OGDEN -- What promises to be the first of multiple, or more, attempts to have the death penalty declared unconstitutional has been filed in the Doug Lovell case.
Utah's death penalty statute is constitutionally flawed because it requires a jury to find unanimously in favor of death, but votes on lesser sentences needn't be unanimous, claims the motion filed by Lovell's public defenders.
Lovell was on death row for 17 years for the 1985 murder of Joyce Yost, 39, of South Ogden. He admitted to the killing and described it in detail in sworn testimony at his 1993 sentencing hearing.
After years of appeals, his case is set for trial in February. Three years ago, the Utah Supreme Court allowed him to withdraw his guilty plea on legal technicalities.
At a hearing last week, Sean Young, a Lovell public defender, told 2nd District Judge Michael Lyon the new motion is the first of many planned challenging the constitutionality of the death penalty.
The judge set a Nov. 1 deadline for all the motions, with oral arguments to be set for sometime in December.
Capital cases in recent years have drawn the constitutional tests typically in areas such as questions of death amounting to cruel and unusual punishment, or executions complicating international treaties with so many countries where there is no death penalty.
Young and lead counsel Michael Bouwhuis have come up with a new wrinkle in challenging the sentencing scheme of Utah's capital homicide statute.
It allows for three penalties: death, life in prison and life in prison with possible parole. All 12 jurors in a capital trial must vote for death, but the other two sentences can be invoked by a 10-2 vote.
The motion argues that capital cases are the only ones requiring 12 jurors, while most other felony cases employ eight-member juries.
"It stands to reason the drafters ... did not intend to afford the greater protection of 12 jurors in the guilt phase of a capital case while at the same time allowing for less protection in capital sentencing by not requiring a unanimous vote in sentencing," writes Bouwhuis.
The U.S. Supreme Court in 1948, reads the motion, ruled that the concept of unanimous juries "is more consonant with the general humanitarian purposes of the statute and the history of the Anglo-American jury system ..."
"In criminal cases, this requirement of unanimity extends to all issues -- character or degree of crime, guilt and punishment -- which are left to the jury."
As he has testified, Lovell killed Yost to prevent her from testifying to his rape of her that same year. He was still convicted of the rape and is currently serving a prison term of 15 years to life. He wasn't charged with Yost's murder until 1992.