#my writeup

What were the prejudicial statements?

As with Tyler’s case, the prosecution made prejudicial statements about Baum several times, but they were arguably much more provocative and explicit than anything the Utah County Attorney’s Office (UCAO) has said about Tyler. The first instance was a livestreamed press conference held by then-Utah County Attorney David Leavitt announcing the charges against Baum and that the state would be pursuing the death penalty. These are the statements that were found to be prejudicial by the Utah Supreme Court:

1) [T]he victims in the case were treated like “mere trash” by the alleged killer, Mr. Baum. 2) [T]he alleged killer “is the sort of individual from whom society ought to be protected.” 3) [I]f he authorized the death penalty to be sought in this case, [Leavitt] was “aware that it w[ould] cost Utah County at least a million dollars more in defense funds,” and that if the alleged killer “is given the death penalty, he may never be executed.” 4) [T]he two victims were from Juab County and Tooele County, respectively, and the alleged killer was from Juab County. “[T]here is no connection whatsoever to Utah County other than that's where this crime was committed.” 5) “Had this crime been committed in Juab County, Juab County would be writing a check for a million dollars, if it sought the death penalty.” 6) “If pulling a trigger or injecting a needle would bring [the victims] back, [he] would do so personally.” 7) [H]e would give the power back to the people to decide whether the alleged killer is guilty or innocent and whether he should receive the death penalty. Leavitt then announced his decision to allow the death penalty to be considered in this case. 8) When a member of the press asked whether he was concerned about the lack of physical evidence when there was just one witness, [he] stated that “this witness is credible,” and the “witness’ testimony has been corroborated.” And, 9) “[W]e believe this witness, quite frankly, based on a lot of evidence that the jury will never hear. And so, we know things that the jury will never hear which helps us to believe and strengthens our belief that this man committed [this] murder, these murders.”

That infringes the Utah Rules of Professional Conduct (Trial Publicity, Rule 3.6), which stipulate that no comments should be made about the “character, credibility, reputation or criminal record” of a party, suspect, or witness, and “any opinion as to the guilt or innocence of a defendant.” The Utah Supreme Court identified the statements about the witness (Morgan Lewis) as being the most problematic, because they implied that the prosecution had access to inculpatory evidence that the public and jury would not be aware of. 

After the press conference, one of Leavitt’s deputy county attorneys told him that he should not have made the prejudicial statements, and that he anticipated a defense motion for the UCAO’s disqualification. Leavitt then walled himself off from the case, though he never officially resigned. The deputy ordered an officer to delete the video of the press conference from Leavitt’s official Facebook page. A week later, the judge issued a publicity order.

The second instance was when Sergeant Spencer Cannon, a public information officer for the Utah County Sheriff’s Office, gave two interviews in eight months with local radio station KNRS and discussed the investigation. Cannon also opined on Baum’s character and Lewis’ credibility. Prosecutors (including Chad Grunander, who was assigned to the case at the time) failed to warn Cannon about prejudicial statements under Rule 3.6. They did not monitor Cannon’s communications with the media and did not know about his interviews.

Both instances are pretty clear-cut violations of Rule 3.6. While Chris Ballard’s statements about the bullet testing definitely seem to constitute violations of Judge Graf’s publicity orders and Rule 3.6, they aren’t quite as extreme as Leavitt and Cannon’s statements. 

What actions did Jerrod Baum’s attorneys take?

(It’s a bit harder to write about this case with certainty since I don’t have access to the court docs, only news articles, a Utah Supreme Court brief, and one of the judge’s orders attached to Tyler’s motion. But this is what I was able to gather:)

First attempt: contempt of court

Baum’s attorneys made at least two attempts to seek recourse for the prosecution’s prejudicial statements. The first was in 2020, when they accused County Attorney David Leavitt of violating the publicity order in his press conference. Like Tyler’s team, they filed an order to show cause for contempt of court, which was granted by Judge Derek Pullan. But unlike Tyler’s team, they initially wanted Leavitt to be held in criminal contempt, only later amending their allegation to civil contempt. 

