FARMINGTON -- Defense attorneys for Nathan Sloop filed a motion challenging the legality of Shelby's Law.
Nathan 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 Stacy, son of Stephanie Sloop, died 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.
Prosecutors filed a response to the motion, saying the challenge at the preliminary hearing level is "premature" and that the judge's role at this stage of the case is to determine if there is enough evidence to bind the case over for trial.
Judge Glen Dawson heard testimony from police officers and other expert witnesses during a four-day preliminary hearing in March and April. Dawson did not make a ruling at that time on whether the case should head for a trial.
A hearing for Nathan Sloop is set for Thursday, when prosecutors plan to argue why the case should be bound over. The defense motion may be addressed at that hearing.
A hearing for Stephanie Sloop is scheduled for 11 a.m. July 30.
The Davis County Attorney's Office filed in December its intent to seek the death penalty if Nathan Sloop is convicted on the aggravated murder charge.
According to the 22-page motion filed by defense attorneys Richard Mauro and Scott Williams, prosecutors should not seek the death penalty "against one who did not intentionally kill." It also claims that Utah's law, which was amended by Shelby's Law in 2007, is vague.
If a child dies anytime after an act of abuse, prosecutors could seek the death penalty the way the law is written, according to the motion.
The U.S. Supreme Court ruled in 2008 that the death penalty is not applicable in non-homicide cases.
According to the documents filed by prosecutors, "the death penalty is not an element of the office," and if the judge "strike the Notice of Intent," Utah's law allows prosecutors to refile within 60 days another motion seeking the death penalty.
"So defendant's challenge to the death penalty is premature and should not be addressed," according to the court document.