Charlie Kirk murder: Tyler Robinson preliminary hearing scheduled to start this week in Utah

[00:00:00] Andy Mack: Welcome back in to Live Now from Fox. I'm Andy Mack. All eyes on Utah starting tomorrow as for the first time, members of Charlie Kirk's family will be in that courtroom with defendant Tyler Robinson as the five-day preliminary hearing set to begin as prosecutors seeking the death penalty will argue that the man charged in the killing of the conservative activists should stand trial for murder. This coming in from the New York Post is Erica Kirk set to face her husband's killer, accused killer Tyler Robinson in court for the first major test of evidence. Let's be joined right now here on Live Now from Fox by criminal defense attorney Dwayne Cates. Dwayne, thank you so much for joining us. This is going to be a five-day preliminary hearing. What could we expect? Evidence will be included. What should we be keeping our eyes out for this week? [00:00:54] Dwayne Cates: You know, they're going to put on almost all the evidence they have, but it's going to be truncated. They get to hearsay things in. So instead of Tyler Robinson's, you know, roommate coming in and testifying, an officer is going to testify about what Tyler Robinson's roommate stated. Okay, so there's going to be a lot of evidence. And it's a shortened proceeding because all they really have to do is show probable cause, which is a really low bar. It's that he should be held to account for this, that there's some evidence that he did it, and there's enough evidence to go forward. It's not a conviction. It's not a trial. They're not going to do everything. They're going to put on the forensics. They're going to put on, you know, their expert witnesses. They're going to show video clips. You know, a five-day preliminary hearing is a long preliminary hearing. [00:01:47] Andy Mack: And this is not the trial yet, but it feels somewhat similar. How much could this be a benefit for the defense to see what the prosecution will lay out? [00:01:57] Dwayne Cates: Well, it's always a benefit to the defense because they get a preview of what the state's case is going to be and how they're going to present it and how the witnesses present and whether they're good witnesses or bad witnesses. Now, a lot of times, especially in my jurisdiction, these things go to grand juries, which are done in secret with a prosecutor and a cop, okay? And they don't get to put public evidence on publicly. I think it's a good thing that this evidence is going to come in publicly. I think it will either, it may quell some of the conspiracy theorists, rumors that are going around, but we'll see. Let's see what the evidence is. [00:02:36] Andy Mack: Yeah, that is so very true. And they do know that this will be live streamed. So it will be all out there in the public. I also want to ask you about some of the key pieces of evidence that we might see. As authorities have said, DNA consistent with Robinson was found on the trigger of the rifle used to kill Kirk, the fired cartridge casing and two unfired cartridges and a towel used to wrap the rifle. How key might be DNA, especially in this pretrial motion? [00:03:04] Dwayne Cates: Well, DNA, DNA is going to be really important. I mean, you know, if Tyler Robinson's DNA is on the trigger. Now, they always say consistent with, because it comes out in statistics, they will never say it is absolutely on there. They'll say there's one in four billion chance that it's somebody other than, you know, other than Tyler Robinson, is how they'll express it. But the DNA evidence will be powerful. And if the ballistics match the bullet and everything that happened and then his DNA is on the trigger, that's clearly enough for probable cause. You know, again, there's always ways to challenge it. There's always stuff you can do. But, you know, that's pretty damning. [00:03:46] Andy Mack: And we also know that there'll be conversations around the death penalty. And in Utah, it's only when a crime has aggravating circumstances, as prosecutors will argue, Robinson case that Kirk shooting endangered others in attendance. We do know that this was very well attended. There are plenty of people there. How do they prove that? How much weight does the prosecution try to move with the putting the death penalty on the line? [00:04:12] Dwayne Cates: Well, I mean, their proof is, is the video of the assassination. I mean, there are people all over. There's people in front of him. There's people behind him. There's people on each side of him. So it is a possibility that somebody else other than the intended target could have gotten hit. So I don't know if that's enough for the death penalty in Utah or not. But, you know, you know, just the fact that it was a pre-planned, you know, aggravated murder of somebody that was a high profile person in public, I think, you know, they may get the death penalty. [00:04:44] Andy Mack: What is the defense's role in this place, in