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A St. George judge has amended a court order that would have allowed a murder defendant's lawyers to depose all of Utah's 29 county attorneys to determine why some seek the death penalty and some don't.
Attorneys for Brandon Perry Smith sought the depositions as part of an effort to have Utah's death penalty statutes deemed unconstitutional.
They contend in court papers that some 150 Utah inmates are serving terms of life in prison without the possibility of parole for crimes in which prosecutors could have sought the death penalty, but chose not to.
Smith, 34, is charged with aggravated murder and aggravated assault in the 2010 stabbing death of 20-year-old Jerrica Christensen. He has pleaded not guilty to the charges.
Washington County prosecutors are seeking the death penalty in the case.
In August, 5th District Judge G. Michael Westfall granted the request from Smith's attorneys for a three-day evidentiary hearing on the application of Utah's death penalty laws and set a February 2016 date for a review of the deposition process.
On Nov. 18, however, he changed course, saying in an amended order that before Smith can take depositions from state prosecutors he "must first that his prosecution has resulted in a discriminatory effect."
To do that Smith's attorney must provide "credible evidence" that his case meets the threshold standards for raising a selective prosecution claim, the judge wrote.
That includes evidence of Utah State Prison inmates whose cases include similar factual circumstances; evidence that Smith is of a different class than those inmates; and that Smith has been treated differently than others.
If Smith meets the threshold standards, Westfall said he will reconsider the issue.
In court papers, Smith's attorneys say that since 1992, the death penalty has been applied in "fewer than three percent" of cases with defendants eligible for the punishment.
"The infirmity of Utah's present scheme is apparent," attorneys Gary Pendleton and Mary Corporan wrote. "The exercise of prosecutorial discretion becomes arbitrary and capricious by definition when the law establishes no basis for determining when a death-eligible murder, as defined by statute, is charged as a capital offense and when it is charged as a noncapital homicide."
Smith is accused of beating Christensen and cutting her throat with a pocket knife moments after his friend, Paul Clifford Ashton, shot and killed Brandie Sue Dawn Jerden and shot and wounded James Fiske.
In court papers, Smith's attorneys have said he killed the woman because he felt threatened by Ashton.
Prosecutors have argued that Smith is cold-hearted and relished taking the life of a stranger.
They allege that several aggravating factors make the killing a death-penalty case: that Christensen was killed during a criminal episode in which two or more people were killed, that the homicide was committed incident to attempted kidnapping, that Christensen was killed to prevent her from testifying and that the homicide was committed in an "especially heinous, atrocious, cruel or exceptionally depraved manner."
Ashton is serving two life sentences in federal prison after he pleaded guilty in the apartment killings, and also admitted to kidnapping and aiding in the murder of a homeless man in October 2010.
A review hearing for Smith is set for Feb. 3.