future potential jurors, and that he mentioned that it could suggest to a potential jury pool that this case is about religion.
(03:22:51):
However, what is happening at a preliminary hearing is far different than what happens at a jury trial. The magistrate, myself, is the fact- finder, and whether something becomes admissible at trial is far different than what is admissible at a preliminary hearing. The purposes are different. The standards are different, and different steps need to be followed. Something could become admissible at a jury trial, but given the nature of a jury trial, more steps are necessary.
(03:23:26):
Under rule 1102, one of the major differences is that reliable hearsay is allowed in a preliminary hearing under the Utah Constitution and under the Rules of Evidence 1102. That is far different than what would happen at a jury trial. Taking this into consideration, I look to the information, going to the very beginning, whether this is relevant. And as noted by counsel, looking to Count I, which is squarely before the court, to determine probable cause at the end of-
PART 6 OF 14 ENDS [03:24:04]
Judge (03:24:03):
... rarely before the court to determine probable cause at the end of this proceeding. And the court is not weighing in whether it will reach that or not. It's not predetermining anything. But what is before this court under count 1, aggravated murder, which is a capital offense, victim-targeting enhancement in violation of Utah Code Annotated 76-3-203.14(2), Tyler James Robinson intentionally selected Charlie Kirk because of Tyler James Robinson's belief or perception regarding Charlie Kirk's political expression.
(03:24:41):
And so if that was not here, this enhancement and it also goes to count 2, felony discharge of a firearm causing serious bodily injury... And I'm just reviewing. And then finally count 7, violent offense committed in the presence of a child where the victim targeting enhancement also is in play. Because that is part of the information that's squarely before the court, this becomes relevant.
(03:25:21):
Now trying to determine what is political expression versus religious expression, that goes into different grounds. But at this point, the court finds it is relevant for consideration and, for the very least, for argument. What the court is going to rule is that the need for a closed hearing is not been met at this point because what needs to be shown is prejudice or that the exhibit contains inflammatory information that would prejudice the jury pool. That begins the path where we can consider closing the hearing from the public. However, that's not what's before the court nor has the court heard that.
(03:26:07):
And so the ruling of the court is previously I sustained Mr. Novak's objection and the court will expound upon that, that Mr. McBride's argument cannot read the entirety of state's exhibit 5.1. Can he reference points of it and specifically "certain points" the court rules that he can just as Mr. Novak pulled from this. And it was broad, but he quoted Matthew chapter 19. He stated that this came from the Bible. He talked about going from paragraph 1 where he quoted or at least drew from about the internal revenue service and the type of business. And so there is grounds for that to occur in order for the court to consider the argument fully in making the determination whether it is relevant and should be admissible. Therefore, the court rules that Mr. McBride can continue in his arguments in order that the court can make its determination whether state's exhibit 5.1 is admissible or not.
Mr. McBride (03:27:23):
Thank you. 5.1 is a general explanation of what Turning Point USA, Charlie Kirk's organization, is and was on September 10th. The exhibit describes the events that Turning Point USA holds, talking about at least 200 plus of these events featuring Charlie Kirk as a headline speaker taking place by that time. That's in paragraph 3. That these events discussed political issues as well as religious issues. Most political issues in the portion I previously quoted talked about gender issues in particular, gender sexuality issues, or the Christian and political view regarding marriage and families and a gender identity. And that information is relevant to the motive that we are alleging in this case. And it's also relevant to the victim targeting enhancement, which is in part a motive type enhancement.
(03:28:39):
And the evidence will be introduced through... Or we will offer evidence through other witnesses that talks about some of the defendant's statements that indicate his gender persuasion and that he falls into some of these political and gender views that Charlie Kirk argued against. That's the relevance of this statement, is it shows Charlie Kirk publicly in front of large gatherings of people debated and presented his views, his political views, which were tied to his religious views about gender identity, LGBTQ rights type issues. And the relevance to that is the defendant's motive is that he was on the other side of those views. And you'll see evidence that talks about that through other witnesses. It talks about that being the inference and the motive that he had or the inference from that evidence supports that motive which supports the victim targeting enhancement and frankly motive in general which goes to identity.
(03:29:56):
For that reason, Your Honor, this exhibit is relevant. I don't see the prejudicial effect, unfair prejudicial effect this would have on the fact finder. Whether or not it has some capability of prejudicing the potential jury pool, I think that's a completely different question. I don't think it does. I think this case has already highlighted the political issues that we're talking about here. But my job here is to present this case to the court, to you, Your Honor, for you to make a decision. This evidence is admissible for that purpose. Whether or not it's published for the public to see is a different question, which I'll submit the media is very capably represented and I'll let them make the argument on that point. But I would ask the court to admit this exhibit.
Judge (03:30:59):
Mr. Novak?
Richard Novak (03:31:06):
Thank you, Your Honor. For the state to argue that this exhibit says anything about Mr. Robinson's state of mind should be rejected out of hand. This exhibit does not say anything about Mr. Robinson's state of mind. And that's what motive is, and that's what the victim targeting enhancement adopted by the legislature focuses on, is the defendant's perception.
(03:31:35):
If Mr. McBride wants to propose significant redactions to this exhibit so that Your Honor acting as a magistrate can consider things that are narrowly tailored to what the information alleges, which is the allegation is that Mr. Robinson perceived that Mr. Kirk had certain political views, that's one thing. But this document talks.. And now Mr. McBride, not to be colloquial, has sort of thrown down the gauntlet. This document talks about foreign affairs, political doctrines, America's founding principles, cultural trends, and what MR. Engelhardt refers to as Orthodox Christian views on sexuality, marriage and gender/sex. So this document goes way beyond what the state just flagged for the entire world is their view of Mr. Robinson's motive, which has something to do with gender identity, gender ideology, and sexuality. That's what Mr. McBride has just said this case is all about.
(03:33:11):
This document goes way beyond that and that's why it's not admissible. There may, as I said, be other evidence which Mr. McBride and the state want to rely upon, which they haven't presented yet, and Mr. McBride hinted at that. So I think that it's not admissible at this point in time. I don't think it's relevant in the sense of has a tendency to make a fact of consequence more or less true. That's the definition of relevance. So how does this court go from what the state has to establish, which is motive or Mr... Well, actually the state doesn't have to establish motive. Motive is not an element of the offense, but at least with respect to the victim enhancement, according to the legislature, the question is what is in Mr. Robinson's state of mind?
(03:34:10):
The other thing I want to say is that Mr. McBride did not address the admissibility of these opinions. Now the court talked about 1102, but 1102 doesn't resolve all of the other rules of evidence. It's just a gateway for an affidavit. So what we have in this document are what I think are purport to be untested expert opinions or at least lay opinions. And the question under the rules of evidence is whether this document is helpful to the court when it makes a determination about whether Mr. Robinson perceived that Mr. Kirk had certain political views.
(03:34:56):
So where is the evidence in this document that Mr. Robinson was aware of Mr. Kirk's political views? Where is the evidence in this document that Mr. Robinson had disagreement with Mr. Kirk's political expression? None of that appears in this document. There may be other evidence of that we'll have to see, but there's nothing in this document which connects up with Mr. Robinson's state of mind, which is the question in the enhancement.
(03:35:37):
And Mr. Engelhardt cannot of course express any opinion about Mr. Robinson's state of mind because he doesn't know him and because that would be improper opinion evidence under any rule of law.
(03:35:51):
So for a document to be received into evidence that quotes one very narrow piece of religious doctrine and that involves Mr. Engelhardt's interpretation of what that means... I mean Mr. Engelhardt at the top of page 2 is basically telling this court what he thinks chapter 19 means. How could that possibly be admissible in this proceeding? And how could it possibly be admissible for the purpose of this court concluding what Mr. Kirk thought chapter 19 of Matthew means?
(03:36:42):
So it's not relevant. It's improper opinion evidence. It's definitely overbroad in terms of the evidence the state is proffering to prove a very narrow point. And it actually doesn't get to that point, which is what was Mr. Robinson's state of mind.
(03:37:05):
It also doesn't say anything that Mr. Kirk specifically said on September 10th that Mr. Robinson may or may not have heard or anything that Mr. Kirk said before September 10th specifically that Mr. Robinson may or may not have heard, nor has the state presented any evidence. And as an officer of the court, I would say I don't think the state can present any evidence that Mr. Robinson specifically heard Mr. Kirk say a specific thing at a specific time. There are some statements which I think that the state will say are admissions by Mr. Robinson, which reference Mr. Kirk, which we will get to later. But none of those reference specific statements by Mr. Robinson, about specific statements by Mr. Kirk on any specific issue that would even make a piece of this relevant.
(03:38:09):
So I'm pretty sure that I've reached that point where anything more I say, I'm going to be repeating myself. And so I'm just going to stop unless the court has questions.
Judge (03:38:19):
I don't. Thank you. Well, I do have a question. As it relates to political expressions, does religion or gender intersect with political expressions?
Richard Novak (03:38:38):
I think that's a great question, but probably not a question to be answered by me in this proceeding. That's actually a really, really complicated question that the state wants the court to say is a simple yes.
Judge (03:39:02):
Okay. All right.
Richard Novak (03:39:02):
Because I don't want to be the expert. I mean, the court's basically asking me to testify... I'm not trying to be flippant. The court is asking me to testify about where religion and politics intersect. And that's a fascinating question. The question here is whether this document, the way it's presented, the way it was written is admissible under relevance and expert 701, 702 rules of evidence to prove what Mr. McBride says the state... what he acknowledges the state has to prove, which is that Mr. Robinson had a state of mind which was, let's just say, hostile to Mr. Kirk's political expression.
(03:39:58):
I don't think that this court should be deciding based on the record before it, where, if at all, politics and religion intersect. I mean, if the court needs to resolve that issue, then the court also needs to resolve the question of which religious philosophy are we talking about?
Judge (03:40:25):
Well, Mr. Novak, I bring that up because you mentioned it and you said you cited directly to the enhancement. You said political expression. And then you went to the Bible itself. And so it appeared to the court that you put it into play. So I just wanted to get a little bit of guidance from your position. And so that's the reason for the question.
Richard Novak (03:40:44):
No, I totally appreciate the question. I'm not suggesting, Your Honor, that there's a problem with the question. Any question that the court asks is a question that council should take seriously. The legislature separates in the statute religion and political expression. The state selected the victim targeting enhancement based on political expression only. Now the state wants to bring... I didn't bring Matthew in. The state is bringing Matthew in through Mr. Engelhardt.
Judge (03:41:17):
Sure.
Richard Novak (03:41:18):
I didn't bring the Bible to this courtroom. The state brought it. And that concerns me greatly because the state is turning this into a question of whether Mr. Robinson's views, identity, life are anti-Christian. And that's a huge problem. And the state has created that problem. This hearing is being broadcast to the entire jury pool. And that's what Mr. McBride just did, is he turned this case into whether Mr. Robinson's life is inconsistent with what Mr. Engelhardt calls Orthodox Christian views.
(03:42:07):
I'm going to just stop right here because I think the court knows what the problem is.
Judge (03:42:12):
Thank you. All right. Anything further before the court makes its ruling? I appreciate the in-depth argument and the passion behind the argument you are advocating for your clients and I respect that.
Mr. McBride (03:42:26):
Yeah. Your Honor, I'd just say it provides context for the defendant's state of mind.
Judge (03:42:34):
All right. In making this determination, whether it's admissible or not, I'm going to start at the beginning, which is this. This is a preliminary hearing. The purpose is to determine whether the state has established probable cause to believe a crime was committed and that Mr. Robinson committed it. As it relates to this case as I turn to relevance, I turn to the information as previously stated and is this relevant what is before me. And without indicating my decision on probable cause, because I am not at that point, I'm withholding all decision making until all evidence is properly before me, and so in this ruling, it is not indicating either direction that the court is heading. However, the court finds that it is relevant as it relates to the victim targeting enhancement as it relates to Charlie Kirk's political expression. And the court recognizes the argument made by defense in regards to state of mind. And it is because of both arguments that the court finds that the... Well, the court is ruling that it is provisionally admitted into evidence.
(03:43:52):
And at such point when it becomes relevant based off what Mr. Novak has talked about about Mr. Robinson's state of mind about Mr. Kirk's political beliefs, then at that point, whether it is admitted or not into evidence will be decided upon. So as of right now, it is provisionally admitted. Because of that stance, it will not be published to the courtroom or media, but both parties can weigh in on that when this is brought up again and the request for it to be fully admitted is made by either party. Then the court will reexamine whether it should be published at that time to those in the courtroom and to whether that is displayed or filmed by the camera.
(03:44:50):
All right, let us proceed. Well, let us proceed to lunch because it is now 12:40. It seems like a natural place to stop. I believe everyone looks like they need a lunch break. So let's go ahead and break for lunch. Let's come back at 1:15. Well, no. I need to give you a full lunch here. I need to do my lawyer math and see what that would bring us to. So it's 12:40. Let's come back at 1:45 for lunch.
(03:45:24):
All right. Any party need the benefit of the record before we break for lunch?
Richard Novak (03:45:29):
Not from the State, Judge.
Speaker 6 (03:45:29):
No, Your Honor.
Judge (03:45:31):
All right. Court is in recess until 1:45.
Speaker 5 (03:45:32):
All rise.
Speaker 7 (03:58:00):
(silence)
PART 7 OF 14 ENDS [03:58:04]
Judge (04:59:26):
Please be seated. The court is now in session, noting the presence of all counsel and all parties. All right. Mr. McBride, turning to the State.
Mr. McBride (04:59:43):
Yes, Your Honor. Just by way of preview, we are going to call Jen Faumuina, a sergeant with the SBI, but how we're going to proceed is we're going to call her for a very limited purpose. We're going to pause her testimony. Defense is not going to cross at that time, and we're going to call an FBI DNA analyst out of order. It's a defense witness, but that's to accommodate that witness's schedule. The State calls Sergeant Jen Faumuina.
Judge (05:00:12):
Like to come forward and be sworn in.
Ms. Nestor (05:00:18):
Please raise your [inaudible 05:00:28]. Do you solemnly swear that the testimony you're about to give now before the court will be the truth, the whole truth, and nothing but the truth, so help you God?
Jennifer Faumuina (05:00:32):
Yes.
Judge (05:00:43):
All right. After you're situated, there should be a bottle of water to your left, maybe behind the monitor. And if you wouldn't mind just bringing that microphone just a little bit closer to you so it picks up your voice for the recording. Mr. McBride, your witness.
Mr. McBride (05:01:01):
Will you please state your name?
Jennifer Faumuina (05:01:02):
Yes. Jennifer Faumuina.
Mr. McBride (05:01:04):
Where do you work?
Jennifer Faumuina (05:01:05):
I work for the Utah Department of Public Safety.
Mr. McBride (05:01:07):
What position do you hold there?
Jennifer Faumuina (05:01:08):
I'm currently a sergeant within the State Bureau of Investigation.
Mr. McBride (05:01:12):
What was your assignment September 10th, 2025?
Jennifer Faumuina (05:01:16):
I was assigned to oversee the crime scenes as well as the physical evidence.
Mr. McBride (05:01:20):
And were you a sergeant with the State Bureau of Investigation at that time as well?
Jennifer Faumuina (05:01:24):
Yes.
Mr. McBride (05:01:26):
And do you have any kind of specialty in your assignment there?
Jennifer Faumuina (05:01:29):
Yes, I do. I am currently overseeing, or I am the team lead over our Evidence Response Team within our division. That includes not only conducting training, but also attending training and whatnot.
Mr. McBride (05:01:44):
Okay. So if we hear ERT, it means Evidence Response Team?
Jennifer Faumuina (05:01:49):
Yes.
Mr. McBride (05:01:50):
Were you called to the crime scene at Utah Valley University on September 10th of 2025?
Jennifer Faumuina (05:01:57):
Yes, I was.
Mr. McBride (05:01:59):
And were there multiple multiple scenes that you oversaw or helped to process?
Jennifer Faumuina (05:02:03):
Yes.
Mr. McBride (05:02:04):
We've had some testimony about the rooftop of the Losee Center. Are you aware of evidence that was collected in that area?
Jennifer Faumuina (05:02:14):
Yes, I am.
Mr. McBride (05:02:16):
Was there a screwdriver that was collected from that rooftop?
Jennifer Faumuina (05:02:19):
Yes.
Mr. McBride (05:02:20):
And do you know how that was collected and what happened to that screwdriver?
Jennifer Faumuina (05:02:25):
Yes, that was collected by the Utah Bureau of Forensic Services Crime Scene Response Team, or also known as our State Crime Lab.
Mr. McBride (05:02:32):
And do you know what happened to that?
Jennifer Faumuina (05:02:34):
Yes, it was packaged. And then that evening, there was discussion on who would take custody of the evidence and I was there, along with FBI. Then it was decided that FBI would take custody.
Mr. McBride (05:02:46):
And did that evidence actually go to the FBI?
Jennifer Faumuina (05:02:48):
Yes, it did.
Mr. McBride (05:02:49):
And was it sent for testing?
Jennifer Faumuina (05:02:50):
Yes, it was.
Mr. McBride (05:02:51):
Where was it sent? Do you know?
Jennifer Faumuina (05:02:55):
It was sent back to, I guess, their equivalent of our crime lab.
Mr. McBride (05:02:58):
Okay. Are there other areas there at Utah Valley University that were also processed for the presence of evidence?
Jennifer Faumuina (05:03:08):
Yes, there was.
Mr. McBride (05:03:09):
Is there a wooded area that's northeast of campus?
Jennifer Faumuina (05:03:12):
Yes.
Mr. McBride (05:03:14):
What was found in that wooded area?
Jennifer Faumuina (05:03:16):
What was found there was a long gun that was wrapped in a dark-colored towel.
Mr. McBride (05:03:22):
And you say a long gun. What does that mean, a long gun?
Jennifer Faumuina (05:03:26):
Sorry. That would be a rifle. So to be more specific, it was a Mauser 98 rifle.
Mr. McBride (05:03:35):
Do you know what caliber that was?
Jennifer Faumuina (05:03:36):
It was a drove-headed to a .30-06 barrel.
Mr. McBride (05:03:41):
And do you know what kind of action that had? Was that a semi-automatic? Automatic? Bolt action?
Jennifer Faumuina (05:03:46):
It was a bolt action.
Mr. McBride (05:03:47):
What is a bolt action rifle?
Jennifer Faumuina (05:03:50):
I'm not too familiar with guns, but I just know there's a bolt and you have to pull it back.
Mr. McBride (05:03:55):
Okay. And what was done with that weapon and that towel?
Jennifer Faumuina (05:04:02):
That was documented in place, and then eventually pictures were taken... Sorry. It was documented in place. And then afterwards, we rendered that gun safe and then packaged the gun, as well as the towel.
Mr. McBride (05:04:16):
What was done with the towel after it was packaged?
Jennifer Faumuina (05:04:18):
The towel was also provided to the FBI.
Mr. McBride (05:04:22):
And those two items... Well, let me tie up that thread. The gun, what was done with the gun?
Jennifer Faumuina (05:04:30):
The gun was packaged. It was taken to FBI custody. Then eventually, it was provided to the ATF lab.
Mr. McBride (05:04:38):
Okay. So the gun went to the ATF lab. Is that correct?
Jennifer Faumuina (05:04:41):
Yes.
Mr. McBride (05:04:42):
The towel went to the FBI lab?
Jennifer Faumuina (05:04:44):
Yes.
Mr. McBride (05:04:45):
And the screwdriver went to the FBI lab?
Jennifer Faumuina (05:04:48):
Yes.
Mr. McBride (05:04:49):
Did you receive reports back from testing that had been done on those items?
Jennifer Faumuina (05:04:53):
Yes, I did.
Mr. McBride (05:04:54):
I'd like to show you State's Exhibit 31. Are you done? I think that's connected to the Defense computer right now. Is there any way to switch it? Thank you. Okay. I'm showing you here on the screen State's Exhibit 31. Do you recognize that?
