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Utah's Response To Tyler Robinson In Support Of Bind Over (Part 2) (8/19/26) · The Vault: The Epstein Files

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  Speaker 1: What's up, everyone, and welcome back to the program. In
• 0:03
  Speaker 1: this episode, we're getting right back to the State of
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  Speaker 1: Utah's response to Tyler Robinson's memorandum in regards to his
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  Speaker 1: bind over Part two. When properly construed, the evidence demonstrates
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  Speaker 1: a reasonable belief that the defendant knowingly created a great
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  Speaker 1: risk of death to another when he fired a high
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  Speaker 1: powered rifle toward a crowd of thousands, including several who
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  Speaker 1: were in the line of fire were otherwise in close
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  Speaker 1: proximity to mister Kirk. Just as he misrepresents the legal
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  Speaker 1: standard governing this prelim hearing, defendant also misrepresents the standard
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  Speaker 1: for establishing the great risk of death aggravator. The existence
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  Speaker 1: of that aggravator does not require a minimum set of
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  Speaker 1: factual circumstances which must be present, as defendant claims defense
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  Speaker 1: Memorandum at five, nor is the test a multi factor analysis,
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  Speaker 1: as defendant also claims. When the evidence is properly viewed
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  Speaker 1: under the test the Utah the Supreme Court has actually endorsed,
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  Speaker 1: the evidence demonstrates a reasonable belief that the aggravating circumstance
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  Speaker 1: is satisfied. Here, a defendant misrepresents the applicable test for
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  Speaker 1: determining whether he knowingly created a great risk of death
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  Speaker 1: to another. In explaining and applying the great risk of
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  Speaker 1: death aggravator State vers. Sosa Hurtado twenty nineteen, the Utah
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  Speaker 1: Supreme Court expressly stated that it was not establishing multi
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  Speaker 1: factor balancing tests. Rather, the ultimate test is the statutory test,
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  Speaker 1: and that test requires that the defendant knowingly created the
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  Speaker 1: great risk of death. Quoting Utah Code Section seventy six
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  Speaker 1: five two two to one c. The three factors that
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  Speaker 1: the Sosa Hurtado Court identified to guide the application of
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  Speaker 1: the statutory test or simply a range of factors of
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  Speaker 1: possible relevance to the statutory inquiry has elaborated in our
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  Speaker 1: case law. In fact, the Court repeated, we are not
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  Speaker 1: here establishing the multi factor test. The considerations in Sosa
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  Speaker 1: Hurtado are non exhaustive and they are not the test.
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  Speaker 1: Defendant ignores these portions of Sosa Hurtado. Defendant also erroneously
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  Speaker 1: urges the Court to construe the aggravating circumstance narrowly Defense
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  Speaker 1: Memorandum at three through five. The legislature has already narrowed
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  Speaker 1: the aggravator by requiring that the defendant knowingly create a
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  Speaker 1: great risk of death to another Utah Code Section seventy
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  Speaker 1: six two two two two A and three, the court
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  Speaker 1: cannot apply its own narrowing gloss of that standard. Again,
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  Speaker 1: the ultimate test is the statutory test Sosa Hurtado, twenty nineteen,
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  Speaker 1: UTAH sixty five. Nor does defendant emphasis on language from
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  Speaker 1: other cases that a defendant must create a high probability
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  Speaker 1: of death modify the statutory standard defense Memorandum at two.
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  Speaker 1: A high probability of death is just another way to
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  Speaker 1: say a great risk of death. Other courts use the
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  Speaker 1: term high probability. Therefore, does not modify the statutory test
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  Speaker 1: that Soda Sosa Hurtado endorsed UTAH twenty nineteen. The ultimate
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  Speaker 1: test is the statutory test. It also makes no difference
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  Speaker 1: that the facts of other cases do not precisely fit
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  Speaker 1: the facts here. Defendant spills much ink detailing the facts
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  Speaker 1: of other cases where courts have analyzed the great risk
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  Speaker 1: of death aggravator, But the fact that other defendants did
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  Speaker 1: more to endanger others, like firing multiple shots, than defendant
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  Speaker 1: did here is not persuasive. The issue is not whether
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  Speaker 1: another court has applied the aggravator in a case with
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  Speaker 1: identical or at least highly similar facts. Rather, the issue
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  Speaker 1: is whether the evidence, together with the reasonable inferences therefrom,
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  Speaker 1: when properly viewed in the light of most favorable to
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  Speaker 1: the state, supports a reasonable belief that defendant knowingly created
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  Speaker 1: a great risk of death to at least one other
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  Speaker 1: person see Sosa Hurtado, twenty nineteen, Utah. The ultimate test
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  Speaker 1: is a statutory test. The state is comfortably surmounted at
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  Speaker 1: low bar. The court must also recognize that while Hurtado
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  Speaker 1: analyzed and applied the great risk of death aggravator, it
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  Speaker 1: did so in different context and therefore had a different focus.
