Tyler Robinson attorneys push for judge to hold prosecutors in contempt of court for giving interview on Fox News after defense motion led to fake news on bullet, gun

The defense argued that the court has an obligation to set an evidentiary hearing on the matter. Defense attorney Richard Novak said that "the communications, the events, the conversations, the state of mind of the various members of the prosecution team with respect to the decision for [Christopher] Ballard to go on what I will call a media tour is central to not only the core question of whether there’s been a violation of the court’s order, but frankly the egregiousness of that violation."

The defense in April filed a motion directing Utah County prosecutors to "show cause" for "why they should not be held in civil contempt" for allegedly violating the court’s Pre-Trial and Trial Publicity Order. The motion relates to statements made by Attorney Christopher Ballard to the press about an ATF bullet fragment analysis report discussed in the defense’s motion to delay the preliminary hearing, which had come back as inconclusive. Ballard had made statements to TMZ, Fox News, USA Today, and Politifact.

The defense had requested office communications regarding decisions to speak to the press, among other things. Novak told Judge Tony Graf, "we think that this court can’t really fulfill its statutory duty to investigate without the parties, without the court and Mr. Robinson knowing what communications the Utah County Attorney’s Office had with various media outlets. What the nature of those conversations were, what the nature of the internal conversations were concerning whether Mr. Ballard should go on Fox & Friends and have a nationally and internationally televised interview, whether the Utah County Attorney’s Office should issue emails to media entities."

Judge Graf asked whether the violation of the order was the news interviews, or "what happened behind closed doors." Novak said that the violation "is what happened. The violation is extrajudicial statements that have a substantial risk of impacting proceedings." He said the question is "did Mr. Ballard go off on his own and do this all by himself, or was there a management decision to go do this, but the conduct that is a violation of this court’s orders is to make extrajudicial statements about forensic evidence, not only what the forensic evidence is and the testimony will be, but if the court looks closely … Mr. Ballard commented on what future versions of ATF and FBI reports will say after future testing is done, as if he somehow had a crystal ball as to what the evidence ultimately will be."

He also said that Ballard made statements that "clearly are expressions of opinion as to Mr. Robinson’s guilt." He added, "I mean, this is textbook. Don’t go out and say these things extrajudicially."

The state argued that "when there is pervasive media that misrepresents evidence, misrepresents the fact, and creates a material risk of prejudicing the rights of a party," an attorney has the ability to "correct those statements, and in fact they have a duty under a duty of zealous advocacy for the client to respond."

He said there was a "tidal wave" of media mischaracterizing the evidence, which could mislead the potential jury pool "as to what the evidence was." He added, "an attorney cannot stand idly by while his client’s legal rights are undermined and trampled upon by mischaracterizations of the evidence, by misrepresentations of the evidence, by misleading media reports. Instead, the attorney has the duty to protect his client’s legal rights by correcting that misleading statement."

He said he did not place blame on the media for the mischaracterizations, saying that the reports from the media are repeating "from the defense counsel’s misleading statements. And I disagree wholeheartedly with defense counsel's statement that their statements and their pleading was not misleading, because it absolutely was."

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"In defendant's motion to continue the preliminary hearing, the defendant stated this: 'the ATF was unable to identify the bullet recovered at autopsy to the rifle allegedly tied to Mr. Robinson.' So, let that sink in. That's the statement included. The ATF was unable to identify the bullet recovered at autopsy to the rifle tied to Ms. Robinson. That statement is not inaccurate … but it's incomplete. It’s not the whole truth. As a result, it’s misleading."

He said that the statement had omitted that the analyst for the report declared that the bullet was a .30 caliber bullet, which "excludes a whole bunch of weapons from possibly being the weapon in this case." Left on the list is the .30-06, "the weapon that was found at the scene."

He said it was not surprising that the media "covered it the way they did, because any reasonable reading of those statements … leads to the conclusion, which the media drew, which is that the bullet does not match the gun."

He said as a result of the reports, the office had a duty to stand up for their client, in this case the State of Utah. "Mr Ballard didn’t start this, right? The state didn’t start this. This began because of a pleading the defense counsel filed in the court." He said Ballard made "a statement that accurately characterized the evidence" and "told the media in these interviews exactly what the report said."

Among the statements given to the press, Ballard told TMZ, "Generally when a bullet fragment analysis comes back as inconclusive, that means the fragment did not contain enough detail for the examiner to say one way or the other. There’s just not enough there to determine whether the bullet was fired by a particular firearm. We have ample evidence to demonstrate beyond a reasonable doubt that Tyler Robinson committed this murder and we will present some of that evidence at the upcoming preliminary hearing – and then we will present all of that evidence at the trial."

He added in the statement, "He is presumed innocent. The ultimate decision will be up to the jury—we believe we will be able to overcome his presumption of innocence."

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