OGDEN — Now that a judge has dismissed defense challenges to Utah’s death penalty, an Ogden couple is scheduled for trial in the 2017 torture death of their 3-year-old daughter.

But because of the COVID-19 pandemic and the need for the 2nd District Court to accommodate a five-week trial, Miller Costello and Brenda Emile will not go on trial until Aug. 1, 2022.

“The courts want it put out far enough that there will be no issues of COVID interrupting it,” Weber County Attorney Christopher Allred said after a hearing Thursday.

Costello and Emile have been in the Weber County Jail since July 2017, accused in the death of Angelina Costello.

Charging documents alleged the girl suffered horrendous injuries and ongoing abuse and malnutrition. A probable cause statement said police found bruising, contusions, lacerations, burns, open sores and abrasions on her face, hands, legs, head and neck. Some injuries were fresh and others were in various stages of healing.

Investigators searched the couple’s phones, saying they found photos and videos of the two taunting the child with food, offering it to her and taking it away, then disciplining her.

The Weber County Attorney’s Office is seeking the death penalty.

Attorneys for Emile, 26, and Costello, 29, who have been held without bail in the Weber County Jail since their arrest, have filed several motions during the pretrial phase attacking Utah’s death penalty law.

Most recently, the defense motions argued the death penalty is cruel and unusual punishment under the Eighth Amendment and the Utah Constitution because it violates evolving standards of decency; and that capital punishment defendants are effectively subjected to aggravated enhancements twice at sentencing.

In a ruling filed May 4, Judge Michael DiReda denied both motions.

He said the U.S. Supreme Court has pinpointed that the clearest and most objective evidence of contemporary values is laws enacted by legislatures. While the defense argued that nine states have abolished the death penalty in the past 14 years and three have imposed a moratorium, the other 28 and the federal government still permit capital punishment. As a result, he said, “the death penalty does not offend contemporary standards of decency.”

Of five death penalty sentencing cases since 1999 in Utah, three defendants were sentenced to death and the other two got life without parole. “This ratio does not convince the court that Utah juries specifically have disregarded the death penalty as a sentencing option,” DiReda wrote.

The judge also said the defense failed to show Utah’s aggravated murder law is insufficiently narrow to apply to the most egregious homicides and the most morally culpable offenders.

DiReda said juries have an array of mitigating factors to consider that could lead them away from imposing a death sentence. He noted as well that the Utah Supreme Court examines the proportionality of each death sentence.

Responding to another defense argument, that recent U.S. Supreme Court decisions holding that the death penalty against intellectually disabled and juvenile killers is cruel and unusual, “in no way suggests that the death penalty should be removed as a matter of law” under the constitutions. He said the high court’s ruling against capital punishment for intellectually deficient defendants was a “careful carving out” of the capital punishment option.

In its second motion, the defense asserted that permitting a jury in the sentencing phase to consider an aggravating factor already decided in the conviction phase in essence shows Utah’s death penalty law does not genuinely allow a narrowing of classes of people subject to execution.

DiReda denied the motion, saying the Utah Supreme Court already has settled the issue and that the U.S. Constitution has no narrower application on the issue.

The judge set another pretrial hearing for Aug. 12.

You can reach reporter Mark Shenefelt at mshenefelt@standard.net. Follow him on Twitter at @mshenefelt.

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