Jennifer Faumuina (05:05:48):
Yes, I do.
Mr. McBride (05:05:49):
What is that?
Jennifer Faumuina (05:05:50):
This is the FBI report that was provided to me by the FBI that documents DNA testing.
Mr. McBride (05:05:58):
And does that include testing that was done on the screwdriver that we've spoken about...
PART 8 OF 14 ENDS [05:06:04]
Mr. McBride (05:06:03):
That was done on the screwdriver that we've spoken about and the towel that we have spoken about?
Jennifer Faumuina (05:06:06):
Yes, it does.
Mr. McBride (05:06:07):
Okay. What I'd like you to do, Kimberly, if you'd please just scroll down so that Sergeant Faumuina can observe this exhibit? If I can have just a moment? [inaudible 05:06:36] And can you see who that report is signed by?
Jennifer Faumuina (05:07:08):
Yes.
Mr. McBride (05:07:09):
Who's that?
Jennifer Faumuina (05:07:10):
Amanda Bakker, I'm assuming is how you pronounce her last name.
Mr. McBride (05:07:15):
Is that, in fact, the report that you received documenting the testing results on these items and some other items-
Jennifer Faumuina (05:07:21):
Yes.
Mr. McBride (05:07:21):
... from the FBI?
Jennifer Faumuina (05:07:22):
Sorry, yes.
Mr. McBride (05:07:23):
And does it appear to be in an accurate condition as to how you received it?
Jennifer Faumuina (05:07:27):
Yes.
Mr. McBride (05:07:28):
I'd move the admission of State's Exhibit 31.
Judge (05:07:32):
Defense?
Michael Burt (05:07:36):
No additional objections, Your Honor.
Judge (05:07:36):
All right. And so I'll note the standing objection.
(05:07:39):
And as it relates to admission, what is your request as to publication?
Mr. McBride (05:07:45):
I'd move this admission and this publication both to the court and to the public.
Judge (05:07:49):
All right.
(05:07:52):
Anything further, Mr. Burt?
Michael Burt (05:07:53):
No.
Judge (05:07:53):
All right. The court will admit State's Exhibit 31 into evidence and allow publication of this exhibit to the gallery and to the monitor on-screen in the courtroom and for the camera to broadcast.
Mr. McBride (05:08:16):
Okay. If you'll go to, and Kimberly, if you'll scroll down to, still on page one, where the screen will show Items 7 and 8?
(05:08:26):
Sergeant Faumuina, do you see the lines there that say Item 7? That line?
Jennifer Faumuina (05:08:31):
Yes.
Mr. McBride (05:08:32):
And will you read that portion of the report that describes what Item 7 is?
Jennifer Faumuina (05:08:38):
"Item 7, Towel from around Mauser or rifle, Serial Number 8863."
Mr. McBride (05:08:45):
And there's also some other identification numbers. Is that the towel that you found with the rifle that day?
Jennifer Faumuina (05:08:51):
Yes, it is.
Mr. McBride (05:08:52):
On September 10th?
Jennifer Faumuina (05:08:53):
Yes.
Mr. McBride (05:08:54):
Item 8, will you read what that says, is the description of Item 8?
Jennifer Faumuina (05:08:58):
"Item 8, Screwdriver from perch."
Mr. McBride (05:09:01):
And is that the screwdriver that you described that was collected from the rooftop?
Jennifer Faumuina (05:09:05):
Yes.
Mr. McBride (05:09:07):
Okay. If we can go to Page 3 of 6, please? Item 7, sub 1, will you please read the result there from the title, Item 7, until the word "contributors"?
Michael Burt (05:09:36):
I'm going to object to that. It's cumulative. We have the analyst here, who can describe [inaudible 05:09:35]. I'm not sure it assists the court to be having her read from a report that's already in evidence.
Judge (05:09:43):
And would you mind repeat that, but with the microphone? I want to make sure that the record picks up your objection.
Speaker 8 (05:09:47):
[inaudible 05:09:50]
Judge (05:09:54):
All right, either way. If you want to come up, that's fine, Mr. Burt.
Michael Burt (05:09:56):
Judge, the objection is that her reading to the court what's in the report is cumulative, since we have the analyst here who will be testifying to what the report says and what it means.
(05:10:07):
So you've got the report in evidence. We don't need this witness's reading the report to the court. So it's a 403 cumulative objection.
Judge (05:10:18):
Sure. Mr. McBride, do you wish to respond?
Mr. McBride (05:10:21):
My point is only to draw your attention, Your Honor, to the relevant results that will be discussed by the other expert, as well as the results of the items we've discussed, the towel and the screwdriver. That's all.
Judge (05:10:37):
All right. The court will overrule the objection and allow a brief overview of it, not going line by line, page by page. So if it is brief, I'll allow that.
Mr. McBride (05:10:49):
Thank you. So if you'll read Item 7.1 to the word contributors at the top of that page, if you will?
Jennifer Faumuina (05:10:57):
Yes. "Male DNA was obtained from Item 7, sub 1. Item 7, sub 1 was interpreted as originating from two individuals, one of whom is Twiggs. The DNA results from Item 7, sub 1 and what are 1.7 octillion times more likely if Twiggs and T. Robinson are contributors than if Twiggs and an unknown, unrelated person are contributors."
Mr. McBride (05:11:21):
Thank you.
(05:11:22):
Let's skip down to Item 8.1. Do you see that bolded and underlined-
Jennifer Faumuina (05:11:26):
Yep.
Mr. McBride (05:11:27):
... line there?
Jennifer Faumuina (05:11:27):
Yes.
Mr. McBride (05:11:28):
And this is relating to swabs of the handle area of the screwdriver? Is that right?
Jennifer Faumuina (05:11:34):
Yes.
Mr. McBride (05:11:35):
Will you read those same two paragraphs there, "Male DNA" ending with "contributors?"
Jennifer Faumuina (05:11:41):
"Male DNA was obtained from Item 8, sub 1. Item 8, sub 1 was interpreted as originating from two individuals, one of whom is Twiggs. The DNA results from Item 8, sub 1 are 30 quintillion times more likely if Twiggs and T. Robinson are contributors, than if Twiggs and an unknown, unrelated person are contributors."
Mr. McBride (05:12:02):
Okay. Thank you.
(05:12:04):
A couple of foundational questions before we finish for now. First off, do you know who Twiggs is?
Jennifer Faumuina (05:12:10):
Yes.
Mr. McBride (05:12:11):
Who is Twiggs?
Jennifer Faumuina (05:12:12):
Twiggs is Lance Twiggs. He was a roommate of Mr. Tyler Robinson.
Mr. McBride (05:12:18):
And do you know if Lance Twiggs' DNA was obtained for comparison in this test?
Jennifer Faumuina (05:12:26):
Yes, it was.
Mr. McBride (05:12:27):
And how was that DNA obtained?
Jennifer Faumuina (05:12:30):
It was obtained by law enforcement officers.
Mr. McBride (05:12:32):
And was that by a buccal swab?
Jennifer Faumuina (05:12:34):
Yes.
Mr. McBride (05:12:35):
What is a buccal swab?
Jennifer Faumuina (05:12:36):
A buccal swab is basically like a Q-tip or a swab that we'll just place in someone's mouth and just scrub the inside of their mouth to obtain the cells.
Mr. McBride (05:12:46):
And then that Q-tip is then packaged and sent to the lab for testing in comparison?
Jennifer Faumuina (05:12:51):
Yes.
Mr. McBride (05:12:52):
And was the defendant, Tyler Robinson's DNA, also collected in the same manner?
Jennifer Faumuina (05:12:56):
Yes, it was.
Mr. McBride (05:12:57):
Okay. Thank you. Nothing else.
Judge (05:13:01):
All right. Mr. Burt, cross-examination?
Michael Burt (05:13:04):
Your Honor, I'd like to reserve the right to cross-examine after the witness completes her testimony after the following witness.
Judge (05:13:10):
Oh, would you mind grabbing the microphone? I just want to make sure what you say is on the record.
Michael Burt (05:13:21):
With the court's permission, I'd like to reserve the right to cross-examine on the area she testified about until she has completed her testimony.
Judge (05:13:30):
Okay, I see what you're saying.
(05:13:32):
Any input, Mr. McBride?
Mr. McBride (05:13:34):
[inaudible 05:13:35]
Michael Burt (05:13:34):
[inaudible 05:13:35]
Judge (05:13:34):
All right.
Mr. McBride (05:13:42):
Your Honor, that's what we expected to happen.
Judge (05:13:43):
Okay.
Mr. McBride (05:13:43):
We've discussed this beforehand. We stipulate.
Judge (05:13:46):
All right. That's fine. And so should I have the sergeant step down or...
Michael Burt (05:13:52):
Yes.
Judge (05:13:53):
Okay. Sergeant, if you'd like to step down, you're still under oath, and so please don't discuss your testimony with anyone.
(05:13:59):
And is she being asked to exit the courtroom, or what's the request of the party?
Michael Burt (05:14:05):
Yes, to exit the courtroom at this time.
Judge (05:14:06):
Okay. All right, Agent, if you wouldn't mind exiting the courtroom, and then we'll come get you when we're ready for you. All right?
Michael Burt (05:14:11):
Thank you.
Judge (05:14:12):
Thank you.
(05:14:16):
All right, Mr. Burt, turning to you.
Michael Burt (05:14:18):
Your Honor, out of order, the defense would be calling Amanda Bakker.
Judge (05:14:22):
All right. Ms. Bakker? All right, Ms. Bakker, if you wouldn't mind coming forward right up here by the bailiff and being sworn in?
Michael Burt (05:14:41):
[inaudible 05:14:43]
Speaker 8 (05:14:41):
[inaudible 05:14:45]
Ms. Nestor (05:14:52):
You do solemnly swear that the testimony you shall give in the case now pending before the court will be the truth, the whole truth, and nothing but the truth, so help you God?
Ms. Bakker (05:14:59):
Yes, I do.
Judge (05:15:00):
All right, Ms. Bakker, if you wouldn't mind being seated at the witness stand? Once you're situated, there should be a water bottle for you, if you'd like, behind the monitor.
(05:15:10):
And after you're seated, if you wouldn't mind just pulling that microphone close to you so it picks up your voice, okay?
Ms. Bakker (05:15:16):
Okay.
Judge (05:15:18):
Mr. Burt, your witness.
Michael Burt (05:15:19):
Your Honor, we're going to need the monitor switched over to our side, if we could?
Judge (05:15:23):
Okay.
Michael Burt (05:15:27):
While we're doing that, good afternoon.
Ms. Bakker (05:15:28):
Good afternoon.
Michael Burt (05:15:29):
Tell us your name, please.
Ms. Bakker (05:15:30):
Hi. Good afternoon. My name is Amanda Bakker. My last name is spelled B-A-K-K-E-R.
Michael Burt (05:15:36):
And Ms. Bakker, what do you do for a living?
Ms. Bakker (05:15:38):
I am a forensic examiner in the DNA Casework Unit of the FBI laboratory located in Quantico, Virginia.
Michael Burt (05:15:45):
And how long have you been a DNA analyst at that location?
Ms. Bakker (05:15:50):
A little more than 10 years.
Michael Burt (05:15:52):
And just in general, what are your duties?
Ms. Bakker (05:15:54):
My duties are to manage a case. When a case comes into DNA Casework Unit, I will review any information associated with that case. I will review any evidence that is submitted for that case, determine which items of evidence need to be tested and which tests need to be performed.
(05:16:11):
I will then create something called an exam plan. You can think of this like a to-do list to let the biologist know which items I need tested.
(05:16:19):
Once that testing is complete, I will review all the data, draw conclusions in the form of a report, and then testify, if needed.
Michael Burt (05:16:29):
Ms. Bakker, in this case, were you requested by the state of Utah to do certain testing?
Ms. Bakker (05:16:35):
Yes, I was.
Michael Burt (05:16:37):
And when were you called upon to do that testing?
Ms. Bakker (05:16:40):
That was September of 2025.
Michael Burt (05:16:44):
And do you recall when the case first came into your lab?
Ms. Bakker (05:16:48):
I believe we received evidence the first time was September 11th of 2025.
Michael Burt (05:16:53):
And just in general, when the FBI, your unit receives evidence for analysis, is it true that the turnaround time is about 200 days?
Ms. Bakker (05:17:05):
It depends. We've wavered between 90 days and over 200 days. I would say, on average, it's somewhere between 180 and 200 days.
Michael Burt (05:17:14):
However, did this case come in on what's called the Priority 1 Level?
Ms. Bakker (05:17:20):
Yes, it did. And what that means is we worked 24 hours a day, seven days a week until examinations were complete.
Michael Burt (05:17:27):
And is it true that you were conducting the analysis as the evidence was being inventoried?
Ms. Bakker (05:17:34):
That is true. Because of the high profile nature of this case, an item of evidence would be submitted to the lab. It would be inventoried by our Evidence Management Group and then sent to the various units for testing, for example, the DNA Casework Unit. We would begin testing as additional evidence was being delivered to the FBI lab.
Michael Burt (05:17:55):
Now, as a result of your analysis, do you produce case files?
Ms. Bakker (05:17:59):
Yes, I do.
Michael Burt (05:18:00):
And document your examination in other ways?
Ms. Bakker (05:18:03):
Yes.
Michael Burt (05:18:03):
Do you have your case file with you?
Ms. Bakker (05:18:05):
Yes, I do.
Michael Burt (05:18:05):
Okay. And in your case file, are there notes of conversations that you have with people that are relevant to your testing?
Ms. Bakker (05:18:16):
Yes. That's called our communication log.
Michael Burt (05:18:19):
Now, do you have your case file there in front of you?
Ms. Bakker (05:18:23):
Yes, I do.
Michael Burt (05:18:24):
I think the pages are numbered, so I'll ask you to go to Page 22 of your case file notes.
Ms. Bakker (05:18:43):
Okay.
Michael Burt (05:18:45):
And if I could direct your attention to the bottom of that page, there is a communication log entry dated September 13th. Do you see what I'm referring to?
Ms. Bakker (05:18:56):
Yes, I do.
Michael Burt (05:18:58):
And would you read to the court what your entry is for that date?
Ms. Bakker (05:19:02):
Yes. This is my communication date, excuse me, communication entry on September 13th, 2025. "Spoke with FBI Special Agent Folger and Utah SBI SA Dave Hull. Gave technically reviewed results that Robinson was included as a possible contributor to the DNA from the towel and the screwdriver. We discussed the additional examinations conducted by DCU, and they both agreed that no additional immediate comparisons are needed at this time. All remaining comparisons will be in the laboratory report."
Michael Burt (05:19:38):
Is that an accurate reflection of what you told the agents at that time?
Ms. Bakker (05:19:42):
Yes, it is.
Michael Burt (05:19:44):
And you told them that, quote, "Robinson was included as a possible contributor to the DNA from the towel and the screwdriver," correct?
Ms. Bakker (05:19:53):
Yes.
Michael Burt (05:19:53):
Was the language that you used in conformity with requirements that you have for reporting out test results?
Ms. Bakker (05:20:00):
Yes.
Michael Burt (05:20:01):
All right. I'd now like to direct your attention, if I could, to exhibit number, State's Exhibit 31, which is in evidence. I think it's our Tab 2. And that's in evidence, so if you could display that on the screen?
Judge (05:20:26):
And Mr. Burt, are you requesting it to be displayed to just your screens or to all screens?
Michael Burt (05:20:30):
No. Since it's in evidence, Your Honor, I'd like it displayed to the public.
Judge (05:20:34):
Okay. Let's go ahead and put it on the main monitor as well.
Michael Burt (05:20:44):
Okay. Could you go to Page 6, please? And highlight the third paragraph? This is your report dated September 15th, 2025, correct?
Ms. Bakker (05:21:08):
Yes, that is correct.
Michael Burt (05:21:09):
So this is two days after you had the conversation with the agents as to what your results were.
Ms. Bakker (05:21:14):
That is correct, yes.
Michael Burt (05:21:16):
And in your report that you wrote two days later, you included this language that's highlighted there, correct?
Ms. Bakker (05:21:22):
That is correct.
Michael Burt (05:21:24):
This report conforms to the Department of Justice Uniform Language for Testimony and Reports for Forensic DNA Examinations, correct?
Ms. Bakker (05:21:35):
Yes.
Michael Burt (05:21:35):
Okay. Now I'd like you, if you could, to take a look at that standard that you referenced, and then I believe is at... And this will be just to the witness, not to the public.
Judge (05:21:53):
Okay.
Michael Burt (05:21:56):
Calling up Tab 7, do you see that on your screen?
Ms. Bakker (05:22:04):
Yes, I do.
Michael Burt (05:22:05):
Do you recognize this document?
Ms. Bakker (05:22:08):
Yes, I do.
Michael Burt (05:22:09):
And tell the court what this is.
Ms. Bakker (05:22:10):
This document is the Approved Standards for Scientific Testimony and Reports for Autosomal DNA Testing.
Michael Burt (05:22:19):
And is this the document that you were referencing in your report?
Ms. Bakker (05:22:23):
One of them, yes.
Michael Burt (05:22:24):
And is it a true and accurate statement of what the policy of the FBI is in regard to reporting DNA in a case of this type?
Ms. Bakker (05:22:32):
Yes.
Michael Burt (05:22:33):
I move that document into evidence, Your Honor.
Judge (05:22:36):
So is it just this page or all the pages? Because it says one of six.
Michael Burt (05:22:42):
Yes. So this would be the entire document.
Judge (05:22:44):
All right. Mr. McBride?
Mr. McBride (05:22:45):
Your Honor, I don't see the relevance of this document. I object on relevance grounds.
Judge (05:22:54):
Mr. Burt?
Michael Burt (05:22:55):
Your Honor, the document is referenced in a report, and it defines the parameters of what her opinion means. So I think it's very important for the court to understand the limitations of the opinions being expressed.
Judge (05:23:09):
And just for my understanding, when you say in her report, are you referring to State's Exhibit 31?
Michael Burt (05:23:14):
That's correct.
Judge (05:23:15):
All right. Mr. McBride, any further thoughts?
Mr. McBride (05:23:17):
No, I'll submit it.
Judge (05:23:18):
All right. So State's Exhibit... Well, I'm sorry. How am I labeling this exhibit for the defense?
Michael Burt (05:23:25):
Your Honor, we have our exhibits organized by witness-
Judge (05:23:29):
Okay.
Michael Burt (05:23:30):
... and we would be submitting to the court electronic copies of these under Named Witnesses. So this would be Bakker 7.
Judge (05:23:41):
All right. Defense Exhibit Bakker 7 is admitted into evidence.
(05:23:46):
And as it relates to publication, what is your request, Mr. Burt?
Michael Burt (05:23:50):
Your Honor, I would ask that this be published since the report is published, and this is important to understanding the limitations of the report.
Judge (05:23:58):
And so published in the courtroom and on the monitor for the meeting?
Michael Burt (05:24:01):
Yes.
Judge (05:24:02):
Okay.
Michael Burt (05:24:02):
Correct.
Judge (05:24:03):
Any thoughts, Mr. McBride?
Mr. McBride (05:24:07):
No objection.
Judge (05:24:08):
All right. It will be admitted and published both in the courtroom and on the monitor for the video camera.
Michael Burt (05:24:25):
Okay. So this document has various subjects, correct?
Ms. Bakker (05:24:29):
That is correct, yes.
Michael Burt (05:24:30):
And in the beginning, tells you how to frame your testimony in terms of inclusions or exclusions, mixtures, sex determination, et cetera?
Ms. Bakker (05:24:42):
Correct, yes.
Michael Burt (05:24:43):
And then there's a section called Statements Not Approved for FBI Autosomal DNA Testimony in Our Laboratory Reports.
Ms. Bakker (05:24:54):
That is correct, yes.
Michael Burt (05:24:55):
Okay. So if we could go to Page 5 for that statement? Okay.
