OGDEN -- A judge has rejected a defense motion calling for the death penalty to be declared unconstitutional.
Filed as part of the run-up to Matthew David Stewart's trial in a police shooting, it is the first of several constitutional challenges expected in any death penalty case.
Stewart is charged with capital homicide in the Jan. 4, 2012, police pot raid gone bad that left officer Jared Francom dead and five other officers and Stewart injured.
In tossing the motion, 2nd District Judge Noel Hyde described lead defense counsel Randall Richards' "impossibility argument" as mere belief, with no empirical evidence to support it.
Richards had argued that since "it's undisputed that murder is conceivably the single most egregious act known to man" it cannot be mitigated.
That, according to the motion filed in January, makes execution under Utah's death penalty statute automatic, even mandatory, therefore illegal, since it requires juries to weigh aggravating and mitigating circumstances in deciding on the life or death of a defendant.
The judge in his ruling published Wednesday also rejected Richards' argument that under his impossibility theory, juries that have opted against the death penalty run afoul of the law as written, and have committed jury nullification.
"Defendant fails to provide the court with any rational basis for accepting his belief that a decision not to impose the death penalty can only be the result of jury nullification," the judge writes.
Richards also challenged a second determination a jury must make after the aggravation/mitigation test -- that the jury must find execution "justified" or "appropriate."
He argued the statute does not define either term and is therefore unconstitutionally vague.
But Hyde writes the Utah Supreme Court addressed that question in a 1989 ruling.
He quotes the high court saying the determination must be made "in light of societal values and the high value that this state and the Eighth Amendment (against cruel and unusual punishment) place on the value of all human life and the humanity of every human being, no matter how depraved he or she may have become or how far he or she may have fallen from the norms of a civilized society."
Stewart's trial is set for April 2014. Stewart's family has said the 38-year-old Army veteran was growing marijuana to ease anxiety and depression. Stewart told investigators he believed he was being robbed when a narcotics task force broke down his door serving a marijuana search warrant.
But at a preliminary hearing last fall, officers testified Stewart kept firing even after the officers withdrew from his home.
He is also charged with seven counts of attempted aggravated murder for allegedly shooting at seven other officers, hitting five, plus a possession charge for the 16 marijuana plants police said they found in the home after the shootout.