(Side note: I’m glad Tyler wasn’t assigned Judge Pullan. He tried to force two teens to reconcile with their father who sexually abused them and threatened to have police remove them from their mom’s house. The kids barricaded themselves in a bedroom and livestreamed on TikTok in protest. The case is Ty and Brynlee Larson if you’re interested)

Though the conference had been held a week before any publicity order was issued, the defense alleged that the prosecution’s failure to take down a video recording from Facebook after six months constituted a violation—the video accidentally remained up even after a deputy had told an officer to delete it. 

The defense wanted the death penalty off the table if Leavitt was to be found in contempt, which they argued was the most appropriate remedy. Failing that, they were also open to disqualifying the UCAO from the case. 

However, the judge concluded that Leavitt did not consciously violate the publicity order. The video only had 422 views and anyone who had watched it could easily be removed from the jury pool. He also didn’t believe that dropping the death penalty was necessary to address the issue, but as Tyler’s attorneys have said, he didn’t rule out such a remedy if it was supported by fact. Ultimately, he didn’t impose any sanctions on Leavitt or the prosecution team.

My non-expert analysis: I think Tyler’s motion is much stronger. Baum’s motion hinged upon the prosecution’s failure to delete the video. If it weren’t for the video, they wouldn’t have been able to accuse the prosecution of contempt, because the press conference was held before the publicity order. But for Tyler, Chris Ballard made his comments to the media months after the two publicity orders issued by Graf. 

The judge ruled that Leavitt didn’t intentionally disobey the publicity order by leaving the video up. In Tyler’s motion, his attorneys have argued that proof of intentionality is not necessary to a finding of civil contempt, where the person’s conduct is in violation of a court order. Either way, Leavitt’s staff unknowingly left the video up and their intent to delete it was documented, while Chris Ballard actively reached out to media entities and has made no attempt to retract his statements.

Lastly, the judge said that the video was barely known and wouldn’t have had a big impact on the jury pool. But Chris Ballard’s statements were made to prominent national media entities, such as TMZ and USA Today, and were read and reshared internationally. 

Death penalty is dropped 

In the time between the first defense motion and the second, Leavitt suddenly announced that he would no longer be pursuing the death penalty in any capital case in Utah County. That included Baum’s case—at the time, the only active capital case in the county.

While unexpected, this was in line with Leavitt’s track record of progressive policies as County Attorney. Leavitt explained that he thought the death penalty was not worth the expenses and manpower. He said it did nothing to curb crime; education and prevention did. (I don’t know if the defense’s attempt to remove the death penalty was a factor in Leavitt’s decision, but it probably was?)

Second attempt: prosecutorial misconduct

The defense’s second attempt to seek recourse was in 2021, when they filed a motion for sanctions regarding prosecutorial misconduct, citing, among six other claims, Leavitt’s press conference and Sergeant Cannon’s interviews. The defense suggested several sanctions, including dismissal of Baum’s case, disqualification of Leavitt, disqualification of the UCAO, change of venue, and expansion of the jury venire (jury pool). (The death penalty was not mentioned as it had already been removed by Leavitt.)

For Cannon’s interviews, the judge said that the UCAO had not exercised reasonable care to prevent Cannon from making his statements, which constituted negligence but not intentional misconduct. Dismissal of the case or the UCAO were disproportionate punishments, and a change of venue would not be effective as the radio station Cannon spoke to was based in Utah. The only sanction the judge granted was an expansion of the jury pool, which effectively did nothing; he had already done so as the result of a previous defense motion.

As for Leavitt’s press conference, the judge agreed that they were “textbook examples of extrajudicial statements.” Again, he refused to dismiss the case or grant a change of venue. He also did not dismiss the UCAO, saying that Leavitt had informally removed himself from the case after the conference and had not participated in any meaningful way until he filed to drop the death penalty. However, most of Leavitt’s statements were prepared remarks, as opposed to spontaneous comments, which warranted a more severe sanction. Therefore, the judge disqualified Leavitt and expanded the jury pool. This again was more symbolic than actually effective for the defense. 