(05:25:15):
Under the topic, Absolute Identification, is it the policy of the FBI when you're reporting out results that an examiner may not state or imply that a match provides an absolute identification of the individual from whom the biological material originated?
Ms. Bakker (05:25:35):
That is correct.
Michael Burt (05:25:36):
And you were following that policy in this case when you told the investigators that this was a possible match, correct?
Ms. Bakker (05:25:43):
That is correct, yes.
Michael Burt (05:25:44):
You never said it was an absolute identification of Mr. Robinson, did you?
Ms. Bakker (05:25:48):
Correct. No, I did not.
Michael Burt (05:25:49):
Now, the second guidance under that policy is, "An examiner shall not use the expressions 'reasonable degree of scientific certainty,' 'reasonable scientific certainty,' or similar assertions of reasonable certainty in either reports or testimony, unless required to do so by a judge or applicable law."
(05:26:13):
You're not, in your report, did not use any language that suggest you were giving an opinion to a reasonable degree of scientific certainty.
Ms. Bakker (05:26:23):
That is correct. I was not.
Michael Burt (05:26:27):
Okay. And then the next one, not that one, one more down. I'm not going to talk about race, ethnicity. That doesn't apply to this case, right?
(05:26:39):
But 5.4 says, "An examiner may not state or imply that forensic autosomal DNA examinations have a zero error rate or are infallible."
Ms. Bakker (05:26:53):
That is correct.
Michael Burt (05:26:54):
And you followed that policy in this case, correct?
Ms. Bakker (05:26:56):
Yes, I did.
Michael Burt (05:26:57):
You're not, in your report, stating to the court that your testing has a zero error rate, correct?
Ms. Bakker (05:27:04):
Correct.
Michael Burt (05:27:05):
You're not stating that the test is infallible.
Ms. Bakker (05:27:08):
I am not, no.
Michael Burt (05:27:09):
What is the source of error rates in DNA testing?
Ms. Bakker (05:27:12):
[inaudible 05:27:13]
Michael Burt (05:27:12):
Can you take that down?
Ms. Bakker (05:27:15):
Can you clarify your question?
Michael Burt (05:27:16):
Yeah. When it refers to, "Don't state that there is a zero error rate," what in general are the sources of error in the kind of DNA testing that you do?
Ms. Bakker (05:27:29):
Human error could be an error.
Michael Burt (05:27:34):
Anything else?
Ms. Bakker (05:27:39):
Not that I can think of off the top of my head. One of the big things is potential human error.
(05:27:44):
I guess you could also associate the DNA testing itself and how items are collected or how those items are tested.
Michael Burt (05:27:55):
Now, to your knowledge, that policy statement that we just read in Exhibit 7, Bakker 7 was based on a more general Department of Justice policy, correct?
Ms. Bakker (05:28:08):
Correct, yes.
Michael Burt (05:28:09):
And that policy is called the Department of Justice Uniform Language for Testimony and Reports for Forensic Autosomal DNA Examinations Using Probabilistic Genotyping Systems, correct?
Ms. Bakker (05:28:23):
That is correct, yes.
Michael Burt (05:28:24):
And could you display 8 for us, please, to the witness?
Speaker 8 (05:28:27):
[inaudible 05:28:35]
Michael Burt (05:28:39):
Let me know when it's on.
Speaker 8 (05:28:39):
[inaudible 05:28:40] on the big screen.
Michael Burt (05:28:41):
No, not on the big screen.
Speaker 8 (05:28:42):
[inaudible 05:28:43]
Judge (05:28:43):
Okay. So not to go onto this main big screen. Thank you.
Michael Burt (05:28:46):
Correct. This is just for the witness.
(05:28:49):
And you're familiar with that policy, correct?
Ms. Bakker (05:28:51):
Yes, I am.
Michael Burt (05:28:52):
Okay. And does it contain a statement that, "Support for inclusion is an examiner's conclusion that there is evidentiary support for the inclusion of a known individual as a possible contributor to the DNA typing results obtained from an evidentiary sample?"
Ms. Bakker (05:29:20):
I believe it does, yes.
Michael Burt (05:29:21):
And did you follow that procedure in this case?
Ms. Bakker (05:29:24):
Yes, I did.
Michael Burt (05:29:25):
All right. Does this same policy state at Page 4, fourth down? One more. No, next one. Does a policy state, "An examiner shall not assert that a likelihood ratio of any magnitude provides an absolute identification or source attribution of an individual to an evidentiary sample?"
Ms. Bakker (05:30:11):
That is correct. Yes, it does state that.
Michael Burt (05:30:14):
And you followed that procedure in this case, did you not?
Ms. Bakker (05:30:16):
Yes, I did.
Michael Burt (05:30:17):
You're not implying that those numbers, that a previous witness quoted and are stated in your report, provides an absolute identification of Mr. Robinson or Mr. Twiggs?
Ms. Bakker (05:30:29):
No, I'm not.
Michael Burt (05:30:30):
Okay. Thank you. Can you take that down?
(05:30:38):
Are you also familiar with a concept called formal activity level?
Ms. Bakker (05:30:43):
Yes, I am.
Michael Burt (05:30:43):
Tell the court what that is.
Ms. Bakker (05:30:45):
Formal activity level is determining an activity that causes DNA to be left behind on an object.
Michael Burt (05:30:55):
And does your laboratory have a policy about whether you can express opinions about formal activity level?
Ms. Bakker (05:31:04):
We do have a policy, and I cannot give an opinion as far as activity level goes.
Michael Burt (05:31:10):
And why is that?
Ms. Bakker (05:31:13):
That is because DNA can be left behind on an object for numerous different reasons. So just because DNA is on an item doesn't necessarily mean that an individual touched it or utilized that item. So because of that, we do not opine on what activity may have occurred.
Michael Burt (05:31:33):
And consistent with that policy, you cannot tell... If you interpret a piece of DNA as being present on an item, you can't tell when that DNA was deposited, correct?
Ms. Bakker (05:31:44):
I can't give an exact time, but there are some situations.
(05:31:49):
If a piece of evidence has been buried for a long time or is in a river for a long time, it would be my expectation, based on my experience, that I probably won't get DNA off of an item that's been buried for 10 years, for example. However, I cannot give exact timing as to when DNA was deposited on an item.
Michael Burt (05:32:06):
And I was talking more about a situation where you actually find DNA on an object, be it a gun or anything else. You can't say when that DNA was deposited, correct?
Ms. Bakker (05:32:18):
Sure, that's correct.
Michael Burt (05:32:21):
And how long in general does the DNA persist on an item once you've made contact? How does DNA get deposited on an item in general?
Ms. Bakker (05:32:33):
In general, DNA can be deposited a few different ways, by a body fluid, such as saliva or blood or skin cells. So touching an item or wearing an item, DNA could be deposited.
(05:32:46):
Once DNA is on an item, if it's subjected to ideal conditions, it's out of heat and high UV, it's not subjected to any kind of cleaning or chemicals, it can persist on an item rather indefinitely. It can degrade solely over time, but we've certainly worked items of evidence that are 40 and 50 years old, and we've been able to recover DNA.
Michael Burt (05:33:09):
Now, could you explain to the court the concept of degradation of DNA samples, what that means and what it suggests with your testing?
Ms. Bakker (05:33:18):
Sure. So degradation of DNA is breaking up the DNA. So if you think of DNA like a long rope, it's essentially taking that rope and cutting it up into pieces.
(05:33:29):
Seeing degradation in a sample could lend me to believe that there may be, that that sample may have been subjected to cleaning or high heat an extended period of time.
(05:33:42):
So really, I can't tell why an item is degraded, but looking at my data, I can tell if that sample is potentially degraded or broken down.
Michael Burt (05:33:52):
And two of the items that you examined were referred to as Items 7 and 8, correct?
Ms. Bakker (05:33:59):
That is correct, yes.
Michael Burt (05:34:00):
One was a towel and one was a screwdriver.
Ms. Bakker (05:34:03):
That is correct, yes.
Michael Burt (05:34:04):
Were both those samples degraded to a certain extent?
Ms. Bakker (05:34:09):
May I refer to my-
Michael Burt (05:34:11):
Certainly.
Ms. Bakker (05:34:11):
... my data? So Item 8 was the screwdriver from the perch. I would say that there was some degradation as I look at the DNA peaks or the DNA data. In an ideal world, if there's no degradation, I would expect all the peaks to be at the same height. Here, I see a ski slope-type effect, meaning that the data on the left is a little bit taller than the data on the right.
(05:34:57):
As far as Item 7, Item 7 was the tau. There was slight amount of degradation, but not as much as Item 8.
Michael Burt (05:35:17):
Okay. And what is the effect of degradation on production of the... First of all, what's an allele?
Ms. Bakker (05:35:27):
An allele is an individual's DNA type. So we inherit half of our DNA from our mom and half of our DNA from our dad.
(05:35:34):
We're looking at something called short tandem repeats, or STRs. These are small segments of DNA that repeat themselves over and over again. We all have those same sections of DNA, but what might differ amongst us is how many times it repeats. And that's actually what we inherit from our parents.
(05:35:52):
So for example, at one particular location, my mom may give me 14 repeats, and my dad may give me 15. So when I'm looking at the DNA types, I would say that I have two alleles at that location, a 14 and a 15.
(05:36:06):
As far as degradation goes, it could cause some of those alleles to do something called dropout, meaning when I'm looking at the DNA chart or the DNA data, I do not see information. I do not obtain numbers at that particular section of DNA.
Michael Burt (05:36:22):
And is it true that in the testing that you were doing in this case, STR testing, what you were looking at is the length of the what I'll call... Have you ever heard the boxcar analogy?
Ms. Bakker (05:36:36):
I have, yes.
Michael Burt (05:36:36):
Tell the court what that is.
Ms. Bakker (05:36:38):
So the boxcar analogy is how many times that section of DNA repeats. So that section is essentially letters so, for example, ACTG. So you may have ACTG repeated 10 times or 12 times. Each of those sections of ACTG would be considered one boxcar.
Michael Burt (05:37:00):
And so when you're looking for alleles, you're essentially counting the boxcars. Could be seven boxcars and that person would be a seven?
Ms. Bakker (05:37:10):
That is correct, yes.
Michael Burt (05:37:11):
And from the mom and from the dad, he may have inherited 10 boxcars?
Ms. Bakker (05:37:17):
That is correct, yes.
Michael Burt (05:37:18):
And so that person at that particular location would be a 7 and 10?
Ms. Bakker (05:37:23):
Yes.
Michael Burt (05:37:23):
And what you're doing in your testing is comparing those numbers to what you get from a known sample to see if they match.
Ms. Bakker (05:37:31):
That is correct, yes.
Michael Burt (05:37:32):
Is that true?
Ms. Bakker (05:37:34):
Yes.
Michael Burt (05:37:34):
Now is it true that what you're... You mentioned the A, C, T and G, correct?
Ms. Bakker (05:37:38):
Correct, yes.
Michael Burt (05:37:40):
Is it true that you are not measuring the sequence within the boxcars? You're just measuring the length of the boxcars?
Ms. Bakker (05:37:48):
That is correct. So the sequence would be equivalent to letters in a word. What I'm looking at is the number of words versus the letters that make up that word.
Michael Burt (05:37:59):
And we'll talk about this a little later, but people can vary not only in the length of the boxcars, but in the sequence within the boxcars, right?
Ms. Bakker (05:38:07):
That is correct, yes.
Michael Burt (05:38:09):
And what you're testing looks at is just the length?
Ms. Bakker (05:38:12):
Correct, yes.
Michael Burt (05:38:13):
Okay. And is it also true that you're looking across many different locations?
Ms. Bakker (05:38:24):
Yes. So at the FBI laboratory, we use a kit called GlobalFiler. And this is looking at 21 different locations on a human's DNA, in addition to three sex determining locations. That lets me know if an individual is biologically a male or a female.
Michael Burt (05:38:42):
As between two individuals, 99% of their DNA is exactly the same, right?
Ms. Bakker (05:38:48):
That is correct, and that makes sense. We're all humans. We all have arms, legs and a head. Less than 1% of our DNA is what... it differs amongst us with the exception of identical twins.
Michael Burt (05:38:59):
But within that 1%, you're looking at these length differences, correct?
Ms. Bakker (05:39:05):
Correct, yes.
Michael Burt (05:39:05):
And you're looking at what you called short tandem repeats?
Ms. Bakker (05:39:09):
Yes.
Michael Burt (05:39:10):
You said you looked at 25 locations?
Ms. Bakker (05:39:13):
We're looking at 21 and three sex type determining, so 24 total.
Michael Burt (05:39:19):
What are the sex determining? They're called the locus, correct?
Ms. Bakker (05:39:23):
Correct. So locus is that individual section of DNA.
Michael Burt (05:39:27):
All right. And they typically have names or numbers associated with them, correct?
Ms. Bakker (05:39:32):
Yes, they do.
Michael Burt (05:39:33):
So what are the sex determining loci?
Ms. Bakker (05:39:37):
So there is amelogenin and that lets me know if an individual is male or female.
(05:39:44):
And then there's two specific male sex determining locations. One is Y indel, and one is DYS385. Those just let me know that those are specific to male individuals.
Michael Burt (05:39:57):
Okay. And then for the other locations you're looking at, those you're just look-
PART 9 OF 14 ENDS [05:40:04]
Michael Burt (05:40:02):
The locations you're looking at, those... You're just looking for two types at each location, correct?
Ms. Bakker (05:40:06):
Correct, yes.
Michael Burt (05:40:10):
For the samples that you looked at, the 7A and the 8A, did you get what's called a full profile, would be a profile where you have all 23 locations present?
Ms. Bakker (05:40:26):
That is correct. A full profile means I have DNA at every single location. It is above our threshold and I'm seeing one or two pieces of information at each location. For item seven, I did develop a full profile.
Michael Burt (05:40:46):
For item eight, you developed a full profile?
Ms. Bakker (05:40:56):
Item eight was a partial profile, so I did not develop DNA at every single location.
Michael Burt (05:41:03):
What that means in your comparisons is you have certain information in the question sample that for whatever reason doesn't appear. Correct?
Ms. Bakker (05:41:12):
Correct, yes.
Michael Burt (05:41:12):
So, you can't make a comparison at those locations?
Ms. Bakker (05:41:15):
That is correct.
Michael Burt (05:41:16):
What makes it not appear at certain locations?
Ms. Bakker (05:41:20):
It could be that there's degradation, so those larger locations could be broken up so that it wasn't detected during the DNA process. It could be a low level amount of cellular material to begin with, so if I only have a few cells, I may not have enough to detect at every single location.
Michael Burt (05:41:46):
And for the 8-1 sample, did you measure Mr. Robinson and Mr. Twiggs's DNA at the 23 locations?
Ms. Bakker (05:41:59):
For item eight, I did not have a full profile, so I did not have data at all 23 locations to compare it to either Mr. Robinson or Mr. Twiggs.
Michael Burt (05:42:10):
But you had full profiles for Mr. Twiggs and for Mr. Robinson, right?
Ms. Bakker (05:42:15):
For their known sample?
Michael Burt (05:42:15):
Yes.
Ms. Bakker (05:42:17):
Yes. So, for their known sample, that was a sample that was taken directly from those individuals and I did develop a full DNA profile.
Michael Burt (05:42:29):
Just to illustrate how this works, is one of the loci that you looked at called the DYS391 loci?
Ms. Bakker (05:42:40):
Yes, it is.
Michael Burt (05:42:42):
And what type was Mr. Robinson at that loci?
Ms. Bakker (05:43:01):
At that location, Mr. Robinson was an 11.
Michael Burt (05:43:05):
I think you said you inherit one from your mother, one from your father. But when you say he's an 11, technically he's what's called an 11-11, correct?
Ms. Bakker (05:43:16):
DYS391 is actually that male location, so he or anybody would not have inherited anything from their mother. At this location, I would only expect to see one piece of information and I did see an 11 here.
Michael Burt (05:43:32):
And for the D3S-loci, what was his type?
Ms. Bakker (05:43:38):
His type was a 17.
Michael Burt (05:43:40):
For that loci, you'd expect two types, correct?
Ms. Bakker (05:43:44):
That is correct.
Michael Burt (05:43:45):
And when you say he's a 17, do you mean he's actually a 17-17?
Ms. Bakker (05:43:50):
That is correct. He inherited 17 repeats of that location from mom and 17 from dad.
Michael Burt (05:43:56):
Other locations, for instance, the BWA, he's type 18, 19, correct?
Ms. Bakker (05:44:01):
That is correct, yes.
Michael Burt (05:44:02):
So, you're looking at those... And what the machine produces are peaks, correct?
Ms. Bakker (05:44:08):
Correct, yes. They're just spikes on a graph similar to spikes on a heart monitor.
Michael Burt (05:44:13):
And you said for 8A you had certain locations where the test sample didn't have any results?
Ms. Bakker (05:44:22):
That is correct.
Michael Burt (05:44:25):
At the TPOC's location, Mr. Robinson is a type 8, 9, correct?
Ms. Bakker (05:44:33):
That is correct.
Michael Burt (05:44:34):
Mr. Twiggs is a type 8, 11.
Ms. Bakker (05:44:37):
That is correct.
Michael Burt (05:44:39):
But when you looked at the sample 8A, it didn't have any of those types?
Ms. Bakker (05:44:43):
That is correct, so I could not compare at that location.
Michael Burt (05:44:46):
Are there certain rules for when you exclude someone? In other words, when you're comparing two samples, are there rules which say, "Here's where I would conclude that he could not possibly have contributed this sample."?
Ms. Bakker (05:44:58):
Yes.
Michael Burt (05:45:01):
Your field has a lot of literature written about it, correct?
Ms. Bakker (05:45:04):
That is correct, yes.
Michael Burt (05:45:05):
And do you generally like to keep up with that literature?
Ms. Bakker (05:45:08):
I do, yes.
Michael Burt (05:45:10):
Across time, there have been several books, publications that attempt to educate you and courts and lawyers on the technical aspects of DNA testing, right?
Ms. Bakker (05:45:23):
Correct. Yes.
Michael Burt (05:45:25):
One of the books, the early one, DNA Technology in Forensic Science, by the National Resource Council...
Ms. Bakker (05:45:31):
I'm familiar with that, yes.
Michael Burt (05:45:33):
... that's an authoritative book that was really one of the first books on DNA testing?
Ms. Bakker (05:45:38):
Yes.
Michael Burt (05:45:40):
And then by the same organization, National Resource Council, The Evaluation of Forensic DNA Evidence?
Ms. Bakker (05:45:48):
Correct. Yes.
Michael Burt (05:45:48):
Published in 1996. Are you familiar with that as well?
Ms. Bakker (05:45:52):
Yes, I am.
Michael Burt (05:45:53):
And then there's an author, I believe, who did his research work at the FBI named Dr. John Butler.
Ms. Bakker (05:46:04):
Yes, I'm familiar with him.
Michael Burt (05:46:06):
You have studied his work both in your training and your continuing education?
Ms. Bakker (05:46:13):
That is correct, yes.
Michael Burt (05:46:14):
He's got three current textbooks on the topic that we're talking about, right?
Ms. Bakker (05:46:20):
I'm not familiar with how many textbooks he has. I know at least the one.
Michael Burt (05:46:24):
Fundamentals of Forensic DNA Typing.
Ms. Bakker (05:46:27):
Yes.
Michael Burt (05:46:27):
Familiar with that. Forensic DNA Typing Methodology?
Ms. Bakker (05:46:33):
Yes, I'm familiar with that one as well.
Michael Burt (05:46:35):
And Forensic DNA Typing Interpretation?
Ms. Bakker (05:46:38):
Yes.
Michael Burt (05:46:39):
Everybody in your field relies on these publications and use them as teaching tools?
Ms. Bakker (05:46:44):
Yes, I would agree with that.
Michael Burt (05:46:46):
And then in addition to those books, there have been studies that have been done on particular topics, correct?
Ms. Bakker (05:46:54):
Yes.
