OGDEN -- The Utah Supreme Court on Tuesday ordered convicted killer Doug Lovell's case back to 2nd District Court, clearing the way for trial on a 25-year-old homicide.
Lovell has been on death row in Utah State Prison since 1993, when he pleaded guilty to killing Joyce Yost in 1985 to prevent her from testifying that he raped her.
The high court found 2nd District Judge Michael Lyon erred in 2007 in denying Lovell's request to withdraw his guilty plea to the homicide. Lyon inherited the case from retired Judge Stanton Taylor, who imposed the death penalty at Lovell's 1993 sentencing hearing.
Upon the withdrawal of the guilty plea, a trial would feature Lovell's own sworn testimony at his sentencing hearing detailing why he killed Yost, 39, of South Ogden, and how he strangled her.
Lovell went forward with the slaying after two former prison pals he paid to kill her failed to follow through, according to testimony.
In a unanimous decision, the justices found Taylor made errors in taking Lovell's guilty plea in 1993 in not expressly advising him of the presumption of innocence in his favor and his right to a public trial by an impartial jury. In effect, the high court said Judge Lyon should have allowed the guilty plea to be withdrawn, despite rules introduced in 2005 that allowed for "harmless errors" in taking a plea.
Lyon had found that the flawed plea process was harmless given Lovell's experience in the criminal justice system. He was first sent to prison at age 19 for armed robbery.
Lovell was serving time in prison for Yost's rape when he was charged with her murder. He was convicted of Yost's rape in 1986 with Yost absent, her testimony from a prior hearing read into the record at trial.
In an unusual plea bargain on the capital homicide charge, prosecutors had agreed not to seek Lovell's execution if he could take authorities to the site in Ogden Valley where he said he buried Yost. Despite a five-week search, her remains were never recovered.
"Our intention is to try him," Weber County Attorney Dee Smith said Tuesday, saying the justices "surprised us.
"And we're disappointed by it, but we'll abide by it. If Mr. Lovell wants a trial, we'll try the case and we'll continue to seek the death penalty."
As to Lovell's 1993 detailed, sworn confession from the stand, transcribed and likely audiotaped before a roomful of journalists and court observers, Smith said it will likely draw litigation.
"It's hard to anticipate what the legal issues will be, but we anticipate the defense will make an attempt to keep that testimony out of the trial," he said.
Weber County public defenders Ryan Bushell and Jim Retallick made the arguments in 2007 before Judge Lyon regarding the withdrawal of Lovell's guilty plea that were blessed Tuesday by the high court.
But neither will likely be defending him at trial, since neither is certified to handle death penalty trials under Utah law, Bushell said. But they will be involved, he said. Bushell even questioned prosecutors Tuesday about the likelihood of trial.
He sensed no mood to negotiate. "Given the nature of the case, and everything that's gone on for so many years, I don't expect that they'll budge," Bushell said. "It would be simpler if life without parole were on the table, but I don't believe it's going to be there."
Tuesday's appeal was the third by Lovell before the Utah Supreme Court since 1993. The earlier unsuccessful appeals involved the odd plead bargain and issues of ineffective counsel.
Lovell has already been assigned a federal public defender who monitors Lovell's case in state court in anticipation of his appeals eventually moving to the federal system upon a sentence of death.
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