Further complaint, reprimand, Utah Supreme Court appeal

The defense didn’t just litigate the Leavitt issue in the District Court. They also submitted a complaint to the Office of Professional Conduct. A Screening Panel of the Ethics and Discipline Committee determined that Leavitt had violated Rule 3.6 and recommended that he be publicly reprimanded. Leavitt filed an exception, but the Committee upheld the decision and ordered a public reprimand. 

In 2025, Leavitt submitted an appeal to the Utah Supreme Court, arguing that a more appropriate punishment would have been private admonishment. The court unanimously rejected the appeal.  

Has the UCAO made other prejudicial statements, and what might Tyler’s team do about them?

In their motion to exclude cameras (Dkt. 468), Tyler’s team has also argued that Jeff Gray’s “overly detailed and extensive” probable cause statement, and his reading out of that statement at a press conference, constituted violations of several GRAMA (Government Records Access and Management Act) laws aside from Rule 3.6: private records, protected records, access to records. Gray’s preface at the conference, when he described Kirk’s death as an “American tragedy,” was in the nature of a “death penalty phase closing argument,” hence violating Rule 3.6. The statement contains data on Tyler, his parents, and Luna that constitutes a “clearly unwarranted invasion of privacy,” with no prior evaluation that warranted such an invasion, and disclosed the identities of sources “not generally known outside of government.” For these reasons, the defense claims that the affidavit, probable cause statement, and release of Tyler’s mugshot created a “danger of depriving a person of a right to a fair trial or impartial hearing.” 

But since the press conference was held before Graf’ issued any publicity orders, the defense can’t accuse Gray of contempt in this instance. They might attempt to allege prosecutorial misconduct like Baum’s attorneys later on—Staci Visser mentions the conference in her affidavit. 

Utah County Attorney: David Leavitt vs Jeff Gray

Incumbent Utah County Attorney Jeff Gray replaced David Leavitt in 2023. Why is Gray in this position today and pursuing the death penalty for Tyler? In large part due to the Jerrod Baum case and Leavitt’s decision to drop the death penalty. Gray expressively stated he had never considered running for County Attorney, but decided he had to replace Leavitt. He positioned himself as the no-nonsense, tough-on-crime challenger opposing Leavitt’s attempts at progressive criminal justice reforms. But it gets weirder. There was some intrigue involving petty fights between Leavitt and the Utah County Sheriff’s Office—including an outlandish allegation that he had been “cannibalizing children.” A list of his controversies (went down this rabbit hole for hours, no regrets. Skip ahead if you want):

Dropping the death penalty. Leavitt faced a ton of backlash from the public and legal and law enforcement communities. The families of Jerrod Baum’s victims were only notified shortly before his announcement; they were devastated to learn that Baum would not be executed. The Utah County Fraternal Order of Police and a group of former prosecutors (including Lauren Hunt, who is on Tyler’s case) issued a vote of no confidence in him.

Accusations of cannibalism. A truly bizarre episode. Just weeks before the primary election, the sheriff’s office, led by current Sheriff Mike Smith, re-opened a decades-old “ritualistic child sex abuse” case against a former therapist. The case had already been dismissed previously in 2014. A victim statement mentioned Leavitt and his wife, among dozens of others, as participants in satanic child sex abuse who “cannibalized and murdered” young children. Back-to-back press conferences by the sheriff’s office and attorneys’ office ensued, with Smith and Leavitt trading barbs. Leavitt alleged that Smith had been digging through old files to smear him. He said that one of Smith’s informants was a convicted sex offender who was being charged with rape in Utah County, and who had apparently faked his death and was living under an alias in Scotland. (what??)

In March 2025, the judge ruled to dismiss the case with prejudice, meaning that the charges can’t be refiled—a rare decision. He found that the sheriff’s office and prosecutors had withheld evidence that could have helped the defense. Attorneys involved in the case disputed a "disingenuous" statement made by the sheriff’s office, saying they had made “substantial misrepresentations” about the investigation.

