OGDEN -- Prosecutors argued successfully Friday to deny evidence Eric Millerberg's defense team hoped to present to the court next week, setting up a possible jury verdict by the end of the day.
The defense had wanted to subpoena records from Stevens-Henager College regarding Millerberg's online activity on the night of Sept. 10, 2011, when investigators say 16-year-old Alexis Rasmussen was at Millerberg's home under the pretense of babysitting.
Police say Rasmussen died sometime late that night or in the hours just past midnight after Millerberg injected her twice with a mixture of drugs containing lethal amounts of methamphetamine.
The defense wanted to obtain online school records that may have indicated he was busy studying that night at his home, but prosecutors angrily protested. Weber County Deputy Attorney Chris Shaw said the defense had waited far too long to issue a subpoena to the college for online records.
"The bottom line is now the defense is trying to extract ... evidence that has been available for two years," Shaw said.
Shaw used several precedent cases in which new evidence was disallowed in favor of due process.
Public defender Randall Marshall argued he was taken by surprise during witness testimonies when he learned Millerberg may have been online on the very night he is accused of injecting Rasmussen. He claimed the possibility was new to him and that he was not employing a stall tactic.
"I'm not pulling something out of a hat here," Marshall said.
But Judge Scott Hadley sided with Shaw.
"You should have taken care of this a long, long time ago," Hadley said, addressing Marshall. "You should have known about this for ... probably years."
Still, an investigation into that evidence was conducted briefly by Shane Minor of the county attorney's office on Thursday and was discussed without a jury present Friday afternoon. Minor's investigation produced no positive indication that Millerberg was logged on to any of Stevens-Henager College's web pages on the evening police say Rasmussen died.
Another major focus Friday was the medical evidence found in Rasmussen's body. Medical examiner Joseph White was cross examined multiple times by the defense after testifying he had labeled the cause and manner of Rasmussen's death as "undetermined."
He said he anecdotally felt "use of these drugs is an adequate explanation of death ... and in this case the best explanation." But, he added, the higher standard of forensic proof couldn't be satisfied if he was being "intellectually honest."
White then said if he knew for a fact that Millerberg had injected Rasmussen, he would be able to definitively attribute the cause of death to the drugs.
"The circumstances are highly suspicious," he said. "And the statements put together a compelling story."
But Marshall challenged that statement, saying that knowing what happened on the night of the alleged homicide would not alter the anatomical evidence available.
Nearing the end of the testimonies, the prosecution and defense again debated before Judge Hadley about the pace of the trial. Marshall said he was uneasy about allowing the jury to deliberate "when they believe it's time to go home."
Judge Hadley had previously worried about scheduling deliberation for the evening of Valentine's Day. He allowed the jury to decide among themselves, however, and they opted for immediate deliberation.