this preliminary hearing? Will they have an opportunity to cross-examine some of the witnesses? Do they want to keep things close to the vest so they don't show their kind of game plan, their strategy too much, too? [00:05:01] Dwayne Cates: You know, they've got to present pretty much everything that they can. I mean, if this is a death penalty case, it's going to be scrutinized for years and years and years to come. And so they need to do absolutely everything that they can at every single stage. OK, so there's no sandbagging in death penalty cases. You've got to come out with what you have going on at every stage. Otherwise, you know, if he's convicted, you know, then he can say, well, geez, my attorneys, you know, were defective. They didn't do this at the preliminary hearing and they should have. [00:05:38] Andy Mack: That is a very good point. And this is a very high profile case, even though this isn't the actual trial. It may feel like this. And we do know the widow of Charlie Kirk, Erica Kirk, will be in attendance as well as potentially Charlie Kirk's family. And we also know recently that they were held in contempt, the prosecutor, for publicly stating some of what's going on in this case. How much is the judge walking a fine line with all the eyeballs on it, with all the potentially security around this case? [00:06:09] Dwayne Cates: Oh, it's going to be it's a big it's a big deal. I mean, you know, the judge has got it. The judge has got to be really careful to make sure there's not not even not even the hint of impropriety on on his part, whether whether or not it's it's admonishing, you know, witnesses or victims or anybody in the courtroom. You know, you've got to establish control of the courtroom. OK, and you have to go from there. [00:06:36] Andy Mack: And I want to ask, because we do know that this is all publicly out there. This will be live streamed. We will have to go eventually and pick a jury for this case. Do you think there's any concern in their eyes that someone that potentially be above the jury pool will be watching this as well? [00:06:53] Dwayne Cates: Absolutely. And that's always a problem. It's a problem in every high profile case. It was a problem in the O.J. Simpson case, in the in the Jody Arias case. Every case, there's you know, there's problems with with with poisoning the jury pool or, you know, getting the jury pool on your side. And, you know, and and and lawyers try to affect it to their benefit. The bottom line is, you know, when you're picking juries, even if it's a high profile case, you're going to find people say, I never even really heard of this case. Now, hard to believe. But and then then you got to watch out for jurors that lie to you to get on the jury because they want to vote one way or another. And that and believe it or not, that happens a lot. [00:07:38] Andy Mack: Does that happen more when it's such a high profile case? [00:07:41] Dwayne Cates: Oh, yeah. You know, they want to be famous. They want you know, they they want to write a book. They you know, they want to they want the interviews afterwards. And, you know, if they're the deciding vote or the vote that turned it into a hung jury or whatever it is, their agenda is, you know, that they relish in the moment. And you got to really work to try to weed those people out. [00:08:03] Andy Mack: It has a very good point, but obviously also very unfortunate. The jury, the prosecution, the defense also trying to make sure that does not happen. I do want to ask you because we know and you mentioned hearsay will be allowed in this preliminary hearing. Evidence will be presented between now and the actual trial. Will there be any other evidence? Can that still come about any other witnesses or evidence? Can there be changes between now and then? [00:08:29] Dwayne Cates: Oh, absolutely. That happens all the time because, you know, you don't know what you don't know. So if if if a if a witness pops up somewhere for the defense or the prosecution, I mean, they they're deadlines for disclosing witnesses and disclosing evidence. And it's not all before the preliminary hearing. There's plenty of time to flesh this case out. [00:08:50] Andy Mack: Plenty of time. All right, Dwayne, anything else we're missing? Because five days is long, somewhat unusual. What else will they have for us? [00:08:58] Dwayne Cates: I'd be surprised if it goes to full five days. I mean, attorneys make estimates and they we generally estimate longer than we think it's going to take because last thing we want to do is is is be out of time. So but but, you know, it's going to be a barn burner. And it's it's it's it's good that the public gets to see what happens. [00:09:20] Andy Mack: So very true. Live streams and we'll have it full coverage here on Live Now from Fox as well over the next five days and then whenever the trial commences. Dwayne, thank you again. Appreciate your time here on Live Now. [00:09:30] Dwayne Cates: Thanks for having me on.