Allegations that he had inappropriately helped his handyman. According to Fox 13 News (obviously biased), Leavitt’s handyman was a passenger when the driver was arrested on drug charges. Leavitt allegedly called a deputy and asked him not to impound the car. He claimed that his handyman was being targeted because of his association with him, even though the man had been in jail multiple times for DUIs. Leavitt’s staff, prosecutors at the UCAO, also said that Leavitt had asked them to treat the man more leniently.

Dismissing stalking charges against his brother’s former LDS mission companion. Leavitt personally involved himself in a stalking case of a man who had donated to his campaign and had been his brother’s mission companion (former Utah governor Mike Leavitt??). The man tried to get Leavitt on his side by presenting a binder of information about the alleged victim to his brother. Leavitt claimed that he thought dropping charges would protect the woman from harassment and a delayed trial, but refiled the charges when that was unsuccessful. 

There are so many other controversies that I can’t summarize them all here, but it’s a morbidly fascinating mixture of deranged shit and reasonable policies lmfao. This man is wack!

Allegations that he used his political connections, including his friendship with a former Ukrainian president, to unethically adopt a Native American child

He disbanded the Special Victims Unit, a team of dedicated prosecutors working on sex crimes and domestic violence. Leavitt said resources could be spread more evenly and attorneys would face less burnout

He pushed for a more progressive approach to crime, including a pre-filing diversion program (allowing low-level offenders to complete community services, classes, or drug treatment in lieu of being charged), and being more lenient on drug and CSAM offenses

He “did not protect” officers assaulted in the line of duty

He investigated prosecutors over attending a basketball game with a defense attorney friend, who paid for their tickets

Jeff Gray

Predictably, Gray’s campaign focused on being the opposite of Leavitt. He vowed to overturn the majority of Leavitt’s criminal reform policies, which he claimed even “liberal San Francisco” knew were a “disaster.” When Bolts Magazine reached out to him for a feature on Leavitt’s opposition to the death penalty, he described it as a “violation of [Leavitt’s] oath.” Reversing the disbanding of the special victims unit was also a priority, even though Leavitt’s change had shown positive outcomes, such as an increase in such cases being prosecuted and charges filed. 

Gray emphasized rebuilding a strong partnership with law enforcement and the sheriff’s office. He was endorsed by Sheriff Mike Smith and the Fraternal Order of Police; a political action committee with ties to the Utah Sheriffs’ Association began fundraising for Gray days after the satanic child sex abuse case was reopened. Gray demanded an apology from Leavitt for writing in a campaign email that Gray had been spreading rumors about the satanic cannibalism thing; Leavitt disputed it and said he had been describing Mike Smith, but that Smith and Gray were essentially acting together.

And on his campaign pages, he was open about his conservative views, such as rejecting a debate invitation from ACLU (an “agenda driven left-wing organization”) and supporting the overturning of Roe v. Wade. (Doesn’t come as a surprise at all, but he seems pretty damn nasty.)

Gray won 73% of the vote compared to Leavitt’s 27%. Understandable, given the drama around Leavitt, and the fact that there was no other candidate. As far as we can tell, Gray is much less likely to go easy on Tyler. He has signalled that he’s more open to plea deals than Leavitt, who preferred to bring cases to trial, but he might view Tyler's case differently than the sexual assault cases he was discussing in that context. In the time before the Kirk shooting (Jan ‘23 to Sept ‘25), he also didn’t seek the death penalty in any new case—though he said his office would seek it again in the retrial of Douglas Carter, a man whose conviction and death sentence were vacated by Judge Pullan (same judge as in Baum’s case) and by the Utah Supreme Court in May ‘25 after revelations that law enforcement had seriously mishandled the original investigation. 

Grunander's movements 

Grunander was at a conference with Jeff Gray in Layton, an hour away from Orem. It was during lunch break when he received the first handful of messages from his daughter in his family group chat. Grunander was alarmed and immediately told Gray. He called his daughter at 12:29 pm for one minute to make sure she was okay. A few minutes later, he broke the news to his colleagues at the Utah County Attorney’s Office, including prosecutors Chris Ballard and Dave Sturgill; media had not yet reported on the shooting. These calls took place around 12:44 pm.

