By Andi Babineau, CNN
(CNN) — Tyler Robinson, the 22-year-old man charged with the murder of conservative political activist Charlie Kirk, will appear in a Provo, Utah, courtroom Tuesday as his attorneys resume their questioning of Utah County Attorney Jeffrey Gray, whose office is prosecuting the case.
This hearing is the second in the defense team’s bid to get the county attorney’s office tossed from the case, citing a conflict of interest.
Robinson’s defense is arguing because the 18-year-old child of one of the prosecutors was present when Kirk was killed during a speaking engagement at Utah Valley University in September, a conflict of interest exists. The defense says the entire office should be removed because “no effort was made to shield their prosecution of this case from his conflict,” according to the motion to disqualify filed in December.
The county attorney’s office has repeatedly denied having a conflict of interest because the 18-year-old, a student at UVU, “did not see Charlie get shot,” and “did not see anyone (in the crowd or elsewhere) with a gun,” court documents show.
The office contends the 18-year-old will not be called as a witness in the case because their knowledge of the incident, despite being present, “is based entirely on hearsay.”
Does the 18-year-old’s presence qualify as a conflict of interest? Here’s what legal experts say.
What constitutes a conflict of interest?
Robinson’s defense cited Utah’s Code of Judicial Administration in their filing, which states attorneys can’t be involved in cases with “a concurrent conflict of interest,” which may include “a personal interest of the lawyer.”
But conflict of interest arguments are rarely accepted by the courts, according to Paul Cassell, a criminal law professor with the University of Utah’s S.J. Quinney College of Law.
“There’s a presumption of good faith for prosecutors, and more broadly the government, and without some clear showing that there is reason to doubt the fairness of the proceedings, generally the proceedings will move forward,” Cassell said. “The chances of this prevailing based on other similar claims that have been presented are very, very low.”
Still, CNN Legal Analyst Joey Jackson says the court will weigh whether the parties “are making decisions predicated upon the merits, the facts, the law, and the circumstances only, and that there are no outside influences that are going to impact the judgments that are being made.”
The defense estimated some 3,000 people were present at the event in their filing and attached declarations from five witnesses, some of whom described the scene as “pure panic” and “chaotic” in their accounts, with one disclosing, “I thought I was about to die.”
The county attorney’s office, in its opposition to the disqualification motion, said comparing the defense’s witness statements to that of the prosecutor’s child shows “just how unnecessary (the child’s potential testimony) is in the case.”
“It’s ultimately going to turn on, how did the (adult child) witnessing that impact, impair, affect the decision, if at all,” Jackson said. “The issue before the court is whether an actual conflict – not a perceived conflict – has been presented and can be established based upon the chain of events.”
If the judge does agree there is a conflict of interest, Cassell said the response would more likely be “disqualifying a person who has been tainted by a particular conflict,” rather than an entire office.
To disqualify the full office would be a serious step, according to Cassell, because the Utah