Emile Costello Prelim Hearing 07

Miller Costello looks over his shoulder Friday, Feb. 9, 2018, during a preliminary hearing in the 2nd District Court in Ogden. Costello and Brenda Emile have been charged with aggravated murder in the death of their 3-year-old daughter.

OGDEN — In the latest motion filed by attorneys for one of two Ogden residents accused of killing their daughter in 2017, defense counsel argues the death penalty is unconstitutional and qualifies as “cruel and unusual punishment.”

Attorneys for Miller Costello, 27, filed a motion on Feb. 29 to strike the death penalty as an option in the case. Defense attorneys argue that there is “a state-wide consensus in Utah rejecting the death penalty,” and points to Utah’s minimal use of capital punishment as a justification for their position.

Costello and his wife, Brenda Emile, are each facing a capital murder charge in connection with the death of their 3-year-old daughter Angelina Costello. The child was found dead in an Ogden home in July 2017, and the case has been called a ”horrifying story” of abuse by a number of police and investigators. Prosecutors announced their intent to seek the death penalty against both Costello and Emile in July 2018.

The arguments made in the Feb. 29 motion mainly rest on the belief that the death penalty qualifies as a “cruel and unusual punishment,” and thus violates both the Eighth Amendment of the U.S. Constitution as well as Article I, Section 9 the Utah Constitution.

Attorneys continue, arguing that Utah’s “near total abandonment of capital punishment” demonstrates how the death penalty is “functionally abolished.” They also point to the fact that Utah has expanded the list of aggravating factors that would allow prosecutors to charge someone with aggravated murder instead of murder.

In 2018, legislation was passed that expanded aggravated murder provisions. In the same year, an effort to abolish the death penalty in Utah and another to study the cost of the death penalty both failed to pass.

Between 2000 and 2018, over 1,000 homicides were committed in Utah, but only one case resulted in a death sentence, according to the motion. The case was that of Floyd Maestas, who in 2008 was convicted of killing an elderly woman in Salt Lake City during a home invasion. In that same frame of time, only one person was executed in Utah. That was Ronnie Gardner, who died by firing squad in 2010.

The motion by Costello’s counsel is the latest effort to prepare for the upcoming trial, which is slated to begin in August.

In January, Costello’s attorneys filed a motion to seek to question potential jurors on the financial costs associated with sentencing someone to death.

One of Costello’s attorneys wrote in the motion that defense attorneys need to “be able to instruct the veniremen regarding the cost of imposing the death penalty versus the cost of imposing a life sentence.”

In November, the same attorneys indicated in a motion that they wanted to question potential jurors about their beliefs on ”blood atonement,” a controversial belief of an-eye-for-an-eye mentality.

“There is a belief among some Christians, including some members of The Church of Jesus Christ of Latter-day Saints, that the only way to receive true forgiveness from God for having committed murder is to shed one’s own blood,” an attorney wrote in the motion.

During a hearing on Feb. 28, the state did object to the blood atonement motion, according to court records. However the prosecution and defense ultimately agreed that “if a juror presented as being so set on one particular outcome such that they would be deemed biased and unable to set aside that bias, then obviously that juror could be struck,” according to deputy Weber County attorney Letitia Toombs.

She noted that simply expressing a belief in blood atonement would not be an immediate cause for a potential juror’s removal.

Toombs said in an email Thursday that the issue of questioning potential jurors on death penalty costs was not discussed during the recent hearing and that issue will be brought up in subsequent court dates. The motion to strike the death penalty also was not discussed during the Feb. 28 hearing, as the motion was filed the day after the hearing took place.

Both Costello and Emile are being held without bail at the Weber County Jail. Their next court appearance is slated for May 10 in Ogden’s 2nd District Court.

Jacob Scholl is the Cops and Courts Reporter for the Standard-Examiner. Email him at jscholl@standard.net and follow him on Twitter at @Jacob_Scholl.

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