Around 10-15 minutes later, Grunander left and drove towards UVU. Gray left 20 minutes later to do the same. Gray originally wanted to have lunch first, but decided his "mind was not on it" and he "needed to go there." The two men met up at an In-N-Out in Barnes and Noble, and drove together in Gray’s car to UVU. Gray claims he didn’t enquire about Grunander’s daughter during their journey.  

When they arrived at UVU, the campus had been closed off and all the students evacuated. Grunander went on the Losee Center rooftop to examine what he called the “shooter’s perch” and determine how far away his daughter had been from Kirk. He also helped his daughter look for her book bag, took a photo of it lying where she had left it, and asked an SBI officer if he could retrieve it after the scene had been cleared. The men stayed on the campus until around 9-11 pm. In the following days, he communicated with Gray about the bag as well as Sturgill, who was working on the scene.

Text messages 

The messages were sent in Grunander’s family group chat, including his wife, daughter, sons, and his daughters-in-law.

The first messages were sent when the daughter entered the building right after the shooting. Then after she learned that Kirk was the victim of the shooting, she sent further messages clarifying that fact. 

Death penalty

Gray later found out that two young members of his LDS ward had also been present at the shooting, with one of them being "shook up" by their experience, though he claims he is only close with one of the students’ families. 

Gray testified that he had been planning to seek the death penalty even before Tyler was arrested. (Grunander separately said this is unusual and the decision to seek death is normally made after details about the accused are known.) He was present at press conferences with Utah Governor Spencer Cox when Cox repeatedly said that he wanted to pursue the death penalty. Gray said that he shared his own plans to seek death with Cox, and he did not clarify to Cox that this decision was his alone, not the governor's.

After Tyler was arrested, Gray had "informal" discussions with his team about whether or not they would be filing a notice of intent to seek death, even though his mind was already made up. He didn't exclude Grunander from any of these conversations.

Gray ran for Utah County Attorney on a campaign promise to seek the death penalty in all appropriate cases. In a previous case, State v. Michael Aaron Jayne, he claims that the delay (5 months) in announcing the decision to seek death caused rumors among the press that it would not be sought, resulting in emotional "hardship" and "misinformation." In Tyler's case, he was even more concerned about publicity, which is why he announced the intent to seek death on the same day charges were filed.

Grunander is the lead prosecutor on the Jayne case, and he said that it's typical for Gray to consult him on whether or not to seek the death penalty in such cases. He agreed that in the majority of cases, the intent to seek death is announced after the preliminary hearing, not concurrently with the filing of charges as with Tyler.

Issue of the conflict

Gray said his office doesn't have a written policy that stipulates how to deal with potential conflicts of interest, or evaluate whether a prosecutor needs to be screened off from a case. He didn't think there was a need to contact any expert or organization for advice, including the Utah Attorney General's office, the Utah State Bar, the Utah County and District Attorneys Association, and the Statewide Association of Public Attorneys and Prosecutors, the latter two of which he is president. He didn't consult any official documents but relied on his "25 years of knowledge of conflicts." Before the Feb 3rd hearing, when the defense asked the prosecution to provide a memo explaining how they determined there was no conflict, Gray provided no legal analysis or justification for his decision.

Grunander had been having both individual and group conversations with other prosecutors on his team about this potential conflict. On September 30th, Grunander headed back to UVU with a UCAO investigator, Cole Christensen, to determine how far away his daughter had been from Kirk when he was shot. He took a photo of a Fox News broadcast, which showed his daughter's bag in the amphitheater, to figure out her position (I believe it's the dark blue backpack in the middle). He ran a tape measure from that location to Kirk's location and found that the distance was 85 feet.

On Oct 1st, Grunander emailed the defense alerting them his daughter's presence at the UVU event. He explained that he didn't think this created a conflict for him, but that it was his practice to disclose possible arguments with respect to a conflict. He said that his "disclosure, our abundance of caution, our professionalism, integrity" should not be seen as a concession that his team believes there's merit to the alleged conflict.

