SALT LAKE CITY -- What the jury never heard at Riqo Perea's double-homicide trial drew most of the discussion from the Utah Supreme Court during a hearing Wednesday on Perea's appeal.
The justices seemed particularly interested in why the prosecution fought so hard against the defense introducing an animated video depicting alternative shooters and to keep off the stand a defense expert on false confessions.
"I have to admit I'm mystified by your arguments," Justice Christine Durham told Assistant Attorney General Chris Ballard at oral arguments Wednesday morning.
The attorney general's office argues all criminal appeals.
Durham asked what could be the difference in drawing a chalk diagram on a blackboard and showing a video.
Ballard argued that the video was flawed in many ways, including using a wrong-sized vehicle, another vehicle shown in the wrong location and bullet trajectories being inaccurate.
Durham, and later fellow Justice Jill Parrish, responded that such questions would be a matter for cross-examination during the trial.
Regarding the false-confession expert, Ballard argued that "the science is just not there for false confessions. They are purporting to be human lie detectors."
Parrish responded that the science regarding the psychology behind wrongful confessions does have value, as far as explaining how they can happen. Durham noted that among cases around the country where convicted inmates were exonerated by DNA or other means, 25 percent included false confessions.
"We know the phenomenon occurs," she said.
The appeal purports that Perea was covering for someone else in his confession and may have been influenced by police saying they could protect him from retaliation.
Perea, 25, is appealing his double-homicide conviction in a gang-related shooting at an Ogden wedding party. He is serving a sentence of life in prison without parole, plus six months.
In the August 2007 shootings that killed two and left two wounded, Perea was reacting to insults from a rival gang when he opened fire, according to trial testimony.
In May 2010 he was sentenced to the no-parole life term. Prosecutors had the extra six months tacked on from an additional probation violation in the event of any success in the expected appeal to lessen Perea's sentence.
The appeal also calls the life without parole sentence unconstitutional.
Sam Newton, a Weber State University criminal justice professor who is also contracted to handle appeals of Weber County public defender cases, said the statute regarding a choice between life without parole and life with parole is "unconstitutionally vague."
Its wording seems to imply life without parole is the presumptive or expected penalty, Newton argued, while offering no guidance or process to that conclusion.
He suggested the statute should include a judge listing aggravating and mitigating circumstances that were weighed in sentencing, as judges are required to do in death penalty cases.
"Essentially, this is a death sentence," Newton said. "Mr. Perea will die in prison."
Justice Thomas Lee said that typically is done only for death penalty cases.
"That is a very big step you're asking us to take," Lee said.
Newton and Ballard agreed afterward that how the justices appear during oral arguments rarely tips their hand as to an eventual decision.
"You can never tell," Ballard said. "I've had them smile and nod in agreement at everything I said, then rule against me."
"They seemed more pointed in their questions for the attorney general," Newton said of the justices. "But you never know."
A decision is expected within six months. Newton said he is asking for a new trial or resentencing.
"Dismissal of the case is not an option," he said.