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  Speaker 1: So Hurtado fired three shots at two different people. He
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  Speaker 1: fired the third and fatal shot at his victim at
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  Speaker 1: close range and with his back to the other smoke
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  Speaker 1: shop employee. The issue in that case therefore concerned the
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  Speaker 1: scope of the relevant circumstances that a jury could consider
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  Speaker 1: in determining whether the aggravator was satisfied. As the court explained,
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  Speaker 1: the issue was whether the relevant circumstances extend beyond the
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  Speaker 1: precise act that caused the death of the victim, or
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  Speaker 1: whether the aggravator applied only where the murderous act itself
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  Speaker 1: creates a great risk of death to a third party.
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  Speaker 1: Citing UTAH Code Section seventy six TOASH five to A
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  Speaker 1: one point one c, the court ultimately held that the
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  Speaker 1: relevant circumstance include more than just the murderous act itself.
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  Speaker 1: A person may be guilty of knowingly creating a great
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  Speaker 1: risk of death to another person if he did so
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  Speaker 1: within a brief span of time of the act causing
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  Speaker 1: the murder, and the acts together formed a series of events.
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  Speaker 1: Unlike Hurtado, this case involves only the murderous act itself,
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  Speaker 1: be the evidence supports a reasonable belief that the statutory
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  Speaker 1: test for the great risk of death aggravator is satisfied here.
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  Speaker 1: Although Sosa Hurtado was focused on the scope of the
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  Speaker 1: relevant circumstances that can support the aggravator, its analysis is
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  Speaker 1: nevertheless helpful here because the Supreme Court recognized that firing
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  Speaker 1: a rifle at a murder victim while another is close
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  Speaker 1: by creates a great risk of death to that surviving person.
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  Speaker 1: As explained in State's opening memo, the Soa Hurtado Court
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  Speaker 1: recognized that there were two separate acts that created a
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  Speaker 1: great risk of death to the surviving smoke shop employee.
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  Speaker 1: The first act was the shot fire towards the surviving
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  Speaker 1: employee that missed. The other was a shot that hit
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  Speaker 1: the murder victim in the hand while the surviving employee
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  Speaker 1: was only a few feet away. Thus, contrary to defendant's contention,
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  Speaker 1: UTAH has in fact adopted an interpretation of the aggravating
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  Speaker 1: factor that would permit its application, where the firing of
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  Speaker 1: a single shot at an intended victim hit only the
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  Speaker 1: intended victim. Here, there were several people close to mister
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  Speaker 1: Kirk when defendant shot him dead. Most significantly, the questioner
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  Speaker 1: was directly between defendant and mister Kirk and within a
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  Speaker 1: few feet of mister Kirk stead example number eight. There
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  Speaker 1: were also several people who were near the questioner. There
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  Speaker 1: were also those with mister Kirk who were under or
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  Speaker 1: near his tent. All these people were visible in the
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  Speaker 1: clear line of sight between Defendant's perch and mister Kirk's seat. Indeed,
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  Speaker 1: from a distance of four hundred and ten feet from
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  Speaker 1: mister Kirk, basic mathematics dictates that an angular shift of
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  Speaker 1: even one eighth of an inch would result in a
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  Speaker 1: substantial miss of the intended target either above below, or
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  Speaker 1: to the right or left, depending on the direction of
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  Speaker 1: the shift, placing many others in danger. Given these facts,
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  Speaker 1: two of the three Sosa Hertato factors support the conclusion
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  Speaker 1: that the great risk of death aggravator applies. As explained,
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  Speaker 1: the spatial relationship between those in the line of fire
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  Speaker 1: and those close to mister Kirk supports application of the aggravator.