Michael Burt (05:46:54):
This case, we're dealing with mixtures, correct?
Ms. Bakker (05:46:58):
Yes.
Michael Burt (05:46:59):
And mixtures present certain challenges that are not present when the samples are not mixed, correct?
Ms. Bakker (05:47:06):
Not necessarily. First, to define a mixture, that simply means DNA from more than one individual in a sample. So, if I were to take a sip from a coffee cup and my husband were to also take a sip, if I were to swab that coffee cup, I would get a mixture, his DNA and my DNA together. As far as it being difficult, you can have some mixtures where there's one contributor that donates a lot of DNA and the second contributor donates a little bit. For DNA interpretation, that is not challenging for me.
(05:47:37):
Where it can become challenging is if you have four or five individuals within that sample all donating roughly around the same amount, it may be challenging for me to determine if a person is included or not.
Michael Burt (05:47:51):
And would you also agree that that challenge exists in situations where you have what are called low quantities of DNA?
Ms. Bakker (05:48:02):
Again, that could be possible. I could have low quantities of multiple individuals, which is simply just saying that I can't determine which piece of DNA goes with which individual, so that's possible.
Michael Burt (05:48:15):
What is drop-in?
Ms. Bakker (05:48:17):
Drop-in is where you have environmental DNA that's not inherent to that sample that's detected during our DNA process. DNA testing is very sensitive, so it could be that we have a peak that's detected, like I said, from the environment.
Michael Burt (05:48:36):
And what is dropout?
Ms. Bakker (05:48:37):
Dropout is when you have an allele that is not detected or a piece of DNA information that is not detected. In the DNA chart, there is no number associated with that particular location.
Michael Burt (05:48:51):
Degradation can cause dropout?
Ms. Bakker (05:48:53):
Yes.
Michael Burt (05:48:54):
So, if you have a person at a particular location that is a type 14, 15 and because of degradation that 15 drops out, what you're seeing on your chart is just the 14, right?
Ms. Bakker (05:49:09):
That is possible, yes.
Michael Burt (05:49:11):
And that presents a certain challenge, does it not? Because if the 15 is not there, you could misinterpret that as a type 14, 14, correct?
Ms. Bakker (05:49:19):
Not necessarily. We have thresholds. We have something called the stochastic threshold. If that 14 is above that stochastic threshold, I'm confident based on our validation, our testing and my training that the DNA type there is only a 14. If that 14 falls below that stochastic threshold, that could be indication that there is another peak.
(05:49:46):
So when I'm interpreting, when I'm comparing if that 14 is below threshold and someone is a 14, 15, I will not automatically exclude them.
Michael Burt (05:49:55):
What is stochastic effects?
Ms. Bakker (05:49:58):
Stochastic effect-
Mr. McBride (05:49:59):
I'm going to object at this point. I think we've gone beyond the scope of preliminary hearing. I think this is getting into 702 material that's not necessary for the probable cause determination.
Judge (05:50:09):
All right.
Michael Burt (05:50:09):
I think it-
Judge (05:50:09):
Mr. Burt?
Michael Burt (05:50:10):
I think it goes directly to the reliability of the testing results that the state introduced. I think the court has to understand limitations and potential sources of error in order to assess whether these results are reliable.
Judge (05:50:28):
And in regards to this line of questioning, how far are you going to go on this line of questioning?
Michael Burt (05:50:33):
I have this one question and then I'm moving on.
Judge (05:50:36):
All right. Mr. McBride.
Mr. McBride (05:50:39):
I'll hold him to that.
Judge (05:50:41):
All right. Mr. Burt, so the objection is overruled. You may proceed with that question.
Michael Burt (05:50:48):
You can answer.
Ms. Bakker (05:50:49):
Could you repeat your question, please?
Michael Burt (05:50:50):
Tell the court about stochastic effects.
Ms. Bakker (05:50:54):
Stochastic effects, when you have low level samples, during the DNA copying process, based on how the DNA is copied, you could have alleles that are copied better than other alleles.
Michael Burt (05:51:13):
On another topic, I mentioned studies before. One of the studies that you're familiar with is called the PCAST report. Are you familiar with that report?
Ms. Bakker (05:51:27):
Yes, I am.
Michael Burt (05:51:28):
Tell the court what that is.
Ms. Bakker (05:51:28):
PCAST stands for the President's Council of Advisors on Science and Technology. And this was a committee that was found, I believe, under the Obama administration that gave guidance on different areas of forensics.
Michael Burt (05:51:45):
Including how to deal with mixed samples and how to deal with samples that have low quantity of DNA.
Ms. Bakker (05:51:53):
I don't know that I would agree that it's how to deal with them. They gave some of their concerns on low level samples and mixtures.
Michael Burt (05:52:06):
And they also did a follow-up report to assess whether using the kind of software that you used in this case had been established as reliable, correct?
Ms. Bakker (05:52:15):
That is correct.
Michael Burt (05:52:17):
What was the software that you used in this case to reach your statistical results?
Ms. Bakker (05:52:24):
The software is called STRmix, S-T-R-M-I-X.
Michael Burt (05:52:30):
The PCAST report specifically addresses whether reliability has been established with respect to STRmix, correct?
Ms. Bakker (05:52:40):
I don't believe reliability came into question. I think PCAST thought that there needed to be additional testing as far as mixtures and low level samples go.
Michael Burt (05:52:54):
Mixtures and low level samples that had certain characteristics, right?
Ms. Bakker (05:52:58):
That is correct, yes.
Michael Burt (05:52:59):
Including mixtures where what's called the minor contributor was in the sample below 20%?
Ms. Bakker (05:53:09):
That is correct. The minor contributor would be an individual that donated less DNA to that sample. PCAST called into question mixtures of three or more individuals with that minor or that low level contributor making up 20% or less.
Michael Burt (05:53:27):
Seven and eight samples in this case were both mixtures, correct?
Ms. Bakker (05:53:30):
Yes, that is correct.
Michael Burt (05:53:31):
And did you determine what the proportion of mixture was between what I'll call the major contributor and the minor contributor?
Ms. Bakker (05:53:41):
I did not calculate that personally. Part of the STRmix software, it does a couple different things. One, it takes a mixture and it uses math and biological modeling to try to break that mixture into its individual contributors. And then it also calculates a likelihood ratio, which is the statistic that I report. During that process, it does give an estimate of the breakdown of those potential contributors.
Michael Burt (05:54:09):
First of all, for the seven sample, was the minor in there at less than 20% according to the STRmix?
Ms. Bakker (05:54:24):
Yes, it was. For one of the runs when I compared to Mr. Robinson conditioning on Mr. Twiggs, it was a 5% to 95%.
Michael Burt (05:54:35):
And how about for the other sample?
Ms. Bakker (05:54:50):
For item eight, one of the contributors was 11% and the other was approximately 89%.
Michael Burt (05:54:56):
So, [inaudible 05:54:57]?
Ms. Bakker (05:54:57):
Correct, yes.
Michael Burt (05:54:59):
And the concern expressed in this report, which was written by experts in your field, correct?
Ms. Bakker (05:55:06):
No, that is not correct. The PCAST report was written by individuals that were not practitioners or any type of laboratory personnel.
Michael Burt (05:55:16):
But they list the experts who provided input into that report, do they not?
Ms. Bakker (05:55:20):
Yes, they did.
Michael Burt (05:55:21):
One of them was Bruce Budowle, correct?
Ms. Bakker (05:55:24):
Correct, yes.
Michael Burt (05:55:25):
Who's Bruce Budowle?
Ms. Bakker (05:55:28):
He is a DNA expert within the field.
Michael Burt (05:55:31):
Well, he was the head of your unit for a number of years before you came on board, wasn't he?
Ms. Bakker (05:55:36):
He was, yes.
Michael Burt (05:55:38):
And he's written extensively on forensic DNA testing, has he not?
Ms. Bakker (05:55:41):
He has, yes.
Michael Burt (05:55:43):
The report also lists Eric Gilkerson. Correct?
Ms. Bakker (05:55:49):
I do not recall that name.
Michael Burt (05:55:51):
Forensic examiner for the Federal Bureau of Investigation Laboratory?
Ms. Bakker (05:55:55):
I don't recognize that name.
Michael Burt (05:55:57):
How about Brian McVicker, forensic examiner, Federal Bureau of Investigation?
Mr. McBride (05:56:03):
Objection, Your Honor. I'm going to renew my objection. I think this is beyond the scope of determining probable cause. The standards that apply here are that the court weighs the evidence in the light most favorable to the state and avoids credibility and balancing the evidence at this stage. I think we're far into 702 territory at this point.
Judge (05:56:23):
Mr. Burt.
Michael Burt (05:56:25):
I'm not sure I understand the objection into 702 territory. 702 deals with reliability of evidence. That's what the court is here to determine. So again, it's directly relevant to reliability. This report criticizes for the specific samples she's using here, the reliability of this testing. And her response was, "Oh, but they weren't experts." But the report indicates that there were experts who were consulted on this report, so I think it is relevant and I think it goes to the issue of reliability. And it's the only question I have on this area as well.
Judge (05:57:05):
Anything further, Mr. McBride, or do you wish to respond to that?
Mr. McBride (05:57:10):
Just that 702 deals with admissibility. It does discuss reliability, but it's directly related to admissibility of the testimony at trial under the Utah Constitution. And under the robust case law in this area, the court does not weigh the evidence, draws the inferences in the light most favorable to the state. I think we're beyond that point now getting into the admissibility questions.
Judge (05:57:42):
All right. Anything further, Mr. Burt?
Michael Burt (05:57:44):
No, Your Honor.
Judge (05:57:47):
All right. Well, as this is the last question, I'm going to overrule the objection, but as a reminder to all parties that this is a probable cause standard and as it relates to... Well, I will just leave it at that.
Michael Burt (05:58:05):
Are you familiar with that analyst?
Ms. Bakker (05:58:08):
No, I'm not.
Michael Burt (05:58:10):
Just to close the loop on the PCAST report, what they said in the report was that published evidence supports the foundational validity of probabilistic genotyping with some programs of DNA mixtures of three individuals in which the minor contributor constitutes at least 20% of the intact DNA in the mixture and in which the DNA amount exceeds the minimum required level for the [inaudible 05:58:41]. Isn't that what they concluded?
Ms. Bakker (05:58:45):
That sounds accurate, yes.
Michael Burt (05:58:47):
Do you know why the level 20% raises reliability issues?
Ms. Bakker (05:58:52):
I do not know.
Michael Burt (05:58:58):
But you do know that in this case, both your samples had minor contributors below 20%?
Ms. Bakker (05:59:04):
That is true, but in this case it was also only a mixture of two individuals.
Michael Burt (05:59:10):
That's the next thing I was going to ask you about, which is what is NoC?
Ms. Bakker (05:59:16):
NoC stands for Number of Contributors.
Michael Burt (05:59:20):
And when you use this program, this genotyping program, STRmix, who decides what the number of contributors is?
Ms. Bakker (05:59:30):
That's my determination based on my experience and training looking at the data. That's something I input into STRmix.
Michael Burt (05:59:41):
That's a complex determination, is it not?
Ms. Bakker (05:59:45):
Not necessarily.
Michael Burt (05:59:48):
But it can be in some cases, correct?
Ms. Bakker (05:59:50):
It could be. Again, if there's mixtures of a lot of individuals and a lot of the peak heights, the size of the spikes are relatively the same, it could cause some trouble for me as an examiner.
Michael Burt (06:00:10):
One of the groups that studies your field is the National Institute of Standards and Technology. Correct?
Ms. Bakker (06:00:19):
That is correct, yes.
Michael Burt (06:00:20):
They're in the Department of Commerce?
Ms. Bakker (06:00:22):
I believe so, yes.
Michael Burt (06:00:24):
Federal agency?
Ms. Bakker (06:00:25):
Yes.
Michael Burt (06:00:28):
They published a report in 2024 called Forensic DNA Interpretation and Human Factors: Improving Practice Through a Systems Approach. You're familiar with that publication, right?
Ms. Bakker (06:00:41):
I am, yes.
Michael Burt (06:00:42):
And was that publication written by scientists?
Ms. Bakker (06:00:46):
I don't recall exactly who the authors of that publication were.
Michael Burt (06:00:57):
Just to make sure that the... It's a long report, right?
Ms. Bakker (06:01:19):
Yes, it is.
Michael Burt (06:01:21):
And you've read it?
Ms. Bakker (06:01:23):
I've read highlights of it.
Michael Burt (06:01:24):
Is it true that one of the things that they say in that report is they have a section on the complexity of number of contributor estimations?
Mr. McBride (06:01:38):
Objection.
Michael Burt (06:01:39):
Are you-
Mr. McBride (06:01:41):
Same objection, Your Honor. This is beyond the scope of a preliminary hearing. Again, we're talking about expert reports. We're talking about scientific studies. These materials are all fine to consider at a 702 admissibility hearing. At this stage where, again, the evidence is viewed in the light most favorable to the state, this is unhelpful to the court's determination, therefore irrelevant to this proceeding.
Judge (06:02:08):
Thank you, Mr. McBride. Mr. Burt.
Michael Burt (06:02:11):
Your Honor, I think the report that the state put into evidence as clarified by this witness indicates that she reached the conclusion that Mr. Robinson and Mr. Twiggs were, quote, "possible contributors" to these two samples. One thing the court has to weigh is what is the weight of that opinion given the science or lack thereof?
(06:02:38):
One of the important issues here is how she derived these statistical numbers. As an offer of proof, I'll indicate to the court that the numbers derived from this software program... And that that software program is dependent in large part on how many contributors the analyst puts into the input of the software. And the numbers can change if the number of contributors is changed. In this case, as I'll show through the examination, this examiner originally thought there were three contributors. And I will show to the court why she changed her analysis and will indicate through this publication that there has been criticism of the way in which she determined the number of contributors.
(06:03:37):
So, I think it's important for the court to assess whether you've got accurate numbers in front of you. The state put in these astronomical numbers and are asking the court to give weight to them. And I'm asking the court to consider how those numbers were arrived at and whether there are reliability issues with regard to those numbers.
Judge (06:04:00):
The concern that I have is... I turn to State v. Ramirez 2012 UT 59 at paragraph 10. It states, "Furthermore, the magistrate's role does not encompass an assessment of whether such inference is more plausible than an alternative that cuts in favor of the defense. That is a matter-of-fact finding which is left for the jury at trial."
(06:04:21):
So, when I'm staying in my role as a magistrate, I hear what you're saying, but my concern is based off case law that dictates what I as a magistrate should be doing. If I want to stay in that lane, my fear is as we go down further down this path, which again is not precluding if this were to proceed, if there were a bind over, if there was a trial, that certainly that could be determined. But at this point, at this stage, how do you weigh this issue as I'm weighing State v. Ramirez in deciding whether we're going past the probable cause stage?
Michael Burt (06:05:02):
Sure, and I think the answer to that is we have to take into account the ruling that you made in this case, which is the law of this case, which is when we objected to the hearsay aspect of these DNA reports and other reports, you ruled that you are the ultimate determiner of the reliability of the hearsay evidence being admitted. You will recall that our argument was the statute was unconstitutional because it was dictating that you find certain evidence to be reliable without considering whether it was reliable. Your ruling, as I understood it, was no, you retain the ultimate determination of whether the evidence is reliable. And that's not a credibility issue. It's, is this reliable hearsay that the state is offering?
(06:05:58):
Issues that go to whether these numbers that the state is putting in front of you are reliable, I think go directly to the substance of your ruling, which is that your role here is to determine reliability of evidence. I'm familiar with a case that the court cites, but I think that has more to do with weighing evidence and making credibility assessments, whereas I'm focused on what the court ruled, which is we have to look at reliability here. And that's my job as a magistrate.
Judge (06:06:32):
Mr. McBride, any final thoughts?
Mr. McBride (06:06:35):
Yes. Under Rule 1102(b)(4) the Exhibit 31 is considered reliable hearsay. In addition, credibility determinations are not proper for the court to make here for the whole reason that studies supporting this science, studies opposing this science, testimony from this expert or that expert about what is reliable, what is not, what's more reliable, what's less reliable, factors that affect all those determinations, those are all very, very complex decisions. There will be probably multiple-day hearings dealing with that. And a probable cause determination is just not the place to conduct that kind of thorough, in-depth, and searching analysis, rather the case law, the constitution of Utah that says the only purpose of a preliminary hearing is determining probable cause.
(06:07:34):
The case law, the rules that all say the court does not weigh the evidence at this stage, but leaves that for a finder of fact, the jury in the end, that all supports cutting this line of questioning off at this point rather than going on into greater depth, Your Honor.
Judge (06:07:55):
All right. Based off what's been presented before me, I'm going to sustain in part and deny in part the objection made. I'm going to allow this question to be asked. So, that is denying, but sustained in the sense that this would be the last question. And if Mr. Burt chooses to, may go on to a different subject or a different line of questioning.
Michael Burt (06:08:22):
Sure. Did that NIST report conclude that it remains unclear if visual inspection renders consistent number of contributor estimations across analysts over time?
Ms. Bakker (06:08:38):
Can you repeat that?
Michael Burt (06:08:39):
Yeah. Did the NIST report that you referenced conclude that it remains unclear if visual inspection renders consistent number of contributor estimations across analysts over time?
Ms. Bakker (06:08:58):
I think that goes to the DNA evidence. Again, we never truly know the number of contributors in a forensic sample. Like I mentioned before, you could have DNA mixtures that are made up of two, three, four individuals. I have training, I have experience, I followed standard operating procedures, so I'm making the best determination based on the DNA evidence that I have as far as number of contributors goes.
Michael Burt (06:09:28):
Now if I could, I'd like to return to your case notes. And could you display for the witness page 365 of tab number four? And while he's doing that, by the way, it's true that if you change the number of contributors, you're going to get different numbers from the software program?
Ms. Bakker (06:09:51):
It depends. So actually, each time you run the software, you will get a different number based on the math that the software system does. But there are studies and validations that show we don't expect that math to be greatly different, usually by a factor of 10. Changing the number of contributors, it depends. If you have a major contributor, someone who's made up most of that DNA profile, if I originally interpret something as three, calculated statistic, if that major contributor is the individual that I'm comparing to, if I change the number of contributors to two, based on the studies and based on my own experience, it doesn't change the likelihood ratio of that major contributor by much.
Michael Burt (06:10:37):
But it does change it, correct?
Ms. Bakker (06:10:38):
Yes.
Michael Burt (06:10:39):
And you just said, I think, that even when you put in the same parameters, you don't get the same answer if you run it through STRmix more than once, right?
Ms. Bakker (06:10:49):
That is correct. Based on how STRmix utilizes math and distributions, you will never get the same answer twice, but it will be no more than a magnitude of 10.
Michael Burt (06:11:03):
That test is not reproducible in the sense that you can run a sample or your assumptions in there 10 times, you could get 10 different answers?
Ms. Bakker (06:11:15):
That is true. The first time I run STRmix, I'm not going to get a likelihood ratio of 10 and the second time get 10 quadrillion. I might get 10 quadrillion the first time, two quadrillion the second time. But even if I run it 10 times, I'm still going to get around the same likelihood ratio value.
Michael Burt (06:11:34):
Could you look at tab number four, your case notes at page 365? If you could bring that up for the witness. Let me know when you have that in front of you. I think you need to scroll up one page. There we go. Can you identify this page from your notes?
Ms. Bakker (06:12:05):
Yes, I can. These were notes that my technical reviewer made. My technical reviewer, they will review all of my DNA evidence. They will draw their own conclusions as far as number of contributors and comparisons, then compare it back to my conclusions.
Michael Burt (06:12:23):
This is regarding the seven sample, correct?
Ms. Bakker (06:12:26):
That is correct. That is one of the samples.
Michael Burt (06:12:28):
And your original assessment was that there were three contributors to this sample, right?
Ms. Bakker (06:12:35):
That is correct, yes.
Michael Burt (06:12:35):
And that conclusion was reviewed by a reviewer, correct?
