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Murder-case tools please prosecutors

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There has not been a huge amount of publicity about it, but the Utah Legislature in the past couple of years has handed county prosecutors a number of new or revised legal tools for handling murder cases.

Among them:

• A change in state law permitting prosecutors to charge someone with a capital crime if the individual kills a child younger than age 14.

• A statutory change allowing prosecutors to decide well into the process of an "aggravated murder" case whether or not they're going to seek the death penalty.

• An increase in the sentence for non-capital murder from the former five-years-to-life to 15-years-to-life, with the state board of pardons deciding how long a person spends behind bars after the minimum portion of the sentence has been served.

"We're very excited about having these additional resources for prosecution of these cases," said Salt Lake County District Attorney Lohra Miller.

She specifically noted the possibility of the death penalty being imposed for a person convicted of murdering a child.

"They present some of our most serious offenders and the additional resources (law changes, not money) allow us to treat those cases as our most serious offenders," Miller said.

Miller said her office will "pursue them very aggressively" if such child-murder cases occur in Salt Lake County and the facts fit the law sufficiently to ask for the death penalty.

She does not expect more people will end up on death row. Instead, she anticipates this legal change will prompt more plea bargains, which she says is a good thing since it spares the victims' survivors the ordeal of a trial.

Davis County Attorney Troy Rawlings also hails these changes as beneficial for prosecutors, although he notes that plea negotiations are always case-specific and depend on the facts involved in a particular alleged crime.

Plea bargains for such a crime so serious as murder are usually complex back-and-forth negotiations where defense attorneys and prosecutors must take into account the facts, the strength of the case, any mitigating factors that might work in the defendant's favor, the possibility of mental health issues affecting the defendant and a myriad of other details, Rawlings said.

That said, these legislative changes "help us make a thoughtful, contemplative decision" and charge certain cases now as aggravated murder when it could not be done before, Rawlings said.

"You have to know and appreciate and understand how those factors fall out, and discuss with law enforcement their thoughts and feelings and — most important — the victims in the case to get their feelings and offer explanations when possible," Rawlings said.

"I don't necessarily see this changing the nature of how plea negotiations operate in these cases," Rawlings said. "I see the changes helping prosecutors to make better decisions about which cases should be capital."

But there is no question the possibility of a death sentence might influence things on the other side. "That jeopardy that hangs over a defendant now could impact a defendant's decision to plead. It may impact a prosecutor's decision not to offer a plea bargain," he said.

Robert Stott, a veteran prosecutor for the Salt Lake County District Attorney's Office, said the new provision regarding aggravated murder is an immense help for prosecutors.

Previously, prosecutors charged an individual with capital murder at the start of a case, often quite soon after the person was arrested but little was known about the individual's background. Now prosecutors can file a charge of "aggravated murder" and not announce whether they plan to seek the death penalty until 60 days after arraignment, which is a long way into the legal process.

In Utah courts, suspects first make an initial appearance in court, then they may have various motion hearings, then a preliminary hearing in which a judge listens to evidence and decides whether a crime has been committed and whether it is likely that the arrested individual committed it. If so, the person is bound over for trial. An arraignment follows after that.

Anecdotal evidence suggests the average felony case in the Wasatch Front takes more than a year to resolve, and it is not uncommon for murder cases to take two or three years, or even longer, to work their way through the system.

"Under the old statute, which was there for over 30 years, the penalty for aggravated murder was one of three: either death, life without parole, or 20-years-to-life in prison," Stott said.

"Even if you didn't want the death penalty, you had to charge it as an aggravated murder and it was treated as a capital case. In those cases, a lot of things apply that do not with another murder case: you have to have a 12-person jury, the jury decides the penalty and you have to have a (death penalty case) qualified attorney," Stott said.

Stott said it was uncomfortable to charge someone with a capital case when the district attorney's office was not planning to seek the death penalty — a situation that was "almost a charade."

The amended law gives prosecutors a huge luxury — more time.

They can study the facts of the case and such significant issues as mitigating factors that could come into play in a death penalty case such as the defendant's mental health history, personal background and even his or her IQ.

The U.S. Supreme Court ruled in 2002 that mentally retarded persons cannot be executed, which has affected at least two cases in Utah, those of convicted murderers Robert Overstreet and Lee Roy Wood, whose low IQs were determined to fit that category.

Utah County Attorney Jeffrey Buhman also said he appreciates having more time to make a decision on something as important as a potential death penalty case.

"Frankly, it gives us more flexibility. Nothing prevents us from going down to murder (by amending capital charges to a lesser crime) but it's more difficult to go up to aggravated murder," he said. "Generally speaking, a defense attorney is not going to argue if you lower charges."

His office was possibly the first to utilize the new aggravated murder law when it charged Jason Mike Putnam, 23, of American Fork in connection with the June beating death of Putnam's 20-month-old son, Jordan.

Buhman recently had reason to be grateful for the extended time in decision-making in such cases: He was interviewed on a day when a hearing in Putnam's case was scheduled, but the medical examiner's report still was not available — which is absolutely essential to prosecutors and defense attorneys determining how to proceed with a case.

"It is beneficial to the state and the defendants to have more time to gather evidence and review it," Buhman said. "It lets us make a more reasoned decision. You don't want to go down the path of a capital case when it's not the best decision, and you can't make those types of decisions without all the information."

E-mail: lindat@desnews.com