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  Speaker 1: Defendant also threatened these people by indirect means through the
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  Speaker 1: risk of stray or ricochet bullets. The other Hertata factor,
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  Speaker 1: the time between the murderous act and any other acts
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  Speaker 1: the defendant may have taken towards third parties, is simply
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  Speaker 1: inapplicable here. Considerations of Soa Hertato factors therefore supports a
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  Speaker 1: reasonable belief that defendant knowingly created a great risk of
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  Speaker 1: death to those who were in defendant's line of fire
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  Speaker 1: and to those who were close to mister Kirk but
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  Speaker 1: outside the line of fire. When defendant pulled the trigger,
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  Speaker 1: one defendant knowingly created a great risk of death to
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  Speaker 1: those who were within his line of fire. Defendant's attacks
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  Speaker 1: the state's line of fire argument, which he repeatedly mislabels
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  Speaker 1: as a line of sight argument Defense Memorandum at fifteen
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  Speaker 1: and sixteen. On the basis that mister Kirk was seated
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  Speaker 1: in an elevated position, Defendant asserts that the bullet traveled above,
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  Speaker 1: not through the crowd, but in states exhibit eight, the
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  Speaker 1: questioner's head is visible above mister Kirk's head State example
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  Speaker 1: number eight. Others standing in the front rows of the
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  Speaker 1: crowd are positioned at approximately the same level as the questioner,
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  Speaker 1: but slightly farther back from mister Kirk. And regardless of
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  Speaker 1: the precise elevation of the questioner's head and the heads
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  Speaker 1: of the others in the crowd in relation to mister
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  Speaker 1: Kirk's head, any difference is so negligible that it does
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  Speaker 1: not place the others outside the line of fire see
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  Speaker 1: State's example seven and eight. The evidence therefore supports a
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  Speaker 1: reasonable belief that all these people were in the line
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  Speaker 1: of fire and therefore within the zone of danger that
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  Speaker 1: defendant created when he fired his rifle. See Sylvia, verse
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  Speaker 1: State sixty, Florida, twenty eleven. Defendant knowingly created a great
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  Speaker 1: risk of death to people who were in his line
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  Speaker 1: of fire. Commonwealth verst Buck seven h nine, Pennsylvania nineteen
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  Speaker 1: ninety eight single fatal shot at murder victim placed another
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  Speaker 1: individual who was in the line of fire at grave
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  Speaker 1: risk of death. Two. Defendant knowingly created a great risk
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  Speaker 1: of death to those nearer mister Kirk when defendant pulled
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  Speaker 1: the trigger. Defendant also knowingly created a great risk of
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  Speaker 1: death to those near mister Kirk, although not within the
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  Speaker 1: line of fire. Two security personnel were directly in front
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  Speaker 1: and on either side of mister Kirk, but still within
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  Speaker 1: the span of his tent. A third security person was
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  Speaker 1: under the tent and just to mister Kirk's right state
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  Speaker 1: example seven. This person had to take only a small
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  Speaker 1: step to reach mister Kirk as he fell. Another person
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  Speaker 1: was operating a camera just under the tent front edge
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  Speaker 1: to mister Kirk's left state example eight. Defendant had a
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  Speaker 1: clear line of sight to view all these people from
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  Speaker 1: just four hundred and ten feet away. The evidence also
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  Speaker 1: supports a reasonable inference that defendant knew that the people
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  Speaker 1: there in the area behind mister Kirk's tent. Defendant visited
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  Speaker 1: the amphitheater area at least twice before the shooting. This
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  Speaker 1: evidence supports a reasonable inference that he saw the staging
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  Speaker 1: area behind mister Kirk's tent. The fact that defendant had
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  Speaker 1: a clear line of sight to mister Kirk's tent at
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  Speaker 1: the time of the shooting also supports a reasonable inference
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  Speaker 1: that defendant new people were in that staging area when
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  Speaker 1: he fired the shot. Defendant argues that given the speed
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  Speaker 1: with which he had to acquire his target and fire
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  Speaker 1: once he got into position in the sniper's nest, the
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  Speaker 1: evidence does not support a reasonable inference that he knew
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  Speaker 1: that any of these people were present. Defense Memorandum at
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  Speaker 1: twenty and twenty one. But this argument again ignores the
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  Speaker 1: controlling evidence entry standard because it asked the court to
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  Speaker 1: view the inferences in defendant favor rather than the states
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  Speaker 1: defendant had a clear line of sight to mister Kirk,
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  Speaker 1: the crowd, those nearest mister Kirk, and those in the
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  Speaker 1: staging area behind the tent. The evidence therefore supports a
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  Speaker 1: reasonable inference that defendant knew all the above mentioned people
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  Speaker 1: were near mister Kirk when defendant fired his rifle, and
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  Speaker 1: defendant had longer than just the approximate thirty five to
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  Speaker 1: forty four seconds in the prone position to observe these people.
