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Lawyers for a Utah man accused in the shooting death of a sheriff's deputy said Monday that federal charges filed against him after he was acquitted in a state trial are double jeopardy, and they're appealing a judge's refusal to toss the case.
Defense attorney Stephen McCaughey said after a court appearance Monday that he plans to appeal up to the U.S. Supreme Court if a federal appeals court sides against the defendant, Roberto Miramontes Roman, 42.
"It's just not fair to do two trials on the homicide," he said.
Roman has pleaded not guilty. If convicted, he could face a maximum sentence of life in prison.
Roman says he didn't shoot Millard County Sheriff's Deputy Josie Greathouse Fox during a 2010 traffic stop. He was in a car with Fox's brother, Ryan Greathouse, at the time and says it was Greathouse who shot and killed her with an AK-47 when she pulled them over after they smoked methamphetamine together.
Greathouse, 40, died of a drug overdose in Las Vegas months after his sister's death. Before he died, Greathouse told deputies he bought drugs from Roman and another man shortly before his sister was killed, authorities said.
Roman initially confessed to killing Fox, but he professed his innocence during a 2012 trial, saying that Greathouse had threatened him. A state jury found enough reasonable doubt to acquit Roman in the slaying, though he was convicted on charges of evidence tampering and gun violations and sentenced to up to 10 years in prison.
Federal prosecutors filed charges after Roman was acquitted in the death. Defense attorneys pushed back, saying the federal government had expressed no interest in prosecuting Roman until he was acquitted of murder, and the charges were an attempted at a "do-over."
Trying someone twice for the same offense, known as double jeopardy, is prohibited by the Fifth Amendment. But U.S. District Judge David Nuffer ruled last year that new charges are legal in the death of the 37-year-old deputy because the federal court system is separate.
The defense has appealed that ruling, which is now before the 10th Circuit Court of Appeals in Denver. Prosecutor Trina Higgins said during the hearing that the U.S. Attorney's Office for Utah is expecting a decision relatively soon.
The double-jeopardy argument hasn't gotten much traction with judges in other cases, though McCaughey said it hasn't been considered recently at nation's highest court and some legal scholars think it could be time to do so.
U.S. Magistrate Judge Dustin Pead scheduled a new hearing in the case for July 13. Roman did not appear at the Monday hearing.