On Dec 18th, right after the defense had filed their motion to disqualify, Gray returned to UVU with UCAO Sgt. Cole Christensen to investigate whether Grunander's daughter was in the shooter's field of view. They determined that she would not have been visible, was not in the shooter's line of fire, and therefore had not been in the zone of danger. As Tyler has been charged with aggravated murder, which stipulates that the perpetrator must have knowingly put someone other than the victim at a great risk of death, this rules out the daughter from being referenced in this charge. Richard Novak pointed out that Gray had made himself a witness to evidence through this intervention.

On Jan 10th, the state filed their opposition to the defense's motion, written by Gray, which extensively references the daughter's statement as to what she saw. Gray claims he hadn't talked to her or helped shape her statement, and that he doesn't know if McBride, who conducted the interview, had had any conversations with Grunander about it.

Later developments

The past two hearings have been spent questioning witnesses as to the motion to disqualify. Utah SBI Agent Dave Hull was also questioned so the state could prove that Grunander's daughter was not a material witness to the shooting.

On Jan 16th, the defense announced their request for the motion to disqualify to be heard by the Utah Attorney General's office and not the UCAO, but this was denied in the last hearing.

I'm just going to paste the defense and state's closing arguments here, sorry for any typos or mistakes.

Defense (Richard Novak)

Thank you. Your Honor, there are legal issues and there are factual issues that we think that the Court needs to look at very closely. I would ask the Court because I only have 10 minutes to look at both the briefing in the original motion, and I will point out some specific cases that we think the Court should pay attention to, as well as the briefing in the, what I'm going to call the renewed request. And they're both informative. The briefing and the renewed request doesn't just go to the question of should this court encourage, that's the language that the statute hints at, the state attorney, the County Attorney to refer this to the Attorney General, but it also refers to when a trial court does or does not abuse its discretion with respect to recusal.

The last witness—and I'm going to go with the principle of recency here—the last witness's primary purpose was to focus on this question of whether the adult child, student, at UVU is what the state has referred to as a material witness or a critical witness. And that is actually, either intentionally or unintentionally, a distraction from the real question here. This is not a question of whether in order to prove its case the state needs to call as a witness a family member of the prosecution. Okay, that could in another situation be a source of a conflict. But the issue here is that the most experienced and most senior prosecutor in the office other than the elected county attorney, Mr. Gray, should have been walled off from this prosecution until this court had an opportunity to consider whether disqualification is necessary. And it is important to note a couple things that Mr. Grunander said. One of them was that he'd never seen in his experience a decision to seek the death penalty made without regard to information about the accused. And there's a hint there that there was an emotional response to Mr. Kirk's death, which there's a strong implication creates an appearance of impropriety.

And so this Court doesn't have to make a finding that there's a conflict of interest, an actual conflict of interest. What the standard says, and that's the standard that Mr. Gray read into the record from the organization of Utah prosecutors that he's the president-elect of, which refers to the public perception of the integrity of the prosecutor's office and the public confidence in the handling of the case. Okay. So that was standard 1.3-3C. The failure of Mr. Gray to at least temporarily wall off Mr. Grunander to seek guidance from any other prosecutor, ethics expert, the Court, the State Bar, people who are leaders or members of SWAP, the Attorney General's office demonstrates both a very and an inappropriately casual approach to this issue. And it also demonstrates that what Mr. Gray did is he put his need for Mr. Grunander to lead this case ahead of the ethical consideration of whether that might create an appearance of impropriety. Not an appearance in Mr. Gray's opinion, not an appearance in Mr. Grunander's opinion, but an appearance in the public eye. And that's actually your Honor's project, if I may, is to determine what a reasonable member of the public would think of this scenario.

The other thing that is important here is that we are dealing with a proceeding where the Eighth Amendment to the United States Constitution and the parallel constitutional right in Utah require, and this Court has heard it already and the Court’s going to hear it over and over again, a heightened standard of reliability. This is not just a court proceeding and it's not just a criminal proceeding. This is a capital proceeding which is, at this point in time, sort of almost the only proceeding where the Eighth Amendment comes into play, and so this Court needs to view the appearance of impropriety under this heightened standard of reliability. 

