FARMINGTON -- Nathanael Sloop's attorneys plan to challenge Shelby's Law, which allows prosecutors to go after the death penalty when a child dies from either neglect or abuse.
"Shelby's Law allows for the death penalty for an unintentional killing," said Richard Mauro, defense attorney for Sloop.
Mauro and Scott Williams spoke with the media after the preliminary hearing held Friday for Sloop in 2nd District Court.
Prosecutors are seeking the death penalty for Nathan Sloop, who is accused of killing 4-year-old Ethan Stacy. They filed an amended charge in March including the wording "with reckless indifference to human life," which invokes Shelby's law. The original charges in 2010 said Nathan Sloop "knowingly or intentionally" caused Ethan's death.
Judge Glen Dawson set June 20 for a hearing. Attorneys will either file written arguments or prepare oral arguments.
Dawson will rule then whether or not there is enough evidence for Nathan Sloop's case to go forward as charged.
The capital murder law was changed in 2007 after Shelby Andrew, a 10-year-old Syracuse girl, died in 2006 after being tortured and physically abused by her stepmother and father, Angela and Ryan Andrews. They both pleaded guilty to first-degree felony murder charges and were sentenced to serve 15 years to life in the Utah State Prison.
The law now allows prosecutors to file capital murder charges against anyone who kills a child under the age of 14, if abuse or neglect are also involved.
Ethan's case is the first time prosecutors have used Shelby's Law when a child has died from what appears to have been from child abuse.
Sloop and his wife, Stephanie Sloop are charged with aggravated murder, second-degree felony child abuse, second-degree felony obstruction of justice and third-degree felony abuse or desecration of a body.
Officials said Ethan, son of Stephanie Sloop, died on May 8, 2010. His disfigured body was found near Powder Mountain on May 11, 2010, after the Sloops called police to report him missing from their apartment.
Police and medical experts testified in March that Ethan had died from drug overdose, scalding and aspiration pneumonia. They also told how Sloop took police to the place where the boy's body had been wrapped in eight garbage bags and buried under a curtain, ammonia bottle, duct tape roll, a broken hammer and lighter fluid bottle.
Sloop told police he had used the hammer to disfigure the small boy's face because Stephanie Sloop was concerned about dental records identifying her son.
Stephanie Sloop's attorney, Mary Corporon was in court and asked the court to continue to have her client's case follow Nathan Sloop's.
It was the fourth day of a preliminary hearing set for Nathan Sloop.
An expert burn witness said the hot water burn injuries Ethan sustained before he died "would cause a tremendous amount of pain."
Dr. Jeffrey Saffle, former director of the Intermountain Burn Center at the University of Utah, took the stand Friday.
He said Ethan had suffered burns on 17 1/2 percent of his body, most of them second- and third-degree burns across his legs and lower part of his body. Some of the skin was burned so severely that it had blistered and fallen off.
Saffle said the burns were more severe on Ethan's feet and ankles.
Saffle said during cross-examination that 5 percent to 9 percent of Ethan's burns would have required skin grafting.
Saffle testified that the type of burns Ethan had would have required a 2-3 week stay at the hospital with fluids, medication, skin grafts and rehabilitation.
Ethan's genitals also did not get burned, but the left lower leg had burns all around it from the mid-calf down, Saffle said.
Because of the nature of the burns, Ethan would have been dehydrated, nauseous and in a lot of pain, Saffle said. The Sloops gave Ethan medication, which also caused dehydration.
Water temperatures at 125 to 130 degrees can cause significant burns within 10 seconds to 30 seconds, he said. The water depth had to be between 3 inches to 4 inches because Ethan's toes did not receive any burns.
Also many hot water heaters are set at 150 degrees to 160 degrees and that temperature can cause burns within two to three seconds, Saffle said.
The hearing on Friday was stopped briefly because Dawson wanted to review still photographs taken by a Standard-Examiner photographer in the courtroom. After reviewing the photographs in his chambers, Dawson returned to the court and apologized for the delay and said he "had no concerns."