The Volokh Conspiracy
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Why Charlie Kirk's Murderer Is "Death Eligible" Under Utah's Death Penalty Statute
Utah prosecutors have a strong argument that the assassination created a great risk of death to another individual besides Kirk, allowing capital punishment under Utah law.
Today state prosecutors in Utah County, Utah, charged Tyler Robinson with "aggravated murder" under Utah law, making him eligible for the death penalty if convicted. The prosecutors also announced that they will seek the death penalty. Under Utah law, a murder becomes aggravated, and thus, death eligible, if prosecutors can prove a specific aggravating circumstance connected with the murder. Here, acting under Utah's capital murder statute (Utah Code Ann. § 76-5-202) prosecutors have alleged the aggravating circumstance that Kirk's murderer "knowingly created a great risk of death to another individual other than Charlie Kirk and the defendant." In my view the prosecutors have strong case that Kirk's murder fits within that aggravating circumstance, and thus that Robinson (if proven guilty) is eligible for the death penalty.
My purpose in writing this post is to set out the specific Utah law relevant to Robinson's prosecution for a capital crime. As a criminal law professor at Utah's public law school, I teach these subjects regularly. This post addresses only Utah state law, not federal charges that may be applicable. Similarly, this post attempts to describe existing Utah law, not the desirability of seeking the death penalty in the Kirk case nor, more broadly, the desirability of the death penalty in general.
The factual circumstances surrounding Kirk's assassination are generally well known. I won't recount them all here. But it is important to dispel some misconceptions about Utah's death penalty statute.
For a murder to be death-eligible in Utah, prosecutors must prove a specific aggravating circumstance—beyond the fact of intentional murder. The facts alleged (if proven) make clear that Robinson acted with premeditation and, indeed, was lying in wait to get the opportunity to shoot Kirk. Under some homicide statutes, that premeditation alone might well be sufficient to seek the death penalty. For example, in California, a murder committed with malice aforethought (i.e., without provocation) becomes death eligible where "[t]he defendant intentionally killed the victim by means of lying in wait."
Under Utah's murder statute, however, there is no general aggravation for lying in wait or clear premeditation. With some exceptions, Utah's criminal law statutes generally follow the Model Penal Code (MPC), which was drafted by the American Law Institute in the late 1950s and early 1960s to rationalize criminal statutes. The MPC abandoned the distinction between premeditated and "merely intentional" murder, providing for only a single degree of murder. When Utah revised its criminal code in around 1973, it followed the MPC's approach to categorizing homicides. See generally Paul N. Cox, Utah's New Penal Code, 1973 Utah L. Rev. 718.
Turning to Utah's death penalty provisions in particular, some history is helpful. In 1972, the U.S. Supreme Court struck down state death penalty statutes all over the country. In Furman v. Georgia, the Court held that the statutes in effect at the time generally led to unpredictable infliction of the death penalty. In the immediate wake of Furman, many states (including Utah) responded by re-enacting death penalty statutes that addressed Furman's concerns by guiding jury discretion on death penalty verdicts. In 1976, in Gregg v. Georgia, the U.S. Supreme Court upheld the constitutionality of these modern death penalty statutes.
In drafting more specific death penalty statutes, many states looked to the MPC death penalty provisions. These provisions made certain murders death-eligible if a specific aggravated circumstance was proven. Among other aggravating circumstances, the MPC made a murder death-eligible when "[t]he defendant knowingly created a great risk of death to many persons." See Gregg, 429 U.S. at 194 n.44.
Utah looked to the MPC as a source for its aggravating circumstances in its death penalty statute. But, in its current form, Utah's death penalty statute modifies the MPC aggravator involving risk to "many persons." Instead, Utah's statute requires proof of "great risk of death to another individual" (other than the deceased individual or the murderer). This broader language is significant, because it means prosecutors need only show a great risk to one other person—besides Kirk—to make his murder death-eligible.
What does Utah's language mean when it describes "great risk of death to another individual"? To be clear, this issue of how to interpret the aggravating circumstance is (within broad constitutional limits) solely a question of Utah state law. It appears that Utah caselaw contains only a handful of decisions interpreting the "great risk of death" provision. The gist of these decisions is that the defendant's murder is aggravated if the defendant place another person within the "zone of danger" of death.
In Utah's most recent decision on the aggravator, State v. Sosa-Hurtado, 2019 UT 65, the Utah Supreme Court considered a case where the defendant shot at one person in the course of a robbery and then shot and killed another. Here are the facts:
Sosa-Hurtado entered the smoke shop and pulled an assault rifle from his jacket. According to Isabel's testimony, when Sosa-Hurtado entered the shop, Stephen and Isabel were standing three to four feet apart from each other behind the counter. A witness who was inside of the shop at the time of the shooting, however, said that Isabel and Stephen were closer—perhaps only two feet apart. Stephen stood at the cash register behind the north counter while Isabel stood behind the east counter. Sosa-Hurtado fired one shot at Isabel with his assault rifle, missing him but shattering a glass case, which hurled glass and wood into Isabel's leg, causing him to fall to the ground.