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  Speaker 1: He would also have seen the people as he ran
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  Speaker 1: and then crawled towards his rooftop position. Regardless of emphasizing
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  Speaker 1: how hastily defendant had to act to acquire his target
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  Speaker 1: and fire his rifle does not help him. It only
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  Speaker 1: highlights and increases the likelihood that he would miss his
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  Speaker 1: intended target. The speed with which defendant had to act,
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  Speaker 1: coupled with evidence showing that he had to reassemble his rifle,
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  Speaker 1: that he loaded four cartridges in his rifle, and that
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  Speaker 1: in his earlier target practice he sometimes missed the target entirely,
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  Speaker 1: all supports the reasonable inference that defendant knew that he
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  Speaker 1: could miss. That inference supports a reasonable belief that he
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  Speaker 1: knowingly created a great risk of death to both those
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  Speaker 1: in his line of fire and others near mister Kirk. Again,
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  Speaker 1: a jury can infer that an individual is knowingly endangering
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  Speaker 1: a person when that individual uses a gun in any
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  Speaker 1: area where he knows that others could be Commonwealth versus Watson, Pennsylvania,
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  Speaker 1: nineteen eighty nine. Common sense also dictates that firing a gun,
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  Speaker 1: especially a high power rifle, towards others puts them at
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  Speaker 1: great risk of death. That is precisely why gun ranges
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  Speaker 1: prohibit shooters from even handling a firearm when others are
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  Speaker 1: downranged beyond the firing line. Defendant highlights cases where other
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  Speaker 1: courts did not find that the facts satisfied the great
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  Speaker 1: risk of death aggravator. But again, the issue is not
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  Speaker 1: how closely the facts here resemble those in other cases.
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  Speaker 1: The issue is whether the facts here, together with reasonable
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  Speaker 1: inferences therefrom demonstrate a reasonable belief the defendant satisfied the
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  Speaker 1: statutory aggravator. Moreover, some of these cases support application of
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  Speaker 1: the aggravating circumstance. In the case, for example, although defendant
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  Speaker 1: in Little John vers. State fired only one shot in
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  Speaker 1: a convenience store that hit his intended victim, the court
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  Speaker 1: recognized that the aggravator applies when the defendant's acts create
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  Speaker 1: a risk of death to another which are in close
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  Speaker 1: proximity in terms of time, location, and intent to that
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  Speaker 1: act of the killing itself. There was no mention in
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  Speaker 1: Little John of how close others in the store were
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  Speaker 1: to the person who was shot and killed. Similarly, although
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  Speaker 1: the court in Johnson verse State found that the defendant
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  Speaker 1: did not create a great risk of death to another
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  Speaker 1: when he fired out a store manager at point blank range,
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  Speaker 1: The court also noted no other person was within the
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  Speaker 1: immediate vicinity or within the line of fire. Finally, the
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  Speaker 1: court statement in United States first bin laden about a
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  Speaker 1: defendant who might carefully target his victim does not help
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  Speaker 1: defend in here the core positive that a jury may
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  Speaker 1: find there to be qualitative differences between a defendant who
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  Speaker 1: carefully targets an intended victim or victims without endangering others,
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  Speaker 1: and one who acts with indifference to additional persons. But
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  Speaker 1: defendant here acted with indifference to those in his line
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  Speaker 1: of fire and close to mister Kirk because his shot
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  Speaker 1: endangered them, even though it ended up hitting its intended target.
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  Speaker 1: All right, folks, we're gonna wrap up right here, and
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  Speaker 1: in the next episode we're going to pick up with c.
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  Speaker 1: Many of defendant's arguments depend on ignoring some evidence and
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  Speaker 1: improperly viewing the evidentiary inferences in his favor. All the
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  Speaker 1: information that goes with this episode can be found in
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  Speaker 1: the description box.