Killer’s conviction reversed
July 1, 2008
The Utah Supreme Court on Tuesday reversed the 2005 manslaughter conviction of Erik Low in the Park City shooting death of Michael Hirschey, a decision that could force prosecutors to try the case a third time.
The Supreme Court determined there was an error in the jury instructions in Low’s second trial regarding a specific type of manslaughter involving extreme emotional distress.
The jury convicted Low of manslaughter in the second trial after Judge Deno Himonas allowed the jury to consider a manslaughter conviction.
In the first trial, Judge Robert Hilder did not give jurors the manslaughter option. The first jury was unable to render a verdict on a murder charge, resulting in Hilder declaring a mistrial and the second trial.
In its ruling, the Supreme Court said prosecutors cannot retry Low on a murder charge or two forms of manslaughter. They said, however, the prosecutors can seek a conviction for other sorts of manslaughter or less serious charges.
Summit County Attorney David Brickey, who was the lead prosecutor, said Tuesday he will retry Low. He said the prosecution can "absolutely" win a third trial.
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"Mr. Hirschey didn’t get the opportunity to defend himself that I think I should give him," Brickey said.
Elizabeth Hunt, the attorney who handled Low’s appeal to the Supreme Court, did not immediately return a phone message seeking comment.
Low, who is 40 years old, shot and killed Hirschey on May 8, 2003 in a Kearns Boulevard apartment. The shooting happened after a night of partying and roughhousing.