Prosecutors have framed Sloop's charges based on "Shelby's Law," a 2007 amendment to Utah's homicide statute which allows prosecutors to seek the death penalty without having to prove a killing was intentional when a child dies during an act ofabuse, sexual assault or kidnapping.
But Sloop's attorneys plan to challenge the law, saying it is unconstitutional for a person to be condemned to death if they didn't intend to kill another.
Attorney Richard Mauro said the death penalty is reserved for only "the most heinous" murderers, adding that not every murder case is eligible for the death penalty unless there is some aggravating factor.
"Somebody that didn't intend to kill somebody can't be in that category with the heinous murderers," Mauro said Thursday during a phone interview.
The Sloop case is the first time defense attorneys have challenged the 2007 amendment to Utah's homicide statute.
Victor Gardea was the first person to be charged under the new amendment, when in 2008, he killed his 4-month-old daughter after punching her twice when she would not stop crying. He was originally charged in 4th District Court with aggravated murder, but he took a plea deal and pleaded guilty to the lesser crime of first-degree felony murder. He was sentenced to spend 15 years to life in prison.
Davis County Attorney Troy Rawlings would not comment about Sloop's case and Shelby's Law, which was named after 10-year-old Shelby Andrews who died in 2006 in Syracuse after a year of abuse at the hands of her parents.
In an effort to control and discipline the girl, her father and stepmother beat her, forced her to eat her own feces and shut her inside a cramped linen closet.
Ryan and Angela Andrews did not face a potential death sentence because existing law didn't allow prosecutors to file aggravated murder charges unless they could prove the girl's death was intentional. The Andrewses pleaded guilty to first-degree felony murder and were sentenced to spend 15 years to life in prison.
"There was just a tremendous public outcry that this was such a horrible crime," according to Paul Boyden, executive director of the Statewide Association of Prosecutors. "Why wasn't it a capital case?"
Outrage over Shelby's death spurred Utah lawmakers to toughen the penalties for murdering a child, and in 2007 Shelby's Law was signed by Gov. Jon Huntsman Jr.
Last month, Davis County prosecutors invoked Shelby's Law by filing amended charges against Sloop, alleging he was "a major participant" in Ethan's death, and that he acted with "reckless indifference to human life." The initial murder charge, filed in 2010, alleged Sloop "intentionally or knowingly" caused the boy's death.
Sloop, 34, is charged with aggravated murder, intentionally inflicting serious physical injury on a child, obstructing justice and abuse or desecration of a human body.
Sloop's wife and Ethan's mother, Stephanie Sloop, 30, faces essentially the same counts, but she has not been charged under Shelby's Law, nor have prosecutors said they intend to seek the death penalty for her. Stephanie Sloop's case is on hold until her husband's preliminary hearing is resolved.
Earlier Friday during Sloop's preliminary hearing, a burn expert testified that scalding injuries suffered by Ethan contributed to his death.
Dr. Jeffrey Saffle, the former director of the Intermountain Burn Center, testified that Ethan had burns on 17.5 percent of his body.
"There would obviously be a tremendous amount of pain" associated with the second- and third-degree burns, Saffle said.
Saffle said the burns would have contributed to Ethan's death by causing fluid loss and dehydration. But with proper care, Saffle said, Ethan likely would not have died from the burns though he likely would have needed specialized treatments, including skin grafts, rehab and hospitalization.
Saffle said the wounds would be concerning to him as indications of child abuse.
"I would not expect a healthy 4-year-old to suffer a wound like this," he told the court.
Saffle came to his conclusions based on photos of Ethan's body, having never examined him in person.
During three days of previous testimony in March, law enforcement officers and medical experts told how the boy died from a combination of scalding injuries, drug toxicity and aspiration pneumonia, and how Nathan Sloop led law enforcement to the boy's badly beaten body three days after Ethan died.Investigators believe Ethan died on May 8, 2010.
Charging documents state the Layton couple engaged in multiple acts of "severe abuse" between April 29 and May 8 in 2010 that led to Ethan's death, including "beatings, burning, drugging, isolating, malnourishing, leaving the child alone and unattended while suffering, and refusing to seek vital life-sustaining medical attention."
According to police probable cause statements, Stephanie Sloop told police that on May 7, Nathan Sloop told her Ethan had burned himself by turning up the hot water when Nathan Sloop left the bathroom. But Nathan Sloop admitted to police that he had scalded the boy, according to testimony.
The couple who said they left the injured boy in a locked bedroom while they got married on May 6 reported Ethan missing to police on Mother's Day, May 10, after discovering the boy was dead.
But after a 12-hour search, police say the couple confessed to burying the boy near Powder Mountain Ski Resort in Weber County.
Nathan Sloop, who led officers to the body on May 11, told police he used a hammer to disfigure the boy's face and teeth in an effort to hinder identification.
Dog food was sprinkled on the boy's unmarked grave.