Attorneys for Tyler Robinson urge judge to block death penalty over prosecutor’s comments to media about ballistics evidence

By Andi Babineau, CNN

(CNN) — Attorneys for Tyler Robinson, the man accused of killing Charlie Kirk, asked a Utah district court judge to take the death penalty off the table over comments a prosecutor made to the media about a bullet fragment found during the autopsy.

Robinson’s attorney, Richard Novak, argued comments made to several media outlets by Christopher Ballard, a Utah County Attorney’s Office spokesperson who is also a prosecutor on the case, violated a pretrial publicity order.

The defense asked the judge to block prosecutors from seeking the death penalty if prosecutors are found in contempt for the comments.

In several media interviews at the end of March and beginning of April, Ballard spoke about an inconclusive ballistics report referenced in a defense filing. Ballard later told the court he had included remarks indicating Robinson is presumed innocent in those interviews.

Novak called the comments “extremely reckless.”

“I find no credibility in Mr. Ballard’s sworn testimony that he only intended to communicate with the media generally about bullet fragment analysis,” Novak said.

The public killing of the prominent conservative activist on a Utah university campus last September set off an avalanche of misinformation. Robinson’s attorneys have repeatedly raised concerns about news coverage of the high-profile case potentially harming their client’s right to a fair trial.

Ballard testified Friday he does not believe his comments violated the order, which prohibits the parties from making public statements about the case, except under certain circumstances. He said the defense misrepresented the results in a public filing, and his comments were made to clarify what the results meant.

“The goal of these interviews was to respond to the specific media inquiries that were being generated by the misinformation” in the filing, Ballard said.

Comments centered on bullet fragment finding

The defense filing Ballard spoke to the media about – a motion to continue the preliminary hearing filed on March 27 – states the Bureau of Alcohol, Tobacco, Firearms and Explosives “was unable to identify the bullet recovered at autopsy to the rifle allegedly tied to Mr. Robinson.”

Prosecutors argued the defense’s statement in the filing omits an important piece of the report’s conclusion: the ATF was also unable to exclude the bullet as coming from the rifle, and say that is what Ballard was trying to clarify in the media.

Ballard and Utah County Attorney Jeffrey Gray, who also testified Friday, repeatedly pointed to a professional rule, referenced in the order, which allows attorneys to comment on public information when they believe there is a possibility of prejudicial pretrial publicity.

If the court does find Ballard in contempt, “the number one remedy should preclude the state from seeking death against Robinson,” Novak argued.

Other possible penalties include attending a continuing education program or referral to the state bar association, Novak added.

Prosecutors had announced in September last year they would seek the death penalty in the case against Robinson, who faces charges including aggravated murder, felony use of a firearm, obstruction of justice and witness tampering. He has not yet entered pleas.

During Friday’s hearing, Judge Tony Graf also heard arguments on whether hearsay evidence prosecutors plan to present would be allowed during the preliminary hearing beginning on July 6.

Defense attorney Michael Burt argued a video deposition of a key witness should not be admissible, as the witness could not be subject to cross-examination.

Ballard argued the defense is not entitled to cross-examine witnesses, as they are during other types of hearings, because the preliminary hearing has the limited purpose of establishing probable cause to bring charges to trial.

“If this court granted the defendant’s motion, it would be going where no other court has gone before,” Ballard said. “This court would be the first court to find that the Sixth Amendment right to confrontation applies at a preliminary hearing.”

The court is expected to issue its rulings on both matters on June 22.

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