OGDEN — An Ogden judge has expressed skepticism about a defense motion seeking to nullify Utah’s death penalty law on the grounds that a public consensus against capital punishment has evolved.

While prosecutors today have become more selective in pushing for capital punishment and jurors “aren’t eager to do it,” Utah lawmakers over the years have added more legal factors justifying execution verdicts, defense attorney Randall Marshall said in a recent hearing.

“With this knee-jerk Legislature we have in Utah,” Marshall said, stricter criminal laws are politically desirable, “so they do things they know will get them reelected.”

Marshall and another defense attorney, Jason Widdison, argued in the April 23 hearing to strike the death penalty from the case against Miller Costello, 29, and Brenda Emile, 26, in the July 2017 death of their 3-year-old daughter, Angelina Costello.

They also asked the court to prohibit juries from considering aggravating factors during sentencing that already were considered during the trial phase.

But 2nd District Michael DiReda said the U.S. and Utah supreme courts “have made clear that the clear and most reliable objective evidence of contemporary values is legislation enacted” by state legislatures.

Of hundreds of homicide cases in Utah in the past two decades, only a handful have ended with death sentences.

“That tells you our society is just not eager, interested in imposing the death penalty,” Marshall said, according to an audio recording of the hearing. “There’s the consensus.”

The Utah Sentencing Commission, a body authorized by the Legislature, has recommended against the “double counting” of aggravating factors, he added.

Higher courts already have decided the issues, DiReda said.

“I think that’s a dangerous sort of request to make of a trial court,” DiReda said. “Should I pick and choose, following my own philosophy? That makes me an activist judge, and I’m certainly not going to be one.”

Marshall said “the law evolves” and new precedents are possible, but DiReda said it would be more appropriate to raise such issues on appeal, not in pretrial.

Widdison said prior decisions have pointed to trends in prosecution decisions and jury sentencing practices as factors to consider, in addition to legislation.

“The court can resolve this and find that the beliefs of the citizens of Utah have evolved and the citizenry no longer supports the death penalty based on the objective indicia of juries and prosecutors,” Widdison said.

DiReda noted that of five Utah death penalty cases in the past 22 years, three resulted in death sentences, including the 2015 verdict against Douglas Lovell, convicted of kidnapping and murdering Joyce Yost of South Ogden in 1985.

“I’m not minimizing the egregiousness of the (Lovell) case, but on the spectrum of aggravated murder you can clearly find evidence of cases that were much more egregious in terms of torture, and yet the jury returned a verdict of death” against Lovell, the judge said.

Marshall called death penalty verdicts “bloodthirsty.”

“We don’t know how many potential jurors have been disqualified because they don’t have the stomach for the death penalty,” Marshall said. “Those folks don’t get on the jury in the first place, so we already have a skewed jury.”

DiReda responded that Marshall’s argument “is a little bit offensive to me” because “there are many fair-minded people who are willing to consider (the death penalty) as an option.”

Letitia Toombs, a deputy Weber County attorney prosecuting the Costello and Emile cases, said few homicide cases are charged as aggravated murder with a possible death penalty because of a deliberate screening process.

Many homicides do not include aggravating factors as listed in state law, such as vehicular homicides “and fights over girlfriends,” as examples, she said. Still more are excluded because of a defendant’s mental health issues, she said.

The standard for seeking the death penalty is whether prosecutors believe there is a “reasonable likelihood of a conviction and a 12-person jury voting unanimously” for a death sentence, Toombs said.

“If we’re talking about the consensus of the community,” she said, more than half of the time Utah juries “are voting for the death penalty.”

DiReda took the arguments under consideration and said he would issue a written decision in several weeks.

Costello and Emile have been held without bail in the Weber County Jail for almost four years.

According to previous coverage, police said the couple’s daughter was malnourished and had burns, cuts and bruises when her body was found in their home.

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

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