Ms. Bakker (06:12:40):
Correct, yes.
Michael Burt (06:12:41):
She read the same electropherograms, or the name for the output of this technology you used, correct?
Ms. Bakker (06:12:49):
She utilized the same electropherogram, which is the chart that the DNA is on.
Michael Burt (06:12:55):
This page in front of you, is that an accurate representation of your case file?
Ms. Bakker (06:13:00):
Yes, it is.
Michael Burt (06:13:01):
All right, moving to evidence page 365. And that would be Bakker Four.
Judge (06:13:13):
Mr. McBride?
Mr. McBride (06:13:15):
I'll object on relevance grounds.
Judge (06:13:19):
All right. Did you want to respond, Mr. Burt?
Michael Burt (06:13:22):
Your Honor, it's relevant because the witness originally determined that there were three contributors, and I'd like her to explain to the court how she reached that conclusion because I think it does go to the reliability of her testing here.
Judge (06:13:38):
All right. So, as it relates to Bakker Four, and this is her personal notes from Ms. Bakker as it relates to what I'm assuming is State's Exhibit 31, that these notes were prepared as part of the report in State...
PART 10 OF 14 ENDS [06:14:04]
Judge (06:14:03):
... of the report in State's Exhibit 31, I will find that it is relevant and that it is admitted into evidence. As regards to publication, what is the request, Mr. Burt?
Mr. McBride (06:14:14):
Your Honor, if I may clarify, I think the testimony was that this was not her notes, that these were the notes of her technical reviewer, is what I heard.
Judge (06:14:23):
Please correct me if I misheard that, from both sides. I want to make sure-
Mr. McBride (06:14:27):
I did.
Judge (06:14:28):
I want to make sure, are these Ms. Baker's notes?
Michael Burt (06:14:32):
Could I clarify that?
Judge (06:14:33):
Absolutely.
Michael Burt (06:14:36):
Ms. Baker, these are notes in your case file, correct?
Ms. Bakker (06:14:39):
These are notes in my case file, but they're not my notes.
Michael Burt (06:14:42):
And the way your lab works, you're not the one that does all the different steps in the testing process, correct?
Ms. Bakker (06:14:52):
That is correct.
Michael Burt (06:14:54):
Other analysts have input, that then all goes into the case file, which you have access to and rely upon in rendering your opinions.
Ms. Bakker (06:15:06):
That is correct, yes.
Judge (06:15:06):
All right.
Michael Burt (06:15:07):
And this particular page is a note written by your peer reviewer that you relied upon?
Ms. Bakker (06:15:15):
Correct. After I made my interpretations and drew conclusions, my technical reviewer then reviews the data and draws their own conclusions. So this was created after I had already drew my own conclusions.
Judge (06:15:35):
All right. I'm just trying to put it together here. So the question I'm trying to get to, counsel, is was this particular... I recognize it as it being prepared by someone else. But as it relates to State's Exhibit 31, was this relied upon in order for State's Exhibit 31 to be put together as the report? Because I'm trying to determine relevancy as it relates to that. And that's a crucial point I don't have the answer to just yet.
Michael Burt (06:16:15):
Okay. Let me lay a more adequate foundation. The case file notes are assessed by you at every step of the analysis, correct?
Ms. Bakker (06:16:33):
Not necessarily at every step. Before I issue a report, before I write a report, I review all of the case notes. So that will be any communication log entries, any documentation from the laboratory, the biologists that perform the DNA testing. I will review all of that, write a report and then give that to a technical reviewer. They will draw their own conclusions to determine if they agree with me. If they do, they will sign off. And then my report and my case file will go for an administrative review to make sure that the laboratory number is correct on all the pages, that if there's any cross-outs, there's dates and initials and so forth. Those two reviews have to be done before I can actually make it a final report and case file that gets submitted and sent to the field.
Michael Burt (06:17:28):
And in this case, correct me if I'm wrong, but the sequence was you originally determined in seven, sample seven, that there were three contributors. That conclusion got reviewed. Then you ran some further testing and then you change your conclusion, correct?
Ms. Bakker (06:17:46):
That is correct, yes.
Michael Burt (06:17:47):
And before you change your conclusion, you of course go back and look at what the reviewer said about her review.
Ms. Bakker (06:17:54):
We would have a discussion. If I say a number of contributors was three, here she notated that it was two. We had that discussion. She agreed with three. So for that step of that process ... Because again, we're piecemealing this. Typically in a normal case, we will work all of the evidence. I will write a report. For this situation, I had DNA evidence coming to me throughout the day, throughout the night. So I had reviewers at different steps, which is not usual for a case. Usually I have one reviewer. So in this case, at that particular time, I had a reviewer. Then when I was submitted additional known samples and used those for comparisons, then I did have additional conclusions and additional reviewers.
Michael Burt (06:18:41):
But you certainly took into account this notation on this page before you changed your conclusion, correct?
Ms. Bakker (06:18:49):
I don't know that I would agree that I took into account. We had already had that conversation. And again, once I received additional known samples and additional information from the field, I then did amend my conclusion.
Michael Burt (06:19:02):
And these notes are kept in the ordinary course of your business?
Ms. Bakker (06:19:06):
Yes.
Michael Burt (06:19:07):
And they're part of the case file that you rely upon in reaching your conclusions?
Ms. Bakker (06:19:12):
They are kept with the case file after I draw my conclusions.
Michael Burt (06:19:19):
So Your Honor, I think there's a foundation for this. The state has offered all kinds of hearsay here. And certainly there's no question about the reliability of the entries.
Judge (06:19:30):
All right. Anything further from the parties before I weigh in on... Well, make my ruling on Baker 4?
Michael Burt (06:19:39):
No.
Mr. McBride (06:19:40):
No.
Judge (06:19:41):
The court finds that it is relevant. And as it relates to State's Exhibit 31 and Baker 4 is admitted into evidence in regards to publication. Mr. Burt, what is your request?
Michael Burt (06:19:56):
That it be published.
Judge (06:19:57):
All right. In the courtroom?
Michael Burt (06:19:59):
In both the courtroom and to the cameras.
Judge (06:20:03):
All right. Any objection, Mr. McBride?
Mr. McBride (06:20:06):
No.
Judge (06:20:07):
All right. Go ahead and publish that to all screens and may be captured by the media.
Michael Burt (06:20:14):
So these notations at the top there are 71 male discussed three NOC and okay with three. Could you translate that for us, what that means?
Ms. Bakker (06:20:27):
Sure. So when my technical reviewer took a look at the DNA evidence, she determined that male DNA was present and she concluded that she would have called it a number of contributor of two. She compared it to my conclusions. I said number of contributor three. So we had a discussion as to why she thought it was two, why I thought it was three. And she said she agreed with me calling it three based on her discussion.
Michael Burt (06:20:54):
Okay. So was that an extended discussion you had with her or just...
Ms. Bakker (06:21:00):
No, this was a quick discussion. And this is not unusual. We have discussions like this during the technical process quite often.
Michael Burt (06:21:07):
And the stamp on the bottom, approved by Tara Benson, is that the reviewer-
Ms. Bakker (06:21:12):
Yes, it is.
Michael Burt (06:21:12):
... you're talking about? All right, thank you. Now I want to ask you to look at page 128 of that same exhibit. No. Is this an electropherogram that is a part of your case file?
Ms. Bakker (06:21:42):
Yes, it is.
Michael Burt (06:21:43):
And is this an accurate representation of what's depicted on this page?
Ms. Bakker (06:21:51):
I'm sorry. There's nothing on this screen. Am I...
Michael Burt (06:21:55):
128.
Ms. Bakker (06:22:03):
Yes, it is.
Michael Burt (06:22:05):
I move that into evidence, Your Honor. This would be Baker 4, page 128.
Judge (06:22:13):
Oh, I thought I already admitted Baker 4. Is this a different... The previous one was Baker 4 as I understood it.
Michael Burt (06:22:21):
Yeah. Baker 4, page 365.
Judge (06:22:24):
Oh, okay. So Baker-
Michael Burt (06:22:26):
And so this is Baker 4, page 128.
Judge (06:22:32):
Right. So the previous admitted exhibit is Baker 4, 365. The current proposed one is Baker 4, 128.
Michael Burt (06:22:39):
That's correct.
Judge (06:22:39):
All right. Mr. McBride?
Mr. McBride (06:22:41):
If I can have just a minute to update my notes on those page numbers.
Judge (06:22:44):
All right. 365 was the previous one, unless I heard it wrong.
Michael Burt (06:22:52):
Yes, that's right.
Judge (06:22:53):
All right. And the current one is 128.
Mr. McBride (06:23:03):
First, I'll note this is the first I'm seeing these as exhibits. Of course, I have this file, but I was unaware that these are going to be offered as exhibits, so I'm looking to find them in my file as we go. Second, again, I'm going to object on relevance grounds to the probable cause determination. We're going through the finite details of the analysis here. And once again, I think these are appropriate questions to raise in a 702 hearing, but with the standards that apply at the preliminary hearing that I've already discussed, I think we're beyond the scope of probable cause determination as we dive into this evidence.
Judge (06:23:42):
All right. Mr. Burt?
Michael Burt (06:23:44):
Your Honor, I think this exhibit is particularly important because the court does not yet have in front of it what an electropherogram is and how it's interpreted. And this particular page will illustrate to the court how the analyst interpreted the peaks on this electropherogram to reach the conclusions that she reached that there were three and not two contributors. And I think it will assist the court in determining exactly how this comparison process works and what the output looks like so the court can see exactly how the interpretations are being made.
Judge (06:24:23):
And is this the dose that were relied upon in... So I'm viewing State's Exhibit 31 as a summary and this more of showing the work of how the summary was reached. Am I misunderstanding how this fits in?
Michael Burt (06:24:39):
This fits into how the analyst originally was of the opinion that there are three people here and not two. And she will go on to explain how she changed the interpretation from three to two. And the point of this is to illustrate to the court that this is a subjective process to a certain extent and that people can read these things in different ways. And so I think it will help the court understand exactly what's being compared here. You've got peaks on a line, she will say...
(06:25:22):
And just let the court know in response to Mr. McBride's statement that he was unaware that this is going to be an issue. He and I met with this analyst before the preliminary hearing. The analyst pointed this page out to us as being illustrative of why she originally concluded that there were three contributors. So this is not something that's being sprung on the state. He was a part of that conversation. And this particular page was identified by the analyst, not by me. So it is important to understand why we went from three to two and what impact that has on the numbers that the state is offering.
Judge (06:26:10):
All right. Anything further?
Michael Burt (06:26:12):
No.
Judge (06:26:14):
All right. Under Utah Rule of Evidence 1102B4, it says, "Scientific Laboratory of Forensic Reports and Records," I find that this is admissible and is admitted into evidence as Baker 4, page 128. And is there a request to publish this document?
Michael Burt (06:26:42):
Okay.
Judge (06:26:43):
Was that a yes? Oh, okay.
Michael Burt (06:26:45):
Yes.
Judge (06:26:45):
All right. So published, I'm assuming to all, to that screen as well?
Michael Burt (06:26:49):
Yes. Correct.
Judge (06:26:50):
All right. It may be published. Counsel, just as a reminder, as this is a probable cause, I understand and I appreciate you giving me a pointer of where it's going, but just as a reminder as probable cause it is admitted and you may discuss it, but I definitely want to keep this within the track of probable cause.
Michael Burt (06:27:13):
Understood.
Judge (06:27:14):
All right.
Michael Burt (06:27:14):
Thank you.
Judge (06:27:15):
Thank you, Mr. Burt.
Michael Burt (06:27:19):
Okay. Is it true what I just told the court that you pointed this particular page out as illustrating why you originally though we had three contributors?
Ms. Bakker (06:27:30):
Yes, that is true.
Michael Burt (06:27:30):
So explain to the court, is this an electropherogram?
Ms. Bakker (06:27:34):
Yes, this is an electropherogram. Each of those rectangles at the top, for example, D2S441, that is that small segment of DNA that I referred to earlier. And each of those peaks has a corresponding number that is the allele. So that corresponds to the number of repeats that an individual inherited.
Michael Burt (06:27:57):
And this is what you ultimately ... You get this electropherogram, not through running it through STRmix. There's a different device that you use to produce these electropherograms, right?
Ms. Bakker (06:28:12):
Correct. Yes. During the DNA process, this is the last step of that process. So what it's doing is it's ... DNA is found in cells of our body. We're taking those cells, we're breaking them open with chemicals to release the DNA from those cells. We're making photocopies of those pieces of DNA so that we can essentially see them. And then the last step is to separate those pieces by size. And the ultimate output is this electropherogram.
Michael Burt (06:28:40):
Okay. And is it true that you set the parameters for what the machine will pop up in terms of numbering the alleles?
Ms. Bakker (06:28:55):
Personally, I do not set that up. That was done during our validation of the chemicals and the software and the instrument that we utilize. But there are parameters. So the output of the DNA lets me know, for example, the different types of alleles. But that's not a parameter I set.
Michael Burt (06:29:15):
I want to make sure you answered that. You set or your lab sets what the machine does in terms of labeling particular alleles, correct?
Ms. Bakker (06:29:27):
Yes. That's part of the whole process and the validation. Yes.
Michael Burt (06:29:31):
So you could tell the machine, "Give me all the peaks at whatever level and label them as whatever the alleles are"?
Ms. Bakker (06:29:41):
I see. So yes. So during our validation, we determine our thresholds, our analytical threshold, and that stochastic threshold that I mentioned before. The analytical threshold is a threshold that was determined during validation that we input into the software that I utilize that says, for example, our analytical threshold is 150. Any peak that is 150 or greater, the software system will give me that allele call or that number for that peak. Any peak that's below the 150, the software system will not give me an allele call for it.
Michael Burt (06:30:18):
Even though it might be a true allele?
Ms. Bakker (06:30:21):
Correct. Yes.
Michael Burt (06:30:22):
So you could say... And you referred to a measurement, you refer to that as RFUs, right?
Ms. Bakker (06:30:29):
Yes, that is the unit.
Michael Burt (06:30:31):
What does that mean?
Ms. Bakker (06:30:33):
It stands for relative fluorescent unit.
Michael Burt (06:30:36):
So in your lab, you tell a machine, "Only label peaks that come above 150 RFU"?
Ms. Bakker (06:30:44):
The software that utilizes the information from the machine, yes.
Michael Burt (06:30:48):
However, it's true, is it not, that in determining the number of contributors, you look below that 150 RFU level?
Ms. Bakker (06:30:58):
And that is true, yes.
Michael Burt (06:30:59):
All right. Now on this, this is only showing one, two, three, four different locations, right?
Ms. Bakker (06:31:05):
Correct. Yes.
Michael Burt (06:31:06):
And you see a number of peaks at each one of these locations. Some of them are labeled, some of them are not.
Ms. Bakker (06:31:14):
Correct. Yes.
Michael Burt (06:31:15):
So tell us how you originally looked at this and said there's not two contributors, there's three.
Ms. Bakker (06:31:21):
Sure. So first what I do is I count how many labels that I see, so how many of those little squares under each of those locations. So for example, at D2S441, there are three squares. Knowing that one piece of information comes from mom and one comes from dad, if it's a single source profile from one individual, I expect to see no more than two squares. Because I see three, that gives me an indication that there's at least two individuals. Same thing for the next, D19S433, and as well as FGA. There were three peaks that were called. So I knew this had to be at least two individuals.
(06:32:02):
Then what I do is I take a look at the peaks that are not called and determine could there potentially be a third person included? So for example, at D2, the location farthest to the left, I'm asking myself that 12 in that bottom box, is it the same contributor as, for example, the 22 under FGA all the way to the right? Because I see peaks that are not labeled, it could be that the 12 belongs to one individual and those two peaks that are not called belong to a second or third individual. And that at FGA, I could be seeing the 22 from that third person, but that second person has dropped out. Because I'm able to use information below the threshold and I see peaks, that gives me an indication that I can increase my number of contributors to three, which I did in this case.
Michael Burt (06:32:56):
Okay. And when did you reach that conclusion, time-wise?
Ms. Bakker (06:33:03):
If I recall, it was somewhere around September 12th.
Michael Burt (06:33:07):
And when did you change your conclusion?
Ms. Bakker (06:33:13):
That I would have to refer...
Michael Burt (06:33:16):
Sure.
Ms. Bakker (06:33:30):
I changed my conclusion on September 13th of 2025.
Michael Burt (06:33:49):
And explain to the court why you changed your conclusion.
Ms. Bakker (06:33:52):
I was submitted an elimination sample from Mr. Twiggs. And an elimination sample is a sample in which it's from a known individual, and then there's an expectation that the individual's DNA might be present. In receiving that sample and talking to the investigators, it was decided that Mr. Twiggs should be used as an elimination. When I compared him to this sample, all of the DNA, unlike that major contributor, matched to Mr. Twiggs. So because of that, I determined that there's actually only two individuals, because those small peaks, there was nothing left for a third individual to be compared to.
Michael Burt (06:34:32):
You use a phrase elimination sample. That's typically used, is it not, in a situation where you're testing a sample that has more than one contributor?
Ms. Bakker (06:34:48):
Not necessarily. An elimination is just simply an individual that we're expecting their DNA to be there. So for example, if we have a stolen vehicle, I will request an elimination sample from the known driver of the vehicle so I can subtract out their DNA to see what I have left over. It doesn't necessarily have to be more than one individual. There certainly has been times where I only detect that known expected individual.
Michael Burt (06:35:15):
And you said you had a conversation with the investigators as to whether Twiggs should be included as... Or you talked to them about whether you should get elimination samples?
Ms. Bakker (06:35:32):
I talked to them with regards to if I should utilize Mr. Twiggs as an elimination versus comparing him and offering a statistic.
Michael Burt (06:35:41):
Okay. But in your report you concluded, did you not, that one of the contributors to both samples was Twiggs?
Ms. Bakker (06:35:55):
That is correct, yes.
Michael Burt (06:35:57):
Right. You didn't just assume that, you reached the determination that he was the source of both those samples, one of the sources, right?
Ms. Bakker (06:36:07):
I don't want to use the word source. But knowing that there was an expectation that his DNA could be present when I compared him to that DNA sample, I did see his DNA types present. So using the word assumed, that's verbiage that we use when we calculate our statistical calculation. I'm letting the software know I know this individual is there. I'm assuming that they're there. Based on my comparisons I did see evidence that that person was there.
Michael Burt (06:36:39):
But I guess what I'm confused about is we talked before about how your language should never imply an absolute identification, but in the body of your report, you say that one of the contributors is Twiggs. You don't say he's a possible contributor, like you do for Mr. Robinson, you say he is a contributor. Do you not?
Ms. Bakker (06:37:00):
I do. And with elimination samples, that's slightly different. So for example, let's say I have a sexual assault case and I have a vaginal swab from a female. She has a consensual partner. I can request an elimination sample from that consensual partner. If I see that they're present, I can say they're present and say the DNA foreign to that victim and that consensual partner is one person, for example. So it's different than comparing a known individual if they're an elimination sample. I can say that I expect their DNA to be there. And based on my interpretation and reviewing that data, they are present.
Michael Burt (06:37:41):
And based either on your conversations with the agents or other people, why did you think that Twiggs was someone whose DNA you would expect in those two samples?
Ms. Bakker (06:37:54):
So from what I recall in speaking with the investigators, Mr. Twiggs was a roommate of Mr. Robinson. And it was thought that those items came from potentially Mr. Robinson's home. And I don't recall exactly if it was a situation where a particular towel was known to have been in that house. I don't remember that exactly. But in talking to the investigators, based on their investigation, it was important to assume potentially Mr. Twiggs was present.
Michael Burt (06:38:27):
All right. Did any investigator ever tell you that the towel did not come from Mr. Robinson's home but was found in a bush out at the university?
Ms. Bakker (06:38:37):
I was aware of that, yes.
Michael Burt (06:38:40):
So you knew that that towel was not found in a place where you would inspect Mr. Twiggs' DNA to be present?