A couple Utah cases that I think that this Court, we would ask this Court to look at very closely. State v. McClellan, Utah Supreme Court 2009 Utah 50; State v. (?) 2014 I'm sorry. Yeah, that's a court of appeal decision. 2014 Utah appeals 207. Mr. Gray should have implemented a firewall and he didn't and that has created this problem. And then what we see is isolating Mr. Grunander's daughter from the investigation, isolating her in some way so that she hasn't provided a statement, she hasn't provided videos until we bring this issue to the Court’s attention. The decision as to what charges to file, the decision as to whether or not to seek the death penalty, should never ever have been made in consultation with Mr. Grunander, even if he's the most experienced homicide prosecutor in the office, even if he has one of the longest tenures, and even if it's Mr. Gray's ultimate decision because now we don't really know and the Court doesn't know and the Court just can't defer to the prosecution. That's the whole point of the Court having the supervisory power over this issue.

What influenced Mr. Gray? I would also point out that Mr. Gray did not disclose until asked while under oath that two members of his faith community were also present there. That was not disclosed to us when he found out about it, and that he has a relationship with the family of some young person who was also negatively impacted. 

This m line of sight analysis, this pie that has been, PIE, that has been diagrammed is not the question. That is not the question. The question is whether Mr. Gray should have isolated the prosecutor whose child was there, and I say this with all due concern and respect, could have been injured in any number of ways. People could have been hurt leaving the scene. And I'm not saying that in any way to minimize the effect that that experience had on Mr. Grunander and his family. I think as I said in court last time, I've been through this where I learned that my child is somewhere where there was a shooting and until I knew my child was safe, that was, you know, an overwhelming emotional experience. So, the problem is that Mr. Gray approached this in an incredibly casual way. There isn't a single memorandum he testified to this, documenting the process of whether there's an actual conflict or an appearance of conflict. The mere disclosure of it to us and us bringing it to the court does not wash this clean. That is our concern. I also want to cite the Court because I'm running out of time, to a decision that is not a Utah decision, but it's cited on page 12 of our motion, which is Tate 925 Southwest 2nd 548, a Tennessee decision where basically the Court says where there were no screening procedures and the prosecutor as to whom there was an appearance of impropriety maintain the role of a supervisor and there was open discussion of the case with him. There should have been a disqualification and what the Court did there is it disqualified the entire office.

So this problem could have been avoided if Mr. Grunander had been screened off, if Mr. Gray had sought this Court’s guidance early. The PE– the state, I'm sorry, they were in court on September 16th. This could have been brought to the Court’s attention in September. Counsel were appointed shortly thereafter. We could have addressed this a long time ago and now frankly it's too late. So we understand that there is pressure on the judicial system to move this case expeditiously. There is also a countervailing and, we believe, stronger need to make sure that there's a heightened standard of reliability that there is no conflict and that there is no appearance of conflict. And if that takes a little bit of time for another prosecution office to get up to speed, the investigation's going to continue. The discovery production is going to continue. The lab work's going to continue. None of that is going to change. So, we would ask the Court—I'm not reserving any time in rebuttal—I'm going to ask the Court to grant the motion, both parts of it, which is to make a finding that Mr. Grunander should have been walled off and that Mr. Gray's failure to do so, and sort of the casual way that Mr. Gray approached this whole thing, requires unfortunately the disqualification of his office and the appointment of a new group of prosecutors to be responsible for this case. 

The case will continue. What we are asking the Court to do today does not in any way change the fact that Mr. Robinson is charged. He's charged with an aggravated homicide. We all have to deal with that. But we have to deal with it in a way where there is no question that the decisions that have been made or decisions that will be made in the future, which is some questions that were brought up to Mr. Gray by his own counsel, and the public's confidence in the outcome of this case are tainted by what should have happened and did not happen. And I appreciate the Court’s time.

