OGDEN -- The prosecution has responded to a motion by Matthew David Stewart's defense team calling the death penalty unconstitutional, writing "Defendant's claim is simply wrong."
In the constitutional challenge filed last month, Stewart's attorneys argue the death penalty violates Fifth Amendment due process rights by creating an "impossible" burden to overcome at sentencing.
No amount of mitigating factors can overcome the "enormity" of murder, the motion argues.
A jury, in considering the death penalty, must weigh both aggravating and mitigating circumstances and find the aggravating obviously outweighs the mitigating before calling for execution.
What the prosecution labels as simply wrong is the defense essentially depicting the death penalty statute as "creating a presumption that death is the only appropriate penalty for aggravated murder."
But opting for death is not mandated by the statute even if the aggravating factors clearly outweigh the mitigating, notes the prosecution response filed by Deputy Weber County Attorney Sandra Corp. She cites case law that reads "the sentencing authority may refuse to impose the death penalty even though it concedes that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt."
While the aggravating factors that can be cited in a capital case are limited, reads the prosecution motion, the mitigating factors the defense may cite "are practically unlimited."
Case laws say mitigation may include "any aspect of a defendant's character or record and any of the circumstances of the offense," according to the motion.
The defense motion is the first of what will likely be numerous constitutional challenges common to any capital case.
Stewart faces the death penalty if convicted in the shooting death of officer Jared Francom during the serving of a marijuana search warrant on his home on Jan. 4 last year.
He is also charged with seven counts of attempted aggravated murder for allegedly shooting at seven other officers, hitting five, plus one count of second-degree felony cultivation for the 16 marijuana plants taken from his home afterwards. Stewart was also shot several times.
Stewart supporters and family have formed websites saying he is the victim of a home invasion raid by police who have become far too numerous and dangerous in recent years as law enforcement grows increasingly militarized.
Claims that Stewart didn't know he was shooting at police, but thought he was being robbed conflicts with the official evidence presented at Stewart's three-day preliminary hearing begun Oct. 31. Witnesses described Stewart as continuing to fire even as the officers withdrew, and telling an investigator the next day he knew they were from a government agency of some kind.
Stewart's trial has yet to be set, with a status conference scheduled for Wednesday before 2nd District Judge Noel Hyde.