OGDEN, Utah (AP) - Attorneys in a Utah homicide case have urged a judge to declare the death penalty unconstitutional arguing the sentencing portion of the law shifts the burden of proof to defendants.
An attorney representing Miller Costello, 28, said in a motion filed last month that aggravating factors already have been decided at trial, putting the responsibility on the defense during the sentencing phase, the Standard-Examiner reported.
Costello and his wife Brenda Emile, 25, have been charged with capital murder in the 2017 death of their daughter Angelina Costello.
The girl, 3, suffered prolonged abuse, authorities said, adding that she had bruises, cuts, burns and open sores around her body.
The Weber County attorney’s office is seeking the death penalty against both parents if convicted.
During trial prosecutors must convince a jury that a least one aggravating circumstance, such as child abuse, occurred to justify the capital murder charge.
Costello’s attorney Randall Marshall argued that because an aggravating circumstance already has been determined if a jury finds a defendant guilty, it is unconstitutional to require a defendant to overcome that aggravating circumstance a second time during the sentencing phase.
The shift violates the defendant’s procedural due process protections under the state and federal constitutions and the constitutional prohibitions against cruel and unusual punishment, Marshall said.
The state “cannot require a defendant to prove his life should be spared,” Marshall said, adding prosecutors “must have the burden of proving beyond a reasonable doubt that the death is the appropriate penalty.”
Weber County Attorney Chris Allred on Friday declined to comment on the latest defense motions. He said his staff was working on responses to be filed before a scheduled May 22 hearing.
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