Ogden • Debate over Utah’s death penalty is intensifying in 2nd District Court as attorneys prepare for the trial of an Ogden couple accused of starving and fatally abusing their 3-year-old daughter.
Prosecutors said earlier they will seek the death penalty against Miller Costello, 28, and Brenda Emile, 25, if they are convicted of aggravated murder in the July 6, 2017, death of Angelina Costello.
Over the past year, defense attorneys have filed several motions challenging the death penalty, including those asking that jurors be questioned about blood atonement and the comparative costs of execution versus life in prison.
They also have asked Judge Michael DiReda to strike the death penalty as “cruel and unusual punishment by practice and the consensus of the Utah citizenry” and because they contend the sentencing portion of the law unfairly shifts the burden of proof to defendants.
Last week, the Weber County Attorney’s Office filed documents rebutting the assertion that there’s a public consensus against the death penalty.
“The Legislature and the people have spoken and the consensus is clear, when a jury, having been fully apprised of the facts, evidence, and circumstances of a particular case, find that a punishment of death is appropriate and justified, the death penalty should be an available option for consideration at sentencing,” the prosecution said.
DiReda has set an Aug 3 hearing but canceled a previously set fall trial date, given concerns about the ability to conduct an in-person capital punishment trial during the COVID-19 pandemic.
A defense motion filed Feb. 21 argued Utah’s death penalty is cruel and unusual because in 1,043 intentional homicides in Utah from 2000 to 2018, only one resulted in a death sentence and Utah has performed just one execution.
But county prosecutors argued in their Monday response that contrary to the defense’s contention that the death penalty is “functionally abolished,” juries continue to consider and impose it.
For instance, in Weber County in the past decade, only one case was presented to the jury with an option to impose death. In that case, the jury found that the death penalty was warranted — against Douglas Lovell in the 1985 murder of Joyce Yost of South Ogden.
“Therefore, the only objective evidence of the ‘consensus’ of the citizens of Weber County is that the death penalty is still supported and, when found appropriate under the heavy weight of the statutory construction, will be imposed,” the prosecution said.
In a May 14 filing, county attorneys likewise urged DiReda to reject the defense’s request to allow defense lawyers to quiz prospective jurors about death penalty costs.
“Questions of deterrence or cost in carrying out a capital sentence are for the Legislature, not for the jury considering a particular case,” the prosecution said.
Admitting evidence on death penalty costs “is akin to admitting evidence of the process of the death penalty, which has already been rejected by the Utah Supreme Court,” prosecutors said.
They added, “inviting the jury to determine whether the cost of the death penalty is worth it for a person that may be convicted of starving and physically abusing a three-year-old girl to death is very dangerous ground for the defendant.”
The defense had argued in its Jan. 21 filing that there’s ample evidence that imposing the death penalty far exceeds the cost of imposing a life sentence.
The Utah Commission on Criminal and Juvenile Justice published a study in 2018 determining that the average cost of an execution was at least $237,900 more than a decision of life in prison.
A more limited 2012 Utah study said the difference was as much as $1.6 million per case.
The defense noted that in the 2009-15 case of Weber County double-murder convict Jeremy Valdes, two dozen or more potential jurors said in their questionnaire that they would choose the death penalty over life in prison because they thought it would cost less to execute the defendant.
“Of course, that is not true,” the defense motion said. “It is incumbent upon the court to ensure that the citizens who comprise the jury pool are well-informed. And those who would otherwise make good jurors should be educated as to the cost imposing the death penalty so they can be properly rehabilitated.”