Attorneys for accused double murderer Tyler Michael Miller are asking a Flathead District judge to rule that Montana’s death penalty statutes are unconstitutional.
Miller, 34, has been charged with two counts of deliberate homicide for the Christmas Day shooting deaths of his ex-girlfriend Jaimi Hurlbert and her 15-year-old daughter Alyssa Burkett.
The Flathead County Attorney’s Office filed amended charges March 9 indicating it would seek the death penalty for Miller.
Miller’s attorneys Ed Sheehy and Noel Larrivee submitted a motion Wednesday stating that Montana’s death penalty statutes are unconstitutional because sentencing powers are vested in judges rather than juries.
The 19-page filing argues that the procedure violates the sixth and 14th amendments to the United States Constitution, which require that “other than prior convictions, any fact increasing the statutory maximum (sentence) must be submitted to a jury and proven beyond a reasonable doubt.”
The attorneys wrote that the Montana Code Annotated is flawed because it allows judges to evaluate whether or not there are mitigating or aggravating circumstances to support the death penalty and gives them the ultimate power to decide whether or not to pronounce a capital sentence.
Prosecutors wrote in their March 9 filing that the premeditated and brutal nature of the Dec. 25, 2010, murders warrant the death penalty.
Miller’s attorneys say that decision should be for a jury, not presiding District Judge Stewart Stadler.
Citing a 2002 U.S. Supreme Court ruling — Ring v. Arizona — Sheehy and Larrivee wrote that the sixth amendment requires juries to find the aggravating factors necessary to impose the death penalty. Montana grants those powers to judges.
The Supreme Court ruling noted that Montana and Arizona were among only four states that leave fact finding and sentencing determinations up to judges.
“Therefore, the court must determine that Montana’s statutory death penalty sentencing procedure is unconstitutional,” the motion states.
Montana law prohibits the death penalty when mitigating factors call for leniency, but prohibits juries from making that determination, the attorneys wrote.
“The effect of (state law) is that whether a defendant lives or dies ultimately depends upon a finding of fact determined by the judge alone, not the jury,” the attorneys wrote.
The filing also cites a ruling by the U.S. 9th Circuit of Appeals — Summerlin v. Stewart — in which the court held that juries, not judges, should decide whether or not the death penalty should be imposed.
“Juries are especially situated to ensure that unwarranted imposition of the death penalty does not occur,” the motion states. “The U.S. Supreme Court has emphasized that a death sentence must reflect an ethical judgment of the moral guilt on part of the defendant.”
Miller is next scheduled to be in court June 17 for a hearing that will determine whether or not media will be allowed to attend another hearing on whether or not Miller’s alleged confessions to law enforcement will be admissible at trial.
Miller’s trial is tentatively scheduled to begin in November.
It has been 28 years since the Flathead County Attorney’s Office has sought the death penalty.
Ronald Allen Smith, a native of Canada, was convicted of deliberate homicide in 1983 for murdering two men near East Glacier in 1982. The Montana Supreme Court upheld a stay of execution last year as Smith challenges the state’s method of lethal injection.
Reporter Eric Schwartz may be reached at 758-4441 or by email at email@example.com.