Ms. Bakker (06:38:48):
That is correct. It was found outside of a home. But again, based on speaking with the investigators, they had information to suspect that that towel came from Mr. Robinson's home and I should utilize Mr. Twiggs as an elimination.
Michael Burt (06:39:04):
All right. And again, you didn't assume that, you actually concluded it based on the match, right?
Ms. Bakker (06:39:11):
Based on reviewing Mr. Twiggs' DNA profile to what I developed from these items, I used him as an elimination sample.
Michael Burt (06:39:18):
Now you did various STRmix, what I'll call runs, correct?
Ms. Bakker (06:39:27):
That is correct, yes.
Michael Burt (06:39:28):
And the way this works is you input the number of contributors. You determine that. And then they also have something called HD and HP, right?
Ms. Bakker (06:39:43):
Correct. Yes.
Michael Burt (06:39:44):
Tell the court what that is.
Ms. Bakker (06:39:45):
So those are different propositions. So in calculating the likelihood ratio, likelihood ratio compares the probabilities of seeing a DNA profile given one of two different scenarios or explanations or hypotheses. One is that a particular person of interest is a contributor and the other is that an unknown unrelated individual is a contributor. So depending on the question being asked is how I set up STRmix, number of contributors. For example, if I'm utilizing someone as a known elimination sample, I will apply their DNA profile both to the HP and HD.
Michael Burt (06:40:23):
And the theory of this HP is the prosecution hypothesis, right?
Ms. Bakker (06:40:28):
Correct. Yes.
Michael Burt (06:40:29):
And HD is the defense hypothesis?
Ms. Bakker (06:40:32):
Correct. Yes.
Michael Burt (06:40:35):
And these are things you plug in based on your understanding of what the prosecution and the defense are contending?
Ms. Bakker (06:40:42):
Correct. Yes.
Michael Burt (06:40:42):
So how do you plug in the HD in a case where you don't yet have a defense postulating what their theory is?
Ms. Bakker (06:40:50):
So HD or the defense hypothesis is simply the DNA profile, the probability of the DNA profile, given that it's another unknown unrelated person to the prosecution's potential person of interest.
Judge (06:41:07):
Mr. Burt, I don't want to interrupt your line of questions, but we've been going for just shy of two hours. Would right now be a good time to take a 15-
Michael Burt (06:41:14):
It'd be a great time, Your Honor. Thank you.
Judge (06:41:16):
All right, let's take a 15 minute break. Let's see. We'll come back at 3:50. The court is in a brief recess.
Speaker 9 (06:41:24):
All rise.
Judge (07:03:46):
We are still with Mr. Burt and Ms. Baker on direct examination. Thank you.
Michael Burt (07:03:52):
Thank you.
Judge (07:03:52):
Mr. Burt, your witness.
Michael Burt (07:03:55):
Ms. Baker, would you take a look at in your notes page 24 of 379? Very bottom of the page.
(07:04:20):
Did you write there on the 15th of September 2025, "Spoke with Special Agent Fulger, gave update on report timeline, discussed it upon review it was decided that additional statistics needed to be run. Report will still be issued with Twiggs as an assumed contributor per previous discussions with Fulger and Carmack." Do you see that?
Ms. Bakker (07:04:48):
Yes, I do.
Michael Burt (07:04:50):
And what additional statistics needed to be run at that time?
Ms. Bakker (07:04:56):
So at that time, I believe I ran statistics with just Twiggs comparing that individual to the sample. If I may refer. I think that was the only additional.
(07:05:27):
Yes. After discussion with my reviewer, it was determined that I was also going to calculate a statistic or compare Twiggs by himself, comparing him to the evidence and having that run in my case file.
Michael Burt (07:05:43):
Okay. And could you go to Tab 38, page 39?
Judge (07:05:55):
Oh.
Michael Burt (07:05:56):
Yeah, it should not be on the screen.
Judge (07:05:57):
Let's pull it down from the screen. Thank you.
Michael Burt (07:06:00):
Thank you, sir.
Judge (07:06:01):
Just to the monitors of the attorneys and the witness, Mr. Burt?
Michael Burt (07:06:06):
Just for the witness, Your Honor.
Judge (07:06:07):
Okay. Just for the witness.
Michael Burt (07:06:09):
39. And this is a... Yeah, page 39. Is this the DNA report? I'm sorry, the STRmix report that was produced as a result of your inquiry that involved a comparison of the sample to Mr. Twiggs alone?
Ms. Bakker (07:06:32):
Yes, it is.
Michael Burt (07:06:33):
And is that a six-page report?
Ms. Bakker (07:06:38):
Yes, it is.
Michael Burt (07:06:40):
And is it a true and accurate copy of the STRmix report for that particular sample?
Ms. Bakker (07:06:59):
Yes, it is.
Michael Burt (07:07:00):
And move that into evidence, Your Honor. This would be Baker 38, page 39 through 44.
Judge (07:07:13):
Baker 38, page 39 through ...
Michael Burt (07:07:17):
I'm seeking admission as well as publication to the audience and the camera.
Judge (07:07:24):
I just want to make sure I have the label correct. Baker 38, pages 39 through 44. Did I hear that, correctly?
Michael Burt (07:07:29):
That's correct, Your Honor.
Judge (07:07:30):
All right. To the state?
Mr. McBride (07:07:33):
Yes, Your Honor. I object on grounds of relevance to the probable cause determination.
Judge (07:07:39):
All right. And Mr. Burt, would you like to respond?
Michael Burt (07:07:42):
Submitted, Your Honor.
Judge (07:07:49):
So I'm not exactly sure what this is in order to determine-
Michael Burt (07:07:52):
Sure.
Judge (07:07:54):
... how it fits into the probable cause analysis. So a little bit more information because as of right now, I don't have enough to admit it.
Michael Burt (07:08:01):
Understood. And I apologize to the court. So the report that was admitted into evidence has the conclusion in it that both samples were contributed, that Mr. Twiggs was a contributor to both samples. And this is the report that the analyst ran in order to make that determination, I believe.
Judge (07:08:26):
All right. And did these reports, were these made prior to State's Exhibit 31 being prepared?
Michael Burt (07:08:37):
Yes, that's correct.
Judge (07:08:40):
All right. I will admit... So Baker 38, pages 39 through 44 is admitted and may be published. Again, as a reminder for all attorneys, this is a probable cause standard. So if all parties can just keep that in mind as we're moving forward on this.
Michael Burt (07:09:03):
Sure.
Judge (07:09:04):
Thank you.
Michael Burt (07:09:05):
Thank you.
Judge (07:09:06):
And so it may be published to all screens.
Mr. McBride (07:09:17):
Counsel, do you have a page number on this?
Michael Burt (07:09:19):
Yeah, it's page 39.
Mr. McBride (07:09:21):
No, but the actual dates number I'm having to identify in the file [inaudible 07:09:25].
Michael Burt (07:09:41):
So is this the report that you referenced in your notes that you needed to run the sample through STRmix?
Ms. Bakker (07:09:48):
Yes.
Michael Burt (07:09:49):
Now at the top, this is the STRmix unit dated September 15th and it relates to item 7- 1, correct?
Ms. Bakker (07:10:01):
That is correct, yes.
Michael Burt (07:10:02):
All right. And then down below that, the kit used, if you could go to the summary of the input, you tell the software program, "Assume there are two contributors," right?
Ms. Bakker (07:10:21):
Correct, yes.
Michael Burt (07:10:22):
You input sample 7A?
Ms. Bakker (07:10:26):
Correct. Yes.
Michael Burt (07:10:27):
And when you input it it's just the raw data, right?
Ms. Bakker (07:10:30):
Correct. Just the numbers from the graph.
Michael Burt (07:10:32):
The numbers. And then known contributors under HP, the prosecution hypothesis.
Ms. Bakker (07:10:43):
Correct. Yes.
Michael Burt (07:10:45):
And you put in sample 61, right?
Ms. Bakker (07:10:49):
Yes.
Michael Burt (07:10:49):
That's Twiggs's known sample.
Ms. Bakker (07:10:52):
Correct. Yes.
Michael Burt (07:10:53):
And then the known contributors under the defense hypothesis, you left that blank.
Ms. Bakker (07:10:59):
Correct.
Michael Burt (07:11:00):
Is that because you didn't know what the defense hypothesis was?
Ms. Bakker (07:11:03):
No. Again, the defense hypothesis for this situation, if I'm comparing someone, is an unknown unrelated individual and that is taken into account during the calculation.
Michael Burt (07:11:14):
Okay. And then you input that data and what you get out from that is a likelihood ratio, right?
Ms. Bakker (07:11:21):
Correct. Yes.
Michael Burt (07:11:22):
So let's go to page two of that report. And is this a summary of the results from that test on the 15th in terms of a likelihood ratio?
Ms. Bakker (07:11:34):
Yes, it is.
Michael Burt (07:11:35):
What is a likelihood ratio? What does that mean?
Ms. Bakker (07:11:38):
A likelihood ratio is a statistic that calculates the probability of scene a DNA profile given one of two different hypotheses. One is that a particular person of interest is a contributor and the other is that an unknown unrelated individual is a contributor. The probability with the higher number gets the support and the magnitude of the support is determined by the ratio of those two numbers.
Michael Burt (07:12:04):
That's pretty technical stuff, but the bottom line is that the software computes the numbers and then you look at those numbers and determine whether it has any significance, right?
Ms. Bakker (07:12:19):
I don't know that I would say if it has significance. I report the value that's calculated.
Michael Burt (07:12:24):
Right. And why is one column... These columns relate to different what are called population databases, right?
Ms. Bakker (07:12:32):
That is correct, yes.
Michael Burt (07:12:33):
The one in the far left BAH is an FBI population database on Bahamians.
Ms. Bakker (07:12:40):
And African Americans, yes.
Michael Burt (07:12:42):
African Americans. Another one for Caucasians?
Ms. Bakker (07:12:45):
Correct. Yes.
Michael Burt (07:12:47):
SEH is Southeast Hispanics?
Ms. Bakker (07:12:49):
Correct.
Michael Burt (07:12:51):
And then Southwest Hispanics?
Ms. Bakker (07:12:53):
Correct.
Mr. McBride (07:12:54):
Objection.
Michael Burt (07:12:55):
That's all I have on that. I'm just trying to explain the chart.
Judge (07:12:58):
All right. Well, there's an objection. Let's pause and turning to Mr. McBride.
Michael Burt (07:13:02):
Sure.
Mr. McBride (07:13:03):
Your Honor, at this point, I'm going to object on, again, grounds of relevance to probable cause hearing. State v. Drozbeck, State v. Merrill, State v. Ramirez that the court has cited all hold that the court should bind the defendant over for trial unless the evidence is wholly lacking and incapable of reasonable inference to prove some issue as supports the prosecution's claim.
(07:13:27):
I don't know that any of this analysis goes to whether or not the expert's testimony and her report is wholly lacking and incapable of reasonable inference to prove her result in this case. We're far beyond this. We're hours into this examination. This feels like a 702 hearing to me. I think we're far beyond a probable cause hearing, Your Honor. I would ask the court to sustain the objection, not allow questioning on this or any other matter that does not deal with the issue of probable cause.
Judge (07:14:07):
Thank you, Mr. McBride. Mr. Burt?
Michael Burt (07:14:10):
Your Honor, the state offered this report on a very technical, complex scientific area of inquiry. And they offered to the court a conclusion in that report that Mr. Robinson and Mr. Twiggs were contributors to two samples that were found at the crime scene. They obviously think that's relevant to the probable cause inquiry or they wouldn't have offered the report in the first place. So having done that, I think the defense is entitled to inquire whether those conclusions are reliable because that, again, is the court's ultimate determination here, reliability of this evidence. And the court can decide it's not relevant, I'm sorry, it's not reliable. Therefore, I'm not going to rely on that in determining probable cause. And that or the court could say it is reliable and it bolsters up other evidence that the court is going to hear from. So the particular report in front of us goes directly to the issue of whether the expert correctly concluded that Twiggs not was a possible contributor, but was a contributor. And the state's theory here apparently is that both Mr. Robinson and Mr. Twiggs are somehow connected to this crime scene. So I think when the court sees what the numbers were generated and how that compares to her own standards for assessment, the court will see that the conclusion is not justified that she reached.
Judge (07:15:47):
All right. Well, I understand what both parties are saying and at a probable cause hearing the issue is whether we walk one mile or a hundred miles down the path. And so I want to keep it limited to one mile as opposed to a hundred miles because that would exceed the probable cause standard for a preliminary hearing for what is before me. And so Mr. Burt, as it relates to the objection, I'm going to sustain it in part. If you want to briefly address this and move on, you certainly may choose to do so, but as it relates to where we're at, my hope is we can keep this very brief-
Michael Burt (07:16:33):
Yes, I can do that.
Judge (07:16:34):
... as opposed to going through all this. So we can move on to whatever else you would like to present.
Michael Burt (07:16:38):
Thank you. We'll do that, Your Honor. And in the interest of doing that, could you bring up on the same screen part of her report, People's Exhibit 31?
Judge (07:16:50):
And let's take that off on the screen.
Michael Burt (07:16:52):
I'm going to need that up there because I need to do it-
Judge (07:16:54):
Oh, so is it part of the same... Because it was on that screen. I want to make sure that what you're calling up on the screen right now, is it part of this that was already admitted or something else?
Michael Burt (07:17:04):
It's part of this, which has already been admitted compared to plaintiff's Exhibit 31, which is also been admitted.
Judge (07:17:12):
I see. Okay. Thank you.
Michael Burt (07:17:12):
They both are.
Judge (07:17:12):
I just wanted to clarify.
Michael Burt (07:17:14):
Sure.
Judge (07:17:14):
All right. And do you want that published on the screens?
Michael Burt (07:17:18):
Yes.
Judge (07:17:19):
All right. Let's go ahead and do so.
Michael Burt (07:17:24):
And the chart I would like you to bring up from that report is on page five. Yeah, and just highlight that. Thank you.
(07:17:59):
So what we've blown up there is from your report, Plaintiff's 31, and you provided this chart in the report, correct?
Ms. Bakker (07:18:09):
That is correct, yes.
Michael Burt (07:18:10):
Explain to the court how this works, what this chart is supposed to represent.
Ms. Bakker (07:18:14):
Sure. So this is our verbal scale. In addition to the numerical likelihood ratio value that I provide, I also give a qualitative or a verbal equivalent to that numerical value that gives some kind of context to what that likelihood ratio means.
Michael Burt (07:18:31):
Okay. And on the left, explain what the greater than one million less than one in a hundred means. What does that scale relate to?
Ms. Bakker (07:18:42):
Sure. So that scale is the numerical value of the likelihood ratio. So if I have a likelihood ratio that's greater than or equal to one million, I designate that as very strong support for inclusion. The next example, 10,000 to less than one million, I would say that's very strong support for inclusion and so forth.
Michael Burt (07:19:01):
So you need to reach a likelihood ratio of two in order to get even limited support for an inclusion, correct?
Ms. Bakker (07:19:07):
Correct, yes.
Michael Burt (07:19:08):
Okay. If you could not have... Reduce that and go to page two of the report on the left. So from this chart, when you ran Mr. Twiggs against the sample, what was the likelihood ratio that you determined?
Ms. Bakker (07:19:44):
I believe this chart is not the comparison to Mr. Twiggs.
Michael Burt (07:19:51):
It's not in the report?
Ms. Bakker (07:19:53):
The chart at the bottom of the screen is not my comparison to Mr. Twiggs.
Michael Burt (07:20:04):
Let's verify that if we could, take that down, the highlight and repost 38, page 45. I'm sorry. Page 39 that is in evidence. There we go. Second page. Is this the likelihood ratio from your Twiggs comparison?
Ms. Bakker (07:20:52):
Yes, it is.
Michael Burt (07:20:52):
Okay. Now what was the likelihood ratio that you calculated based on this chart?
Ms. Bakker (07:20:59):
The likelihood ratio was one.
Michael Burt (07:21:01):
One?
Ms. Bakker (07:21:02):
Yes.
Michael Burt (07:21:03):
So that doesn't rise to the level of even limited inclusion, correct?
Ms. Bakker (07:21:08):
Correct. It would fall under an uninformative.
Michael Burt (07:21:11):
Uninformative. And yet you concluded that despite this STRmix reading with a likelihood ratio of one, that Mr. Twiggs was a contributor to both item seven and item eight, correct?
Ms. Bakker (07:21:25):
I did. So actually I didn't utilize this calculation to determine that Mr. Twiggs was a possible contributor or that I could use him as an assumed contributor. I visually looked at the DNA sample and the DNA, unlike that major contributor, he also had those peaks. So that was one proposition or one hypothesis that I determined that he was an assumed contributor. There are multiple different ways. We don't have a threshold. I don't have to see two, four, eight peaks to determine I think an individual is present given that the field submitted him as an elimination...
PART 12 OF 14 ENDS [07:22:04]
Ms. Bakker (07:22:03):
... in that the field submitted him as an elimination. I assumed he was a contributor. When I compared him to that data, I did see his DNA present. So when I calculated the statistic for Mr. Robinson, I used Mr. Twiggs as an elimination.
Michael Burt (07:22:18):
Let me see if I understand that. The STRmix that you relied upon to include Mr. Rob ... You relied on the STRmix to include Mr. Robinson as a possible contributor, correct?
Ms. Bakker (07:22:34):
Correct, yes.
Michael Burt (07:22:35):
But when you ran Mr. Twiggs' sample through STRmix, the result you got was that he was not a contributor, correct? Or that it was not even of limited value in including him?
Ms. Bakker (07:22:51):
Based on the STRmix run, it was uninformative, but I did use my own knowledge and training to determine that I was going to utilize him as an assumed contributor.
Michael Burt (07:23:02):
Okay. Your own knowledge and training, is there some standard that you use for deciding when not to rely on the STRmix results and when to sort of disregard it and rely on your training and experience?
Ms. Bakker (07:23:22):
I can't say that I disregarded it. When I'm comparing someone, that's my first determination: do I think this person is potentially included or excluded? If I determine that I think they're included, I will run STRmix to give weight to that inclusion.
(07:23:37):
Elimination samples are different. If I'm told that an individual is submitted as an elimination sample, I can assume they're there. Visually, I am able to look at the DNA evidence and determine, "Yes, I think there's enough evidence there to assume that individual," which is what I did here.
Michael Burt (07:23:56):
Okay.
(07:23:56):
At D16, Mr. Twiggs was a 912, right? According to your electropherograms?
Ms. Bakker (07:24:17):
That is correct, yes. Mr. Twiggs was a 912 at D16.
Michael Burt (07:24:22):
912.
(07:24:22):
And did you find 912 at that location in the 8-1 sample?
Ms. Bakker (07:24:32):
I'm sorry, the sample eight or sample seven?
Michael Burt (07:24:35):
Sample eight.
Ms. Bakker (07:24:49):
The only piece of information I had for sample eight at item D16 was a 12.
Michael Burt (07:24:56):
And you said Twiggs at that was a 912, right?
Ms. Bakker (07:24:59):
Correct. Yes.
Michael Burt (07:25:00):
But at that location, the evidence sample was not a 912, but a 12?
Ms. Bakker (07:25:06):
That was the only piece of information that was recovered at that location.
Michael Burt (07:25:10):
Let me ask you about your interpretation rules for excluding someone. Is this an accurate statement? This is from Butler's textbook. "In forensic DNA analysis, if any STR locus fails to match when comparing the genotypes between two or more samples, then the comparison of profiles between the question and the reference sample is usually declared a non-match regardless of how many other loci match."
Ms. Bakker (07:25:48):
I would agree with that if it's a single source sample. So single source, again, meaning from one individual. If I have a DNA profile from evidence and I compare it to a known individual, if there's a difference at even one location, I can say it's an exclusion.
