Robinson's attorneys are saying that since the shooter hit his target with a single shot, people standing around Kirk were not in danger. According to Associated Press, they say that should be enough to take the death penalty off the table because only the “intended target” was hit.
Jenna Ellis, host of a morning show on American Family Radio (AFR)’s, is a former criminal prosecutor. She says it's important to understand what is and what isn't being claimed here.
First, they're not admitting Robinson pulled the trigger.
“Most people in the media are focusing on the wrong thing. The defense isn't admitting that Robinson is the shooter. They're essentially saying even if the state can prove it was Robinson, it hasn't established the aggravating circumstance necessary for the death penalty,” Ellis explains.
In order for a murder to qualify for the death penalty in Utah, it has to be accompanied by an aggravating factor — if it's a hate crime, if it’s done in the commission of another crime or if the shooting put others in danger, for example.
Ellis emphasizes that others were in danger.
“People near Kirk were in the potential zone of danger from a miss or a potential ricochet,” Ellis says.
However, Robinson’s attorneys claim there was no danger since evidence shows that the bullet traveled above the crowd rather than through.
But even Robinson, if he was the shooter, was ready in case he missed.
“Robinson allegedly loaded multiple rounds, which indicates he contemplated the possibility of missing,” Ellis points out.
While Ellis says this is a weak argument for ditching the death penalty, it is worth the effort because one never knows what a jury will pick up on.
“Even creative arguments can become landmark precedent,” Ellis states.
There is also a debate on whether Robinson murdered Kirk because of his political stance.
The prosecutors’ response to the defenses’ new arguments will be heard on August 18, and the closing arguments to preliminary hearing will take place on September 1.
