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Attorneys for Utah parents in child neglect murder case want jurors to know death penalty costs more than life in prison

Brenda Emile and Miller Costello both face a charge of aggravated murder in the 2017 death of their emaciated daughter

SHARE Attorneys for Utah parents in child neglect murder case want jurors to know death penalty costs more than life in prison

Miller Costello listens to opening statements during a preliminary hearing on Friday, Feb. 9, 2018, in 2nd District Court in Ogden. Costello and Brenda Emile have been charged with aggravated murder in the death of their 3-year-old daughter.

Sarah Welliver

OGDEN — Defense attorneys for the Ogden couple charged in the 2017 death of their malnourished 3-year-old daughter want the death penalty taken off the table.

But if lawyers for Brenda Emile and Miller Costello don’t succeed in doing so, they say they want a jury to know that a state execution is more expensive than a life sentence in prison.

“It occurred to me that that there’s a real misunderstanding out there about the cost of the death penalty, that frankly, it’s a lot cheaper to keep someone alive than it is to kill them under this system,” defense attorney Randall Marshall said Friday in a hearing held over videoconference in Ogden’s 2nd District Court.

Prosecutors are pursuing the death penalty for Emile, 26, and Costello, 28. Both have pleaded not guilty to a charge of aggravated murder, a first-degree felony.

Investigators reported finding the couple’s deceased daughter so malnourished and neglected that they compared her to a Holocaust victim, noting the 13-pound skeletal figure had sunken eyes, thinning hair and little to no muscle.

Judge Michael DiReda didn’t rule from the bench Friday on the defense motion to explain the costs to potential jurors. He said he would instead issue a written decision at a later date.

A 2018 Utah study pinpointed the difference at about $238,000, while an earlier analysis identified a gap greater than $1.6 million per case, Marshall wrote in court filings. He said potential jurors in a prior Utah case mistakenly presumed the death penalty is cheaper, a factor they said would lead them to choose the death penalty for a defendant.

Defense attorneys in the case have previously argued Utah’s death penalty law allows for cruel and unusual punishment. They also argue that after a jury has returned a guilty verdict, the law puts an unfair burden on defendants to show they don’t deserve the death penalty.

Prosecutors have pushed back, saying a jury doesn’t need to have a complete understanding of the costs, in large part because the dollar amount isn’t tied to a person’s guilt or the appropriate punishment.

Deputy Weber County Attorney Nicholas Caine said Friday the question is whether jurors can set those sorts of beliefs aside and weigh the case based on the evidence, not their own presumptions.

Caine said the sentencing portion of a trial gives a defendant a chance to make a case against the death penalty and present mitigating evidence, but it’s still on prosecutors to demonstrate why capital punishment is appropriate.

In 2017, when police responded to the couple’s Ogden home, they found 3-year-old Angelina Costello’s cold body in a pink blanket and covered in a layer of makeup allegedly applied to disguise her injuries, court documents say.

Prosecutors at a 2018 preliminary hearing presented photos and videos from the couple’s phones that showed the child appearing increasingly bruised and injured as her two siblings remained healthy, with her mother apparently taunting her with food and her father asking if she is “evil.”

The state alleges the two have ties to an itinerant community and have alternative names and addresses in multiple states.

A jury trial has not yet been scheduled as cases are being postponed due to COVID-19 restrictions.