(07:26:04):
If I have a mixture, it's not that cut and dry. I have to take into account how many people are in that mixture, how many pieces of information I have, is there potential dropout? So just because someone may not be present in a mixture doesn't necessarily mean that I'm going to automatically exclude them.
Michael Burt (07:26:25):
I see.
(07:26:25):
At D19S, what was Mr. Twiggs' type?
Ms. Bakker (07:26:35):
It was a 1416.
Michael Burt (07:26:37):
Did you find a 16 allele in the 8A sample?
Ms. Bakker (07:26:42):
No, I did not.
Michael Burt (07:26:45):
Okay.
(07:26:48):
At THO, what was Mr. Twiggs' type?
Ms. Bakker (07:26:54):
He was a 79.3.
Michael Burt (07:26:56):
Did you find a seven allele in the 8.1 sample?
Ms. Bakker (07:27:03):
No, I did not. But again, this is a mixture and there is some dropout. So just because I didn't see a seven, for example, does not mean I would automatically exclude someone.
Michael Burt (07:27:13):
It's a mixture, so there was some dropout. So did you assume that at that location that the allele that dropped out matched his allele?
Ms. Bakker (07:27:24):
At that location, no. There's only one individual represented there. So when comparing an elimination, I would essentially ignore that location. I'm looking at the other locations where there was two individuals present.
Michael Burt (07:27:40):
Okay.
(07:27:40):
Now a couple more topics and then we're done.
(07:27:46):
When you received this, the evidence, you got more than seven and eight, correct? You got a number of other samples?
Ms. Bakker (07:27:57):
Correct, I did.
Michael Burt (07:27:58):
You got a backpack, which you labeled as Exhibit 9, and a bunch of items from that backpack, correct?
Ms. Bakker (07:28:08):
Correct. Yes.
Michael Burt (07:28:10):
You were initially told that those items related to things that may have been discarded by the suspect.
Ms. Bakker (07:28:18):
So initially we didn't have any information. So we processed that. Those are items that are good for DNA. Not having any information from the investigators, we processed them for DNA. As the investigation continues, it was determined that that backpack was potentially left behind by a bystander and there was no comparisons needed at that time.
Michael Burt (07:28:41):
Well, left behind by a bystander or according to your notes at page 20, "The backpack belongs to Kirk's detailees?"
Ms. Bakker (07:28:59):
Yes. Based on the individual that ... That was not my communication log, that was someone else within the laboratory. That was the information that they received.
Michael Burt (07:29:08):
Before you received any samples, did you request to perform what's called destructive testing on the samples?
Ms. Bakker (07:29:19):
Yes, I did. And destructive testing is essentially consuming the sample; cutting the cotton off of the Q-tip or the swab, subjecting it to testing, so there's nothing remaining. I have to request permission to consume prior to doing so, and I did in this case.
Michael Burt (07:29:37):
And why did you do that?
Ms. Bakker (07:29:39):
That is part of our protocols that we have to request permission to consume, and we consume ... So DNA, we can't see it. So when an item is swabbed, we don't know how much DNA is on that swab, if anything, or how that swab was used. Did someone just swab using one side of it? Did they roll it and use all sides? Because I don't know that, it's our practice to consume that swab. It's our best chance of getting any DNA evidence.
Michael Burt (07:30:05):
And that's a determination that you made in this case before you even saw any of the evidence, correct?
Ms. Bakker (07:30:12):
Determination to consume?
Michael Burt (07:30:13):
Yeah.
Ms. Bakker (07:30:14):
Yes.
Michael Burt (07:30:15):
Okay.
(07:30:16):
Now remember I referred to that NRC report-
Ms. Bakker (07:30:19):
Yes.
Michael Burt (07:30:20):
... [inaudible 07:30:20] 1996?
(07:30:21):
Did they say they're a wrongfully accused person's best insurance against a possibility of being falsely incriminated, and [inaudible 07:30:30] the opportunity to have the testing repeated, such an opportunity should be provided whenever possible?
Ms. Bakker (07:30:37):
Yes, that does say that.
Michael Burt (07:30:39):
And does your laboratory have a policy, standard 7.4, which says, "Where possible, the laboratory shall retain or return a portion of the evidence sample or extract?"
Ms. Bakker (07:30:55):
That is correct. And we do actually return the remaining extract, the liquid from our DNA testing. So we did consume the swab, however, there was a small amount of liquid that was left and returned.
Michael Burt (07:31:08):
On some of the items, right?
Ms. Bakker (07:31:11):
I believe on all of the items.
Michael Burt (07:31:13):
Well, we'll get to that in a minute.
(07:31:14):
And that policy that I read is from your lab policy, right?
Ms. Bakker (07:31:20):
Yes.
Michael Burt (07:31:20):
The FBI's lab policy?
Ms. Bakker (07:31:21):
Yes, it is.
Michael Burt (07:31:23):
And then is there also a similar policy from the quality assurance standards, the FBI quality assurance standards, which says, "The laboratory must have a policy on sample consumption. The policy is expected to provide instruction for if and when the laboratory may or may not consume a sample and any documentation that the laboratory requires?"
Ms. Bakker (07:31:50):
That is correct, yes.
Michael Burt (07:31:51):
Okay.
(07:31:52):
Now your report indicates that certain samples were destroyed, consumed, correct?
Ms. Bakker (07:31:57):
That is correct, yes.
Michael Burt (07:31:58):
And which samples were consumed?
Ms. Bakker (07:32:02):
Items one through six, which were swabs from possible smudge, swabs of hand swipe, swabs from possible sweat drop, swabs from possible smudge, swabs of possible smudge and swabs from possible sweat drop; in addition to items 54 and 55, which were swabs of swiped finger areas and swabs of stairwell railing.
Michael Burt (07:32:38):
Okay. So when you wrote in your report that those items were consumed, which of those items ... And by that, you mean the actual swab was consumed?
Ms. Bakker (07:32:52):
Correct. So a swab is just like a Q-tip. So the cotton portion of that swab was cut off the wooden stick, placed into a tube, subjected to DNA testing. So we consider that consuming. But again, there is liquid at the end of that process that is returned to the field.
Michael Burt (07:33:09):
And the normal procedure in terms of sample preservation would be something called sample splitting, right? You split the swab and you use half, you save half so that your testing results can be replicated and retested?
Ms. Bakker (07:33:24):
So yes. However, again, I don't know how an item is swabbed. So even if I were to cut that swab in half, it could be that I'm testing the half that doesn't have any DNA and the other half may have some DNA, or the swab may have a little bit of DNA on one side and a lot on the other side. So for the best possible chance of getting a DNA profile, it is our practice to consume the entire swab.
Michael Burt (07:33:50):
So for the first six items, those were swabs that were taken from the northeast corner of the loci building, correct?
Ms. Bakker (07:34:00):
Correct. Yes.
Michael Burt (07:34:03):
And you used all of the swabs and you concluded that there was no DNA present on any of those items, correct?
Ms. Bakker (07:34:13):
That is correct.
Michael Burt (07:34:14):
So you couldn't do any comparative testing?
Ms. Bakker (07:34:16):
Correct. There was nothing for me to compare to.
Michael Burt (07:34:18):
Okay. And what did you have left after you did that in terms of the volume of extract? What was left?
Ms. Bakker (07:34:26):
So it was approximately three microliters, so a very small portion.
Michael Burt (07:34:33):
Very small portion. And you actually used 10 microliters to do your testing of those samples, right?
Ms. Bakker (07:34:38):
That is correct, yes.
Michael Burt (07:34:39):
So if you didn't get any results with 10, what you left over would not be sufficient to get any sort of independent testing done, correct?
Ms. Bakker (07:34:48):
It could be tested. However, my expectation, if I took 10 microliters and did not get any DNA, the remaining three would also still not give me any DNA.
Michael Burt (07:34:56):
Okay.
(07:34:58):
And for item 55, that was two swabs from a stairwell railing where the suspect touched the railing, right?
Ms. Bakker (07:35:12):
As far as I know, they were swabs from a stairwell.
Michael Burt (07:35:14):
And correct me if I'm wrong, but I understand from your lab notes that you took those two swabs and combined them into one sample and then used the whole sample, right?
Ms. Bakker (07:35:26):
That is correct, yes.
Michael Burt (07:35:27):
Okay. Before you did that, did you inquire whether the two swabs came from two different areas? For instance, maybe the suspect touched it here, but the other sample was taken somewhere else?
Ms. Bakker (07:35:38):
I did not. They were both labeled as coming from the same stairwell and they were packaged together. So our policies and procedures is that we can combine those two together.
Michael Burt (07:35:49):
And when you do that, you create a mixture, right?
Ms. Bakker (07:35:53):
I don't know that I would agree that combining the two would create a mixture. Given the item of evidence, a stairwell railing, I don't necessarily expect that one swab would have one person, the second swab would have a different second person and combining the two of them creates a mixture. However, I don't know that for certain. But again, I don't know is DNA present? So our procedure is to combine and consume those swabs.
Michael Burt (07:36:24):
Okay. And in this case, when you did that, what you got was a complex mixture, right?
Ms. Bakker (07:36:29):
I did. I got DNA from more than five individuals, so I could not provide a conclusion.
Michael Burt (07:36:37):
All right.
(07:36:37):
Now ...
Judge (07:36:37):
And Mr. Burt, we are at the 4:30 point. I just want to inquire ...
Michael Burt (07:36:52):
Okay. I just have-
Judge (07:36:53):
We're not applying pressure. Just trying to understand.
Michael Burt (07:36:53):
One more and then we're-
Judge (07:36:53):
Okay.
Michael Burt (07:36:54):
... And I'll be done with her.
(07:36:58):
We talked earlier about your testing of the length of the DNA sequence ... The length of the DNA boxcars, not the sequence of ACTNG within those sequences, within those boxcars, right?
Ms. Bakker (07:37:27):
Correct. Yes.
Michael Burt (07:37:29):
And is it true that there are different alleles that have the same length when you measure by SDRs, but have different sequences?
Ms. Bakker (07:37:39):
Yes, that is possible.
Michael Burt (07:37:42):
And I'd like to show you a chart that you have reviewed. I believe this is ... Could you bring up 34?
(07:37:55):
This is not in front of the ... On the public screen. Just for the witness.
Judge (07:38:02):
Okay.
Michael Burt (07:38:07):
And is this a chart that I prepared and you looked at to see if I had correctly stated what alleles were found?
Ms. Bakker (07:38:16):
Yes, it is.
Michael Burt (07:38:18):
And does it, as it's presently existing, accurately state what the alleles are at each location?
Ms. Bakker (07:38:24):
Yes.
Michael Burt (07:38:25):
Okay. I would move that into evidence. It's five pages and it's Baker 34.
Judge (07:38:37):
Mr. McBride?
Mr. McBride (07:38:43):
Yes, I object. Unless this exhibit is reasonably likely to defeat the prima facie showing a probable cause, this is irrelevant to the preliminary hearing.
Judge (07:38:53):
Mr. Burt.
Michael Burt (07:38:54):
Your Honor, this exhibit and the next one go directly to whether the comparisons being made between Mr. Robinson's sample and the evidence samples are usable and reliable to make a determination that he is a probable contributor.
Judge (07:39:17):
I'm not sure I'm following with what you're saying on there. And maybe it's just because it's late in the day.
Michael Burt (07:39:21):
Yeah, it could be.
Judge (07:39:22):
Could you repeat that?
Michael Burt (07:39:24):
So this chart illustrates what allele she found at each location for Mr. Twiggs and Mr. Robinson, and for the evidence samples, the 71A and 81A. The other alleles are on here as well, but we're going to focus on 71 and 81.
(07:39:45):
And for instance, Your Honor, you'll see that under the first reading there is for Tyler Robinson at the D3 location, he is a 17. Okay? Take that down. And then if you go down to the 71 towel sample, which is what the topic is of this report introduced by the state, you'll see that she found a 17 there as well measured only by the length of the DNA strand. And what she's going to testify to is at this location and five or six others, there are alleles, all of which measure here 17, but actually contain different sequences, and that her testing that she used does not measure for those differences.
Judge (07:40:50):
And so as it relates to probable cause ... That's what I want to keep coming back to.
Michael Burt (07:40:54):
Sure.
Judge (07:40:55):
Again, if this was a trial, this may be a little bit different analysis that the trial judge applies. But as a magistrate taking a look at this and looking at the probable cause standard, how does this comport?
Michael Burt (07:41:11):
So it comports because it goes to the ultimate opinion expressed in the report that the state is offering that the report offers reliable support that Mr. Robinson is a possible contributor. And we're asking the court to consider that the comparisons are only based on a limited number of length based comparisons and that there are sequence differences so that she cannot distinguish, and I believe she'll testify she cannot distinguish based on the testing that she did in at least five separate locations whether the evidence sample and Mr. Robinson's sample, or for that matter, Mr. Twigg's sample, matches the sequence differences here.
Judge (07:42:03):
Okay.
Michael Burt (07:42:03):
And this is my final area and I think I can do it very efficiently, and I think it is important for the court to consider, especially as it relates to the comparison to Mr. Robinson.
Judge (07:42:15):
Mr. McBride.
Mr. McBride (07:42:16):
And she is also going to testify that the analysis she does is based on looking at the totality and all of the different markers that match and are consistent, and that's how she comes to the opinion that she does.
(07:42:29):
The point is there are explanations that are susceptible to different interpretations and arguments, but ultimately, we're going to have an expert hearing where all of the literature is going to be before the court and the court's going to determine if it meets a threshold of reliability for admission at trial. But at this stage, even granting that there may be some argument that may come from defense counsel's position, the court can't weigh it. This does not go to the probable cause determination. And I don't think it's relevant. And this exhibit in particular is not relevant without the testimony of the witness. And so the exhibit should not be admitted on its face either.
Michael Burt (07:43:09):
But that's why I was trying to lay a foundation that she offered a proof to the court that she would testify that in fact there are these sequence differences at the six different locations relevant to the comparison to Mr. Robinson. And when the state says the court cannot weigh it, the court can weigh reliability. The court has ruled that. So we're simply asking the court to take into account the limited nature of these comparisons and the fact that she cannot, based on the testing that she performed, tell a court whether there are differences at these five locations, she can't match Mr. Robinson to the questioned samples because she didn't do sequence testing, and she'll also testify that the FBI is in the process of implementing this kind of testing.
Judge (07:44:11):
All right. Thank you to both sides.
(07:44:15):
I'm going to allow the admission of this evidence, but I'm also going to set a limit of a limited number of questions. And we are now at 4:40. This is on the cusp of whether it is applicable to the probable cause standard. I want to afford defense its full opportunity, but I still have to reign it in to keeping it to probable cause and not going into a full exploration, because that's not the purpose of a preliminary hearing.
(07:44:47):
So I will admit Baker 34, but Mr. Burt, I'm going to limit you to ... How much time do you need to address this?
Michael Burt (07:44:59):
I just need about four to five minutes.
Judge (07:45:01):
Okay.
Michael Burt (07:45:01):
I mean, the next chart will be the chart with the, what are called isoalleles displayed for the court so the court can see what we're talking about, and that's it.
Judge (07:45:10):
All right. Well, we'll-
Michael Burt (07:45:11):
I'm just going to have her document that in fact I've accurately stated what the alleles are that have sequence differences.
Judge (07:45:19):
All right. So it is ... Mr. McBride?
Mr. McBride (07:45:22):
Just on a second matter, which is I need to cross-examine this witness. She's got to leave town today. I would like 20 minutes to cross- examine the witness.
Judge (07:45:31):
All right. Well, I will go with the ... I accept Mr. Burt's representations to the amount of time, and I'm going to talk less because that's consuming more time, and also allow the state the appropriate time for cross-examination given the nature of this witness having to travel.
(07:45:49):
So Mr. Burt, I'll turn to you. This has been moved into evidence. Do you want it on the screens?
Michael Burt (07:45:56):
Actually, I don't need it on the screen. Just in the interest of efficiency, pull up the next one please.
Judge (07:46:01):
Okay.
Michael Burt (07:46:07):
I want 35. Take that one down.
(07:46:15):
And is this exhibit the same chart with what are called the isoalleles indicated?
Ms. Bakker (07:46:23):
Yes, it is.
Michael Burt (07:46:24):
And isoalleles is a term used to refer to these alleles that have different sequence, but the same length?
Ms. Bakker (07:46:31):
Correct. Yes.
Michael Burt (07:46:32):
So across the top there for allele 17 and D3, there is a allele 17A, allele 17B, allele 17C, all with the same length, but different sequences for each of those three.
Ms. Bakker (07:46:52):
Correct. Yes.
Michael Burt (07:46:53):
And similarly at VWA where you say that Mr. Robinson is an 18-19, an 18-19 in the evidence sample, there's an 18A, a 18B, a 19A and a 19B?
Ms. Bakker (07:47:10):
Correct. Yes.
Michael Burt (07:47:11):
And similarly for the other areas I've indicated there, I've accurately stated what the different sequence alleles are, correct?
Ms. Bakker (07:47:21):
Yes.
Michael Burt (07:47:22):
So I move this exhibit into evidence, Your Honor, and for publication.
Judge (07:47:27):
And is this Baker 34?
Michael Burt (07:47:30):
Yes.
Speaker 10 (07:47:30):
Baker 35.
Michael Burt (07:47:31):
30 ...
Speaker 10 (07:47:32):
35.
Michael Burt (07:47:34):
35. Baker 35.
Mr. McBride (07:47:35):
Same objection, Your Honor.
Judge (07:47:36):
All right. I'll admit into evidence under the previous statement as it relates to Baker 34. It may be published.
Michael Burt (07:47:56):
And as you look at these five areas, you can't distinguish the evidence samples from Mr. Robinson based on the sequence differences, can you?
Ms. Bakker (07:48:06):
Correct. I only utilize length differences, STRs in this case. The FBI laboratory does not use sequencing for nuclear DNA testing, nor am I qualified in it.
Michael Burt (07:48:17):
All right. What is NGS?
Ms. Bakker (07:48:19):
NGS stands for next generation sequencing.
Michael Burt (07:48:22):
And your laboratory is involved in validating next generation sequencing, correct?
Ms. Bakker (07:48:27):
We utilize next generation sequencing for mitochondrial DNA, which is a different subset of DNA testing, but not for nuclear DNA testing, which is what we're talking about today.
Michael Burt (07:48:39):
All right. But the people who market STRmix also market a sequence platform, do they not?
Ms. Bakker (07:48:45):
I'm not aware if they do or do not.
Michael Burt (07:48:53):
Last question. Take a look at ... Not that one ... There we go.
(07:48:55):
Well, I'll save that for redirect. Thank you.
Ms. Bakker (07:49:27):
Thank you.
Judge (07:49:28):
All right. So turning to the state. Mr. McBride.
Mr. McBride (07:49:51):
Oops.
(07:49:55):
Good afternoon.
Ms. Bakker (07:49:56):
Good afternoon.
Mr. McBride (07:50:13):
I want to start by asking you what your training and experience is. First of all, do you have any education?
Ms. Bakker (07:50:21):
Yes, I do. I have a bachelor's of science in biology from Salisbury University.
Mr. McBride (07:50:27):
And after your bachelor's in biology degree, what did you do for your career and then further education?
Ms. Bakker (07:50:37):
Upon graduating from college, I began working at the FBI laboratory as a contractor. I was assigned to the Federal Convicted Offender Program, which was a program under the DNA unit. During that time, I did that for aproximately a year and a half, it was my responsibility to open and inventory and barcode DNA collection kits sent in from federal agencies across the United States.
(07:51:02):
I then became a biologist in the DNA casework unit. I did that for approximately six years. During that time, I did the actual testing of items of evidence. So swabbing, cutting those swabs, producing the DNA profile. And then in 2015, I accepted a position as a forensic examiner, which I am still today.
Mr. McBride (07:51:22):
I'm sorry, what year was that?
Ms. Bakker (07:51:24):
2015.
Mr. McBride (07:51:25):
So 11 years you've been doing more or less the same duties you have now. Is that right?