Sosa-Hurtado then turned towards Stephen. He fired a shot at Stephen, which hit Stephen's hand. Stephen fell on the floor behind the counter. Isabel began to get up and move towards Stephen. With his back to Isabel, Sosa-Hurtado leaned over the counter, positioned the rifle only inches from Stephen's chest, and shot him twice more. These shots killed Stephen. Only a few feet away, Isabel felt the air displaced by the bullets. Sosa-Hurtado exited the smoke shop and fired several shots into the air outside.
Id. at ¶¶ 7-8.
In affirming a conviction for aggravated murder (albeit not in a capital case), Sosa-Hurtado described the caselaw in this area. It pointed to an earlier decision, in which a defendant had used a caustic substance to kill three individuals and serious injure two others. In State v. Pierre, 572 P.2d 1338 (UT 1977), the Utah Supreme Court concluded that the evidence demonstrated "that the killing of the three victims and the creation of a setting of great risk of death to the two surviving victims occurred within a brief span of time in which were formed a concatenating series of events." 572 P.2d at 1355.
Sosa-Hurtado also pointed to another case, in which the Utah Supreme Court found that the grave risk of danger aggravator was not proven. In State v. Johnson, 740 P.2d 1264 (Utah 1987), a defendant bludgeoned a victim/husband to death, and then raped a victim/wife. The Court concluded that there was insufficient evidence that the defendant's murder
of [the husband] on the other side of a basement, separated from [his wife] by shelving, constitutes the kind of conduct described by [the great risk of death to another provision]. The State produced no evidence indicating the at [the wife] was placed at grave risk of death by defendant's battery of [the husband], nor did it produce evidence indicating that defendant knew that his conduct toward [the husband] placed [the wife] at great risk. This case resembles State v. Clark, 616 P.2d 888 (Ariz. 1980). In that case, the Arizona Supreme Court held that the victim's wife, who was in another room of the home when her husband was shot by the defendant, was not, even assuming the possibility of a ricocheting bullet, within the zone of danger.
In Johnson, in referring to a "zone of danger," the Utah Supreme Court cited favorably to a New Jersey Supreme Court's interpretation of a similar first degree murder statute. There, the New Jersey court explained that, to fall within the aggravator
the facts must include a knowing or purposeful state of mind vis-a-vis the creation of a great risk of death, that there be a likelihood or high probability of great risk of death created, not just a mere possibility … and that there be at least another person within the "zone of danger" created by defendant's conduct.
State v. Price, 478 A.2d 1249, 1260 (N.J. Super. 1984) (citations omitted).
In Johnson, the Utah Supreme Court specifically stated that it also agreed "with the New Jersey court that there may be circumstances in which a defendant may be guilty although the endangered person is physically removed from the defendant's conduct, but we note that such cases require a careful consideration of a defendant's intent and knowledge of the risk and the endangered person's proximity in time and place to the murder."
The state prosecution is being capably led by Utah County Attorney Jeff Gray, who has considerable experience in serious criminal cases—and has covered these issues in the charges he filed today. The prosecutors will need to show that at least one other individual was within the "zone of danger" from the deadly bullet fired by Robinson from a high-powered rifle, specifically, a Mauser Model 98 .30-06 caliber bolt action rifle with a mounted scope. This issue of risk to another person becomes essentially a factual question, which the jury will need to resolve after hearing evidence from the prosecution and defense.
Below is a photograph of multiple people in close proximity in time and place to Kirk just moments before he was murdered:
Whatever else may be said about this photo, it makes clear the shooting was not a covert, private vendetta but rather a public assassination of a victim surrounded by hundreds of people.
The Criminal Information filed today lays out strong evidence of at least one of these other persons being in the zone of danger:
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.
Approximately fifteen minutes into the event, Mr. Kirk was answering a question about mass shootings by transgender individuals when a gunshot rang out. The bullet struck Mr. Kirk in the neck. He slumped to the ground almost immediately. 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.
Further supporting this conclusion about risk is the fact that, immediately after the shooting, according to a Salt Lake Tribune timeline, "swarms of attendees bolted from the area, some wading through water in a campus fountain as they sought shelter." Presumably people were fleeing because of the great risk they were exposed to.
Robinson can be expected to challenge this conclusion that he placed others at risk. Presumably his lawyers will point to the fact that only a single person died. And his lawyers can point to the mounted scope and Robinson's deadly accuracy in carrying out the execution to suggest that the only person at risk was Kirk. But in asking whether there was a "great risk" to another person, part of the calculation is presumably the nature of the risk that is involved. The risk that Robinson created was, of course, a criminal risk of death from a bullet flying dangerously close to others. Robinson's crime seems to have created exactly the kind of danger that Utah's death penalty statute covers—making Robinson death-eligible if the prosecutors prove their case.
