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Ogden • A Utah judge on Tuesday refused to take a public defender off the case of a Roy day care owner accused of killing a baby who was in her care.
Tisha Morley, 35, is charged in 2nd District Court with child-abuse homicide, a first-degree felony, accused of fatally injuring 8-month-old Lincoln Penland in February 2014.
Prosecutors have asked that Morley's public defender, Logan Bushell, be booted from the case. Branden Miles, chief criminal deputy attorney for the Weber county attorney's office, argued Tuesday that years of delays in the case are unexplainable and inexcusable.
"We are a listless, drifting boat," he said. "We have been stranded at sea, waiting for Mr. Bushell to do something."
Miles argued that Bushell has asked for too many delays due to issues with finding an expert witness for trial. He said, as it is now, a trial likely won't be set until May or June 2017 — almost 31/2 years after 8-month-old Lincoln Penland suffered fatal injuries.
Bushell has too many cases to handle, Miles argued, telling 2nd District Judge Scott Hadley that the public defender has Morley's case, Weber County's drug-court and DUI-court cases, and others.
"I know of no other public defender that has so many balls to juggle," Miles said.
But Bushell argued in response that he takes his job very seriously, and that he doesn't believe he is overwhelmed with his caseload. The issues with an expert witness would have come up no matter who was defending Morley, he said.
"If at any point I felt like I was juggling too many balls to effectively represent Ms. Morley, I would have been the first person to approach your honor or my [public defender] coordinator," Bushell argued. "… The last thing I want to do is drag this out. That is not my intention, and it's not Ms. Morley's."
Bushell said Morley does not want him taken off her case and further argued that it sets a "dangerous precedent" when a prosecutor declares that a case is not moving fast enough and demands that a public defender be removed from a case.
"People are watching," he said. "It's not as clear cut [as the state has argued]."
The defense attorney also said that if he were removed from the case, another public defender would ask for further delays to familiarize himself or herself with the case.
Before his ruling, Hadley appeared to struggle with what prosecutors were asking him to do. He questioned whether appointing another public defender would get the case out of the "endless loop" that it's stuck in. The judge also called Morley's case "the poster child for not-a-speedy trial."
"I don't think it's a road the court should go down," Hadley said after ruling. "I don't think there is gross incompetence. I think it's just unavoidable delays. It does affect the Penlands, and I feel awful for them having to watch this circus."
Morley is due back in court on Aug. 2.
She has been out on bail since her April 2014 arrest and has since moved out of the state. She sat quietly at the defense table Tuesday and did not speak in court.
On Feb. 19, 2014, Lincoln's father went to pick up the baby, along with the child's 3-year-old brother, at Tots and Tykes Day Care. He found the baby cold and unresponsive.
The child, who was flown to Primary Children's Hospital in Salt Lake City, died Feb. 28.
Lincoln suffered a skull fracture and trauma to the brain from shaking and impact-inflicted trauma, according to Roy police officials.