Now that Utah prosecutors are officially pursuing the death penalty against Tyler Robinson for Charlie Kirk’s death, let’s examine what they need to prove and what Robinson might argue at trial and on appeal if he’s convicted — a process that could take many years to play out.
Robinson has been charged with aggravated murder under a Utah state law that lays out various factors that can make a defendant eligible for capital punishment. Proving that he intentionally killed Kirk wouldn’t alone make this a death penalty case. The additional factor cited by Utah County prosecutors is that Robinson allegedly “knowingly created a great risk of death to another individual other than the deceased individual and the actor.”
At first glance, it seems to be a matter of common sense that shooting someone through a crowd — as prosecutors allege Robinson did — creates a great risk of death to other people in the crowd, especially those closest to the intended target. Indeed, Robinson’s case could wind up being as straightforward as that.
But the “great risk of death” factor has been the subject of litigation in the state, so it’s worth looking at how its highest court has analyzed the law, which it could wind up analyzing again years from now in this new case. Robinson’s case is at the very preliminary stages, and he will have an opportunity to contest the charges. He is presumed innocent until proven otherwise.
In a 2019 case called State v. Sosa-Hurtado, Utah’s Supreme Court affirmed the aggravated murder conviction of Yelfris Sosa-Hurtado. He argued on appeal that the evidence was insufficient to convict him for placing another person at “great risk of death” when he killed Stephen Chavez at a single-room smoke shop in Salt Lake City. Stephen was standing behind one counter and his father, Isabel, was standing behind another. Sosa-Hurtado shot at Isabel but missed, shattering a glass case that hurled glass and wood into Isabel’s leg, and then, with his back to Isabel, fatally shot Stephen.
Affirming Sosa-Hurtado’s conviction, the court reasoned that the “knowing risk was created most obviously when Sosa-Hurtado fired his assault rifle directly at Isabel” and that the jury could have reasonably concluded “that such a shot was an element of the ‘circumstances’ of the murder of Stephen.” The court noted there was “temporal and spatial proximity and an actual threat against Isabel,” as Sosa-Hurtado “fired at Isabel seconds before he shot at Stephen, he shot at Stephen when Isabel was close by, and there was both an intent to harm or kill Isabel and an act specifically directed at Isabel.”
Thus the court concluded that Isabel was in the “zone of danger” when Sosa-Hurtado killed Stephen.
The known facts of the present case are different from Sosa-Hurtado’s, but a jury and the courts could similarly conclude that the alleged shooter put others in the “zone of danger” when he shot Kirk.
Robinson’s case is different in that he allegedly shot at, and seemingly only intended to shoot, one person. But the question isn’t what happened in retrospect but rather what was at risk of happening. Prosecutors will therefore argue that Robinson knowingly created that great risk when he shot Kirk. They apparently have this risk factor in mind in laying out their allegations, writing in the charging document filed Tuesday:
Mr. Kirk’s team members were very close to him on his right and left, as well as some behind his canopy and others at various close locations near him. The large crowd surrounded Mr. Kirk on three sides. Temporary metal fencing separated attendees from Mr. Kirk by only a matter of feet. Directly above and behind Mr. Kirk was the UVU Hall of Flags, an indoor walkway spanning several hundred feet with floor-to-ceiling glass windows which overlook the plaza where Mr. Kirk was seated. People were in the walkway at the time of the shooting.
Similarly on the proximity point, the state alleges that the bullet’s trajectory “passed closely to several other individuals beside Mr. Kirk, including the questioner who was standing directly in front of Mr. Kirk.”
Keep in mind that these allegations are one side of the story, and that the prosecution has the burden to prove its case beyond a reasonable doubt. But putting aside that much of the incident was captured on video for all to see, what could Robinson possibly argue in defense? One argument could be that, by targeting Kirk, he specifically intended not to shoot anyone else and, therefore, that no one else was at risk. It might not be a winning argument, but it could be the argument (or one of them) that his lawyer is left with. Had Robinson truly been concerned with not risking danger to anyone else, a prosecutor might argue, he would not have targeted Kirk in a crowded setting. Again, this prosecution is just getting underway, but these are some of the arguments we could see develop as the case takes shape. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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