But after hearing arguments from Mauro and Deputy Davis County Attorney David Cole on Thursday, Dawson ruled that it was too early to bring up constitutional issues regarding the death penalty, since Sloop's case has not yet advanced past the preliminary hearing stage.
Also Thursday, Dawson ordered Sloop, 34, to stand trial on charges of aggravated murder, intentionally inflicting serious physical injury on a child, obstructing justice and abuse or desecration of a human body. A trial date will likely be set after Sloop's arraignment on Aug. 13.
Davis County prosecutors filed their intent to seek the death penalty against Sloop last December, and, in March, the 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.
During Thursday's arguments, Mauro said Shelby's Law was too broad and was "very poorly written," saying that the phrase "reckless indifference to human life" is never defined in the statute.
"We don't have a definition or limiting factor," Mauro said.
Cole did not argue any legal points of Shelby's Law during Thursday's hearing, only asking the judge to rule that Mauro's motion was premature and should be heard at a later date when the judge has seen more of the state's evidence.
"A preliminary hearing is not a full record," Cole said of the evidence. "It's not our entire case."
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 because she would not stop crying. He was originally charged in 4th District Court with aggravated murder, but pleaded guilty to the lesser crime of first-degree felony murder. He was sentenced to 15 years to life in prison.
Shelby's Law 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 couple pleaded guilty to first-degree felony murder and were sentenced to spend 15 years to life in prison.
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.
Sloop's wife and Ethan's mother, Stephanie Sloop, 30, faces essentially the same counts, but prosecutors have not said whether they intend to seek the death penalty for her. Stephanie Sloop's case is on hold until her husband's preliminary hearing is resolved, but she will be back in court on July 30 for a status conference.
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."
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.