ST. GEORGE — The prosecution in a 2010 double-murder case said the death penalty is now “off the table” for a suspect involved. The move was done at the request of the victim’s family who want the case to be resolved sooner rather than later as the issue has been batted back and forth between dueling motions.
“We have been talking with the victim’s mother in the case for some time,” Deputy Washington County Attorney Ryan Shaum said. “It was her desire to get this case moving.”
The Washington County Attorney’s Office filed its intent to seek the death penalty for Brandon Perry Smith, 34, in January 2014. Smith is accused of killing 20-year-old Leeds resident Jerrica Christensen Dec. 11, 2010. Smith was subsequently charged with first-degree felony aggravated murder.
Smith’s co-defendant, Paul Ashton, was sentenced to life in prison for the murder of 27-year-old Brandie Jerden and the attempted murder of James Fiske.
Since the prosecution’s notice to seek the death penalty, the defense has filed motions to attempt to have the option removed and to have the death penalty declared unconstitutional by the court.
“In light of our notice to seek the death penalty — that causes much more delay in the proceedings in litigating the death penalty issues,” Shaum said. “Taking that off allows us to move this case along much quicker (and) allows (the victim’s family) to get a quicker resolution, at least on the legal issues, at a quicker rate.”
Though the death penalty is no longer on the table, Shaum said the prosecution believes there is enough evidence to secure a murder conviction.
“We felt we could retain justice and get the case resolved short of seeking the death penalty,” Shaum said.
Ellen Hensley, Christensen’s mother, who has been attending court hearings since the case began, said she was happy the case can now move forward. Multiple attorneys she consulted told her the case could carry on for another five years due to the continuing battle over the death penalty.
“We deserve to be able to move forward with our lives, to put this nightmare behind us,” Hensley said. “We can’t do that as long as we keep coming back to court.”
Members of Smith’s family were also present in the courtroom Wednesday. Following the hearing they also said they are glad the death penalty has been removed.
Gary Pendleton, Smith’s attorney, was also pleased. It makes his job a little less complicated, he said, although the dynamics of the case have changed.
“It changes a lot, drastically,” Pendleton said.
As the case will no longer be one of capital murder, Mary Corporon, who was brought in as co-counsel funded by the state’s Indigent Defense Fund, could be removed from the case. It is a matter the attorneys will be addressing as the case moves forward. Should Corporon’s services end up being defunded and leaving, Pendleton will have to take on case matters Corporon had been addressing.
The removal of the death penalty also makes way for issues that haven’t been addressed yet, Pendleton said.
One of those issues relates to 2009 legislation that removed the burden of proof from the prosecution to the defense in homicide cases where the suspect was under “extreme emotional distress.” The defense has to prove that the extreme emotional distress is a mitigating circumstance justifying a manslaughter charge and not a murder charge. In a motion filed last month, Pendleton wrote:
The net result of these amendments is that an offense that was formerly punishable as manslaughter may now be punished as capital murder unless the defendant is able to carry the burden of proving that he acted under extreme emotional distress.
“That, to me, is a significant issue,” Pendleton said Wednesday.
Fifth District Judge Michael G. Westfall set a July 1 deadline for the filing of any new motions. A possible two-week trial date has been tentatively set for sometime after mid-October.
In addition to a new motion regarding the 2009 legislation, Pendleton said he plans to get video testimony of a woman who knew Smith when he was a grade school student. The woman was a school counselor at the time, Pendleton said, and will testify to Smith’s personality and the extreme emotional distress issue.
Pendleton has long said that his client was manipulated into killing Christensen.
Christensen would have been 26 years old on Friday, Hensley said. The family will be visiting her resting place with birthday cake, she said.
“It’s funny how her birthday is harder than her death date … simply because she loved her birthday,” Hensley said. “(I) don’t want to forget about birthdays.”
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