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Ogden judge skeptical of motion to inform jurors of death penalty costs

By Mark Shenefelt standard-Examiner - | Nov 6, 2020
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Brenda Emile, left, and Miller Costello, right, have been charged in connection with the death of their 3-year-old daughter. They appeared July 13, 2017, in 2nd District Court in Ogden.

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Judge Michael DiReda speaks to attorneys Friday, June 5, 2020, during a web conference  hearing in the aggravated murder case of Miller Costello and Brenda Emile of Ogden.

OGDEN — A defense attorney sought changes Friday in Utah trial court death penalty procedures, arguing, “The whole system is geared toward, ‘Let’s kill them.'”

Randall Marshall, a capital punishment public defender, is representing Brenda Emile and Miller Costello, who are facing trial in the July 6, 2017, starvation and beating death of their 3-year-old daughter, Angelina.

Judge Michael DiReda heard arguments from Marshall and prosecutors on Marshall’s request that potential jurors be instructed on the costs of executions compared to life imprisonment.

In a second motion, Marshall is challenging Utah’s death penalty statute, asserting the penalty phase is unconstitutionally weighted against the defense.

Marshall said many people have a misconception that life imprisonment costs more than execution.

He said he was “shocked and appalled” in a capital case several years ago how some potential jurors responded to inquiries about the costs.

“The answer more than once was, ‘Why don’t we just execute ’em, it’s a lot cheaper,'” he said.

Studies have shown, however, Marshall said, it is cheaper for the state to keep someone alive than to put them to death.

“It’s important that we ferret that out” when jurors are empaneled, he said.

Branden Miles, Weber County’s chief criminal prosecutor, said jury formation and instructions are not “a wide-open free-for-all to discuss anything that might affect any thoughts they should have about it.”

“The jury doesn’t have to have a perfect understanding of all the ins and outs of the criminal justice system,” Miles said. “Costs are not facts in a case and are not relevant to the consideration of guilt. And jurors are not financial accountants.”

DiReda, in questioning Marshall, said exploration of whether a juror knows anything about the comparative costs is appropriate during jury selection.

“But with respect to being permitted to introduce evidence (of costs), that to me runs afoul of the statute,” the judge said.

He said state law clearly limits jurors’ consideration in the death penalty phase to aggravating and mitigating circumstances of the crime.

Informing jurors of comparative costs “is essentially introducing evidence to them,” DiReda said. “Now it is going to become part of their analytical approach to the case, which it shouldn’t be.”

The judge said if he allowed Marshall to pursue such an inquiry, “pretty soon you’re giving a legal lecture. So you’ve cured the misperception, but now what? Even if they think about it correctly, they shouldn’t be considering it.”

Marshall said failing to dissuade a death penalty juror from mistakenly believing they are “doing society a favor by saving the state money” is “dangerous.”

He said the cost issue is just as worthwhile to explore in the death penalty setting as it is to quiz potential jurors about whether they believe in blood atonement.

Sentencing someone to death, a blood atonement believer will “feel like I’m doing them a favor,” he said.

Miles said that in questioning a juror about blood atonement, “you don’t try to convince the juror that what they believe is wrong.”

Rather, he said, such potential jurors can be challenged and sifted out during selection.

On his second motion, Marshall argued that by the time a jury decides whether to impose the death penalty, state law has shifted the burden to the defense.

If a jury already found aggravating factors when they found the defendant guilty, that effectively means the burden is on the defense to overcome the same issue a second time, he said.

But DiReda said he would instruct any death penalty jury that a penalty of life in prison “is the appropriate sentence until and unless the state meets its burden of proof” to justify the death penalty.

“They won’t be allowed to me misled,” the judge said.

DiReda did not rule on the motions. He said he would issue a written decision later.

Costello and Emile attended the hearing via a Webex link from the Weber County Jail.

No trial date has been set. First-degree felony trials are on hold in Utah courts because of COVID-19 and the inability to ensure social distancing in the courtroom.

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