OGDEN — Attorneys for an Ogden man facing a death penalty trial are having him evaluated for intellectual disability, raising the possibility that the capital punishment option could be eliminated.
Miller Costello, 30, and his wife, Brenda Emile, are charged with first-degree felony aggravated murder in the July 2017 death of their 3-year-old daughter, Angelina Costello. Charging documents alleged the couple subjected the girl to horrible injuries and ongoing abuse and malnutrition.
During a 2nd District Court hearing on Friday afternoon, Judge Michael DiReda acknowledged a motion filed Wednesday by Costello’s attorney, Randall Marshall. The motion said Costello “intends to claim, and to offer evidence, that he is exempt from the death penalty” due to intellectual disability.
Under state law, such an exemption takes effect if the court determines a defendant “has significant, subaverage general intellectual functioning (and) significant deficiencies in adaptive functioning, primarily in the areas of reasoning or impulse control.”
Marshall said defense experts have evaluated Costello for the disability, and DiReda said he would take the next step as determined by state law: A court request to the Utah Department of Health and Human Services to assign at least two experts to evaluate Costello.
If the state experts report that Costello has the disability, Weber County prosecutors would have the option of rebutting the finding with additional expert evaluation. This process could take several months, which led DiReda to cancel Costello’s scheduled August trial. The trial now might not be held until 2023.
DiReda said he was perplexed about why Costello’s defense team had not raised the intellectual ability issue until now, nearly five years after the crime.
“It should have been done sooner,” responded Marshall, a court-appointed attorney who handles numerous murder cases in the Ogden court. “I don’t make excuses, but there was quite a period of time during COVID that I struggled.”
Emile is scheduled to go on trial in October. She and Costello have been held in the Weber County Jail since their daughter’s death.