Ms. Bakker (07:51:30):
Correct. Yes.
Mr. McBride (07:51:33):
I want to ask you about your lab's accreditation. What is accreditation for a laboratory?
Ms. Bakker (07:51:39):
Accreditation is a formal recognition that our laboratory is following a very strict set of standards. We're accredited by ANAB, the American National Standards Institute National Accreditation Board. And our accreditation shows that we have to follow standards, such as I have to have a certain education background, how we process evidence, how we store evidence.
(07:52:05):
Every four years we're audited to those standards, meaning an outside body will come into our laboratory, look at my training records, look at our standard operating procedures to ensure that we're following those standards.
Mr. McBride (07:52:22):
And you mentioned your training. So what do you have to do as an examiner there, as a scientist there for your lab to maintain its accreditation?
Ms. Bakker (07:52:34):
So for my training program, I had to complete a two-year training program. During that time I learned the science behind DNA testing, and I showed that I understood that science by completing oral board examinations and written examinations.
(07:52:50):
I also then had to show that I can relay results, those scientific results to a jury by completing moot court exercises. And before becoming qualified, I then took something called a competency exam, or it's like a final examination, to show that I'm qualified to perform my duties.
(07:53:08):
During that accreditation or that audit process, my training records were reviewed to make sure that I had the proper coursework, the proper college degree, as well as completing successfully that training program.
Mr. McBride (07:53:24):
And do you have to keep up with ongoing education to maintain your ... Do you have a certification?
Ms. Bakker (07:53:30):
I'm not certified. I'm qualified as an examiner.
Mr. McBride (07:53:33):
To maintain your qualification, do you have to have ongoing education?
Ms. Bakker (07:53:37):
Yes. On a yearly basis, I have to complete at least eight hours of continuing education. And this can be done by attending conferences or lectures or reading scientific literature.
Mr. McBride (07:53:50):
Do you also have to undergo proficiency testing?
Ms. Bakker (07:53:53):
Yes. And a proficiency test is a test that we receive from an outside vendor. I process that test like I would any other case and submit those answers to determine if I'm satisfactory or unsatisfactory. This tests not only me to see if I'm still proficient in my qualifications, but it also tests the laboratory process to ensure that we're getting accurate and reliable results.
Mr. McBride (07:54:19):
Now, as you discussed your work in this case, you talked about your work needing to be reviewed by another analyst.
Ms. Bakker (07:54:27):
Correct, yes.
Mr. McBride (07:54:28):
And is that true in every single case?
Ms. Bakker (07:54:30):
Yes. In every one of our cases, they have to undergo a technical review in addition to an administrative review.
Mr. McBride (07:54:38):
And it sounds like during those technical reviews and administrative reviews, there's discussions between you and other analysts. Is that accurate?
Ms. Bakker (07:54:46):
Yes.
Mr. McBride (07:54:47):
And is that an opportunity for training and learning as well?
Ms. Bakker (07:54:50):
Yes, absolutely.
Mr. McBride (07:54:51):
And I assume that training and learning goes both directions, that you're learning and you're also helping others understand your though process which might train them as well. Is that accurate?
Ms. Bakker (07:55:00):
That's true, yes.
Mr. McBride (07:55:03):
The tools you use, are the tools you use validated?
Ms. Bakker (07:55:06):
Yes, they are.
Mr. McBride (07:55:09):
And what does that mean to have a tool that you use validated?
Ms. Bakker (07:55:12):
So a validation is a thorough testing of a process or procedure. So before we subject any evidence to testing, we ensure that those process and procedures will work within our laboratory. Based on the validation, we create something called standard operating procedures, or SOPs. And these are kind of like cookbooks. It gives us step-by-step instructions on how to do our process and procedures. And then both myself as an examiner as well as the biologists, we're all trained to those standard operating procedures and tested to those standard operating procedures during proficiency tests.
Mr. McBride (07:55:50):
Now you've talked about, I think a couple of the tools you use. One you call STRmix. Is that right?
Ms. Bakker (07:55:55):
Correct, yes.
Mr. McBride (07:55:56):
And is that tool validated?
Ms. Bakker (07:55:59):
Yes. It's validated both developmentally and internally. Developmentally-
PART 13 OF 14 ENDS [07:56:04]
Ms. Bakker (07:56:02):
... did both developmentally and internally. Developmentally, it's validated by the creators of the software. And then we also, we, the FBI laboratory, also tested STRmix to ensure that we could use it within our laboratory and produce accurate and reliable results.
Mr. McBride (07:56:17):
Now, when you say it was developmentally validated, is that in a peer-reviewed study?
Ms. Bakker (07:56:23):
Yes, it is.
Mr. McBride (07:56:28):
And how widely is STRmix used throughout the world?
Ms. Bakker (07:56:36):
STRmix used in approximately 120 laboratories, both domestically and internationally.
Mr. McBride (07:56:59):
I want to go back to some of the questions that you were asked on direct examination. You were asked about an Exhibit 8.4, Baker 8.4, which is the DOJ Ultra, which is the Uniform Language... What does that stand for?
Ms. Bakker (07:57:15):
Uniform Language for Reporting and Testimony, I believe.
Mr. McBride (07:57:18):
Okay. It talks about language that you should use and language that you shouldn't use as an examiner and a scientist, correct?
Ms. Bakker (07:57:32):
That is correct, yes.
Mr. McBride (07:57:33):
Now, I want to ask you a little bit about what you do when you have a conclusion like you did in Exhibit 31. Do you know ... The directive from the Department of Justice limits the adjectives you can use to describe the evidence and the conclusions that you reach. Is that accurate?
Ms. Bakker (07:58:00):
Yes, it is.
Mr. McBride (07:58:01):
And the thinking behind that is to submit the statistical number and let others decide, meaning the reader decide how they want to describe that number. Is that accurate?
Ms. Bakker (07:58:12):
Yes, it is.
Mr. McBride (07:58:14):
So for example, if we can look at Exhibit 31, if you don't mind publishing that. Yes, and that's been admitted. So if we can put it on the screen. And Kimberly, if you could scroll to page three when that comes up. Thank you. So item seven, sub one is the swabbing from the towel from the rifle. We have the number in a written form in the second paragraph beneath the heading. And then beneath that, you have a table, correct?
Ms. Bakker (07:59:05):
That is correct, yes.
Mr. McBride (07:59:07):
And the likelihood ratio gives the number, right? That's the likelihood ratio. And that's stated in sentence form in the paragraph proceeding the table, correct?
Ms. Bakker (07:59:18):
Correct. Yes.
Mr. McBride (07:59:20):
The only language you can use to describe what that number means from the DOJ directive is very strong support for inclusion, correct?
Ms. Bakker (07:59:28):
Correct. Yes.
Mr. McBride (07:59:30):
And the sentence there that says, "The DNA results from item 7.1 are 1.7 octillion times more likely if Twiggs and T Robinson are contributors than if Twiggs and an unknown unrelated person are contributors." The reader can assign whatever value they want to that, correct?
Ms. Bakker (07:59:48):
What do you mean?
Mr. McBride (07:59:49):
Meaning adjective to describe what that means.
Ms. Bakker (07:59:52):
Sure. Yes.
Mr. McBride (07:59:53):
The adjective you can use is very strong support.
Ms. Bakker (07:59:57):
For inclusion, yes.
Mr. McBride (07:59:58):
Okay. For inclusion. All right. If we go to 8.1 ... Kimberly, if you can scroll down just to make that a little bit easier to view. Same question there. The results are from 8.1 are 30 quintillion times more likely if Twiggs and T Robinson are contributors than if Twiggs and an unknown unrelated person are contributors. The adjective you're allowed to use is very strong support for inclusion again, correct?
Ms. Bakker (08:00:25):
Yes.
Mr. McBride (08:00:25):
Okay. We can take that exhibit down. Thank you. You were asked about formal activity level and you described this as the lab cannot testify about or you cannot testify about what action left the DNA on the object. Is that right?
Ms. Bakker (08:00:57):
That is correct, yes.
Mr. McBride (08:01:00):
Does that mean that an individual did or did not touch ... Well, let me ask you this. How can DNA get onto an object?
Ms. Bakker (08:01:11):
DNA can get on an object via direct contact, so an individual touching an object. It can also end up on an item via body fluids such as blood or through transfer. So if I were to touch an object and then that object is given to someone else, my DNA could potentially be on that other individual through the transfer of DNA.
Mr. McBride (08:01:34):
And you cannot testify as to what precise action left the DNA on the object, correct?
Ms. Bakker (08:01:45):
Correct. I cannot.
Mr. McBride (08:01:46):
Okay. Same question about time. You can't testify about the exact time that DNA was left on an object, right?
Ms. Bakker (08:01:53):
Correct.
Mr. McBride (08:01:54):
But there are some indicators that may give some information about how long and the conditions under which DNA was placed on an item, like degradation?
Ms. Bakker (08:02:10):
Yes, degradation or the condition of the item. So again, if a firearm, for example, is in a river, I would expect with the water rushing over that item, I may or may not be able to detect DNA. Also, if there's an item of evidence that it is exposed to the elements, something that's been left behind 10 years ago, I don't necessarily expect to recover DNA, but something that may have been left yesterday, I might be able to detect DNA.
Mr. McBride (08:02:41):
An item that has been left in the dirt or has been rubbed in the dirt, could that affect your ability to recover DNA?
Ms. Bakker (08:02:46):
It could, yes.
Mr. McBride (08:02:47):
Could it also affect degradation?
Ms. Bakker (08:02:48):
Yes.
Mr. McBride (08:02:52):
Can UV rays affect degradation?
Ms. Bakker (08:02:54):
Yes, it can.
Mr. McBride (08:03:00):
Does degradation keep you from doing your work?
Ms. Bakker (08:03:03):
No, it does not.
Mr. McBride (08:03:05):
Is degradation normal?
Ms. Bakker (08:03:07):
Yes, it is.
Mr. McBride (08:03:10):
Does all DNA degrade?
Ms. Bakker (08:03:12):
It does, yes.
Mr. McBride (08:03:13):
I imagine if it's kept in a pristine environment, it would degrade less than if it's found in a less ... Or out in the open. Is that accurate?
Ms. Bakker (08:03:25):
Yes.
Mr. McBride (08:03:25):
Okay. You said with regard to the screwdriver, there is some degradation. Did that affect your ability to reach conclusions in this case?
Ms. Bakker (08:03:37):
No, it did not.
Mr. McBride (08:03:38):
You said on item seven, the towel or the swab from the towel, there was slight degradation, not as much as Exhibit 8. Is that accurate?
Ms. Bakker (08:03:47):
Yes.
Mr. McBride (08:03:47):
Did that degradation affect your ability to reach a conclusion here?
Ms. Bakker (08:03:50):
No, it did not.
Mr. McBride (08:04:04):
You were asked about a PCAST report. You testified that, that gave guidance on different areas of forensic science. Do you know what year that report was published?
Ms. Bakker (08:04:15):
I don't recall the year.
Mr. McBride (08:04:19):
Do you know if it's been within the last five years?
Ms. Bakker (08:04:22):
No, it is not.
Mr. McBride (08:04:23):
Meaning it's older than that?
Ms. Bakker (08:04:24):
Yes.
Mr. McBride (08:04:26):
Do you know if it's been in the last 10 years?
Ms. Bakker (08:04:28):
I think it was 2016, but I'm not entirely sure. I would say within the last 10 years.
Mr. McBride (08:04:34):
Let me ask you this. Has the science in your area, can I refer to it as probabilistic genotyping?
Ms. Bakker (08:04:44):
Probabilistic genotyping is the math in my area. Yes.
Mr. McBride (08:04:50):
The science in your area and in your field, has it developed over the last 10 years?
Ms. Bakker (08:04:54):
Yes, it has.
Mr. McBride (08:04:55):
And have there been studies that have made suggestions which have been implemented in the field?
Ms. Bakker (08:05:01):
Yes.
Mr. McBride (08:05:08):
You testified about Exhibit 7 and 8 that they both had mixtures. Excuse me. Yes, items seven and eight. In your testing of these items, that they both had mixtures. And you stated ... I want to make sure I understood this. You stated, "I believe that the minor contributor was less than 20% and that it was actually 5% and the ratio was 5% to 95%."
Ms. Bakker (08:05:42):
For one of the samples, yes.
Mr. McBride (08:05:44):
Do you remember that?
Ms. Bakker (08:05:44):
Yes.
Mr. McBride (08:05:45):
Does that mean the 5% was from Twiggs and the 95%, that 95% is assumed from the defendant, Robinson?
Ms. Bakker (08:05:58):
When I calculated the statistic, Twiggs' DNA profile aligned with the 5% contributor and Mr. Robinson's DNA profile aligned better with the 95% contributor.
Mr. McBride (08:06:10):
Okay. Same question with regard to eight. I think you said the ratio was 11% from the minor and 89% from the major. Is that Twiggs being the 11% and Robinson being the 89%?
Ms. Bakker (08:06:24):
Yes. Twiggs better aligned with that 11% contributor and Mr. Robinson better aligned with that 79% contributor.
Mr. McBride (08:06:42):
You're asked about Baker 4, an Exhibit that was titled Baker 4 365. Do you remember this exhibit by chance? I don't have a copy of it. Well, do you have Baker 4 365? Put that up. And item seven is the towel, right?
Ms. Bakker (08:07:18):
Yes.
Mr. McBride (08:07:19):
Item eight is the screwdriver.
Ms. Bakker (08:07:21):
Correct. Yes.
Mr. McBride (08:07:22):
Thank you. It's 5:00. I'm going to wrap up. We can go ahead and take that down. I'm sorry. Thank you for helping out with that. In reaching your conclusions, did you follow the protocols of your accredited lab?
Ms. Bakker (08:08:04):
Yes, I did.
Mr. McBride (08:08:05):
And based on your training and experience in following those protocols, did you in fact come to the conclusions described in Exhibit 31?
Ms. Bakker (08:08:16):
Yes, I did.
Mr. McBride (08:08:17):
Thank you.
Judge (08:08:20):
All right. Mr. Burt? And how much time are you anticipating?
Michael Burt (08:08:25):
Five minutes.
Judge (08:08:25):
All right.
Michael Burt (08:08:34):
You referred on cross-examination to your training and experience, right?
Ms. Bakker (08:08:38):
Yes.
Michael Burt (08:08:38):
Do you agree with this statement in the PCAS report? "Experience or judgment cannot be used to establish the scientific validity and reliability of a metrological method such as a forensic feature comparison method. Moreover, a forensic examiner's experience from extensive casework is not informative, because the right answers are not typically known in casework, and thus examiners cannot accurately know how often they erroneously declare matches and cannot readily hone their accuracy by learning from their mistakes in the course of casework." Do you agree with that statement?
Ms. Bakker (08:09:23):
I don't. I think experience, they're right in the fact that we never know the true answer. However, my experience means that I've seen a lot of different DNA. I've seen a lot of validation data, so that does help me come to a conclusion.
Michael Burt (08:09:41):
Do you agree with this statement by that same report? "Good professional practices such as the existence of professional societies, certification programs, accreditation programs, peer-reviewed articles, standardized protocols, proficiency testing and the code of ethics cannot substitute for actual evidence of scientific validity and reliability."
Ms. Bakker (08:10:09):
I don't think I agree with that either. The science has been heavily validated and tested to show that's reliable. Following protocols that are based on validation, again, shows that my results are accurate and reliable as well as being proficiency tested.
Michael Burt (08:10:29):
By the way, you said that, that report was not authored by experts, but the head of that group was Eric Lander, who is one of the foremost experts in the area of forensic biology. Is he not?
Ms. Bakker (08:10:44):
That name does not ring a bell. I don't know who that individual is.
Michael Burt (08:10:47):
You don't know who Eric Lander is?
Ms. Bakker (08:10:49):
No, I do not.
Michael Burt (08:10:49):
Okay. When did you go to school? What years?
Ms. Bakker (08:10:53):
2003 to 2007.
Michael Burt (08:10:56):
You said that STRmix was widely used and then it's been validated. The PCAS report said the problem is it's been validated by the people selling the product, right?
Ms. Bakker (08:11:07):
Developmental validation, yes. Internal validation, no. A laboratory that's going to utilize STRmix has to validate within their own laboratory.
Michael Burt (08:11:16):
And the PCAS report said that we need validation data, not by the people selling the product, but by independent scientists in order to make this reliable, right?
Ms. Bakker (08:11:27):
They do, and that's exactly what happened. There was 31 laboratories that came together in response to the PCAS report and gave their validation data on how they internally validated STRmix.
Michael Burt (08:11:40):
And then after that information came forward, the PCAS committee reviewed it and they said, "PCAS was unpersuaded by those studies. While likelihood ratios are a mathematically sound concept, their application requires making a set of assumptions about DNA profiles that require empirical testing. Errors in the assumptions can lead to errors in the results. To establish validity with a range of parameters is thus important to undertake empirical testing with a variety of samples in the relevant range." And they specifically address the studies you're referring to, did they not?
Ms. Bakker (08:12:21):
I believe they did, yes.
Michael Burt (08:12:23):
Yeah. And then lastly, you said that STRmix is widely used, but as I understand your testimony, you didn't use it and rely upon it for your conclusion about Twiggs, right? The software told you there was no support there for including them and you ignored it and decided otherwise, correct?
Ms. Bakker (08:12:48):
I did not ignore it. Again, given the type of sample, it was an elimination sample. I compared that individual to the DNA profile that I developed and determined that I could conclude that I could utilize him as an elimination sample.
Michael Burt (08:13:06):
You said your laboratory was accredited, correct?
Ms. Bakker (08:13:08):
Yes.
Michael Burt (08:13:09):
But you're aware that in 2004, the Inspector General did a comprehensive audit of your laboratory and publish a report called the The FBI DNA Laboratory: A Review of Protocol and Practice Vulnerabilities, which found a number of errors in the way that your lab does testing, correct?
Mr. McBride (08:13:31):
Objection. The 2004 study is hardly relevant to this proceeding 22 years later.
Michael Burt (08:13:37):
It's relevant because he's relying on accreditation to somehow say that these results are valid. This lab was accredited when this study was done.
Judge (08:13:47):
I'll allow this single question as she may respond, so I'm overruling the objection and then we'll continue to move forward.
Michael Burt (08:13:53):
You're aware of that study, right?
Ms. Bakker (08:13:55):
No, I'm not.
Michael Burt (08:13:56):
Okay. Thank you. That's all I have.
Judge (08:13:58):
All right. Anything further for this witness?
Mr. McBride (08:14:02):
Yes. I think there's one follow-up needs to be asked. You were asked or you testified that you never know the true answer with field work, correct?
Ms. Bakker (08:14:12):
Correct. Yes.
Mr. McBride (08:14:12):
And that's compared to ground truth studies where you do know the true answer and you can compare the conclusions that analysts draw with the true answer, the ground truth answer that is the basis of the study. Is that right?
Ms. Bakker (08:14:24):
Yes. And that is what our validation is.
Mr. McBride (08:14:27):
Your validation actually is a ground truth test in essence?
Ms. Bakker (08:14:32):
Yes.
Mr. McBride (08:14:32):
Okay. Thank you.
Judge (08:14:34):
Anything further for this witness?
Michael Burt (08:14:36):
No. Thank you, Ms. Baker.
Ms. Bakker (08:14:38):
Thank you.
Judge (08:14:39):
May this witness be excused?
Michael Burt (08:14:40):
Yes.
Judge (08:14:41):
All right. Thank you, Ms. Baker. You may step down.
Michael Burt (08:14:43):
Thank you.
Judge (08:14:44):
All right. Well, does either party need the benefit of the record before we go into recess?
Michael Burt (08:14:48):
No.
Mr. McBride (08:14:51):
No objection.
Judge (08:14:51):
All right. Having both parties say no, we'll go ahead and be adjourned until tomorrow at 1:00 PM. We do not have morning court for this proceeding and we'll start up at 1:00 PM in the afternoon. The court is in