State (Ryan McBride)

 I know everybody in here is going to blame me if they don't leave in 9, which is 5:00. So, the reality is, your Honor, the adult child is not a witness here. She didn't see Charlie Kirk get shot. She didn't record him get shot. She didn't see his wound. She didn't see him get carried off. She’s just not a witness. And as a result, there's really no conflict here.

Now, I understand that conflicts go beyond just that, but most of the cases that we look at where there's some kind of conflict are where there's confidential knowledge that has been obtained by the prosecutor, right? A defense attorney becomes a prosecutor and now has confidential knowledge about that person, right? That's the typical conflict we see, has some kind of proprietary or financial interest, right? That's the kind of conflict we usually see. Occasionally there are personal conflicts, but there's a lot of good case law that talks about what kind of conflicts constitute that personal interest. And I think the best case law on this is cited in our opposition to the renewed motion to refer the matter. And in that case, State v. Newman, the Court found— this is a Missouri case. The Court found no conflict of interest in prosecuting a defendant for murder even though the prosecutor had done business with the victim, knew him personally, and served as a pallbearer at the victim's funeral. In Gwinnett County, District Attorney nor his Georgia office had a conflict of interest even though his chief investigator dated and later married the victim in a case that the office was prosecuting. In Kansas, prosecutor's office did not have a conflict, even though the defendant threatened to blow up the very courthouse and also that also housed the District Attorney's office.

I mean, these are cases where the prosecutor has a close relationship with the actual victim of the crime. Look, if Mr. Grunander were related to Charlie Kirk, we would acknowledge there's a conflict here, right? But we're not even close to that. The adult child is not even a witness in this case, is not a witness to the murder. Is the child a witness to the circumstances? Sure, but so are 3,000 others, as well as dozens of video recordings. She's not a witness. She's not necessary in this case. And as a result, there's no conflict here. 

Now, is he going to be motivated because she was present? Is he some kind of, somehow going to be motivated to do something he otherwise would not? Well, again, maybe if she were injured, maybe so. Maybe there would be a good argument there. Maybe. It still doesn't rise to the level of these cases that I've talked about, but that's just not the fact. She has not been traumatized. She has not had to seek therapy. She has not had to miss class. She has, it's not affected her friendships. As a result, the idea that Mr. Grunander is going to be motivated by some kind of retribution for what happened to her is just flatly false. The idea that the defendant was charged for killing someone because a prosecutor's child was present when it happened is just, it's almost laughable. He's being prosecuted for killing someone because he killed someone. At least that's what the evidence will show, we believe.

The idea that he has been, that the death penalty has been elected because a relation of a prosecutor was there is also is just laughable. It's because someone was shot and killed. That's why the charges were brought. I just don't think that that proposition is palatable at all. The evidence is what this case was charged on, both at the charging level and at the death penalty level. None of this was motivated because of some relationship. And I think that anybody who looked at this would agree that you don't charge someone with murder because a witness was affected by it. You charge someone with murder because someone was killed, right? 

The defense has tried to elevate the standard here by looking at best practices, the SWAP's statewide association of prosecutors best practice. Even so, I think it's been misstated. The standard says that when there's an appearance of conflict, the prosecutor should, I quote, “consider recusal.” Well, that's the question. They should consider it, right? It doesn't say it mandates recusal or disqualification. And that's not even the ethical standard that this court goes by. That's the best practice. And the best practice was followed in this case because once that once that fact was known, there was a discussion. Of course, it was disclosed immediately. It was disclosed five days after defense counsel was appointed. The idea that the child was isolated is just flatly false. She just was not a witness. and the followup with her showed as much.

The standard is is there a significant risk that representation of the state will be materially limited by a personal interest of the lawyer? In this case, the decision to prosecute and the prosecution of this case will not be limited in any way. Moreover, if anything, the interests would align regardless. The motivation here is clearly not because of the presence of this child. It's because Charlie Kirk was murdered in front of everybody. She's not a material witness. Everybody knows Charlie Kirk was shot and killed and murdered brutally. Everybody knows that. I don't think that's going to be what this case is about. It's going to be about identity. And neither the child nor any of the other 3,000 witnesses present really have a whole lot to say about who this was that did that did the shooting.