Procedural steps toward a capital murder prosecution in Utah.

The apprehension of Tyler Robinson, the suspect in the assassination of Charlie Kirk, is a credit to the force-multiplier effect that the public has become in high-profile criminal investigations, thanks to modern communications technology, social media, and the resulting ubiquity of video.

The suspect was arrested approximately 250 miles from the murder scene (though still in the huge state of Utah), less than two days after the murder. That’s notwithstanding the FBI director’s missteps in publicizing incorrect information and pointing at a suspect who apparently had nothing to do with the crime. These errors are magnified by the fact that this is a state homicide case; the FBI is to be commended for contributing its forensic and shoe-leather resources to the manhunt, but especially when it’s not your case, the rule of the road is “do no harm.”

I agree with Charlie that Governor Spencer Cox has performed well. He’s set a tone that simultaneously conveyed urgency but did not let urgency turn into haste that could undermine methodical police work.

After a shocking event like Charlie Kirk’s killing, resulting in intense publicity and interest from the nation’s highest-ranking politicians, rash investigative blunders often happen. Other than pointing the spotlight of suspicion on innocent people, the worst blunders are the ones that give any help to the culprit at the eventual trial. A defendant is sure to exploit investigative errors by claiming that the police really don’t know what happened and have scapegoated him because of political pressure, not evidence. Hence, police must do their best to tune out the publicity (while still with an ear to the ground for clues) and perform their work by the book. If there is a trial, their work will be closely scrutinized.

Here, thanks to the governor (and, I’m sure, police supervisors), the police were encouraged to go about their work expeditiously but professionally. And if it’s true — as reporting suggests — that Robinson made incriminating statements to relatives and can probably be connected to the murder weapon, there should not be much of a defense.

What happens next is procedural. I assume the state will file charges today — a complaint (sworn by an investigator) or criminal information (filed by a prosecutor) that will be enough for the court to detain the defendant pretrial. Meantime, prosecutors will continue their investigation.

I am assuming that the Justice Department will not try to charge the case since there is no obvious federal jurisdiction — i.e., the case does not fall into one of the discrete federal-interest categories that authorize federal murder charges. This should be a straightforward state homicide prosecution. (Aside: My column this coming weekend is about what I believe is the well-meaning but wayward attempt to federalize the prosecution of the barbaric murder of Iryna Zarutska in a passenger car of a local Charlotte, N.C., train line.)

Governor Cox has indicated that the state will file a capital murder charge. As I understand it, most criminal cases in Utah proceed by criminal information rather than indictment — i.e., the prosecutor’s office may issue the charges rather than asking a grand jury to do so — although grand juries are sometimes used. (In federal law, by contrast, a grand jury indictment is necessary in any felony case, unless the defendant waives that right.)

Death-penalty cases in Utah are governed by Section 76-5-202 of the state code. Once the defendant is arraigned on the charge, the prosecutor has 60 days to file a notice of intent to seek the death penalty. Absent the notice, the maximum sentence would be life imprisonment without parole.

Capital charges enhance the procedural protections of the defendant. That includes the appointment of counsel experienced in death-penalty cases. Such an attorney could begin working on the case even before the death-penalty notice is filed. It is standard practice for the defense to make a “mitigation presentation” to the state — an effort to persuade the prosecutor not to file the death-penalty notice.

The decision whether to file capital charges is solely up to the prosecutor. That is, even if the defense claims that the state is improperly acting based on political pressure, or that the state failed to give adequate consideration to any mitigation presentation, the court has no power to reverse the prosecutor’s exercise of charging discretion.

So when the governor says Utah will seek the death penalty, we can be confident that the state will file capital murder charges. But even when the evidence is strong, capital charges can be difficult to sustain.

In Utah, the death penalty is available only for “aggravated murder,” not for other intentional killings. Aggravated murder generally narrows death-penalty offenses to killings of corrections officers, mass murders, contract murders, murders committed in the course of other grisly crimes, murders to evade capture by police, murders with mass-destruction weapons, and so on.

The aggravated murder category that I believe best applies in this case is: a killing that creates “a great risk of death to another individual other than the deceased individual.” A shooting by high-powered rifle from about 200 yards away in a crowded outdoor amphitheater patently creates a risk of death to people other than the shooter’s target. (Recall that in the July 2024 assassination attempt on now–President Trump in Butler, Pa., one audience member, Corey Comperatore, was killed and others were badly wounded. Long-distance shooting in speech settings imply not just intent to kill the target but also a depraved indifference to human life.)

Reports say that Utah police and the FBI are still running down leads. That’s as it should be. Officials have indicated a belief that Robinson acted alone. Consequently, the investigation is now about shoring up the case for prosecution.