Myers was charged under the provision that allows capital murder charges if the murder was committed as part of one "criminal episode during which two or more persons were killed."

And for York, therein lies the problem. There is absolutely no proof, he said, that two people died at Myers' hand in December 1994.

"The state of Utah never treated this unborn child as a person for any other reason than attempting to strong-arm Mr. Myers," York said. "And I don't think that's the way the legal system ought to work."

According to York's Supreme Court brief, the trial court never acknowledged a key problem in the case — that Myers was charged with a double homicide, but there was only evidence of one homicide victim on the record.

There was never any death warrant issued for the fetus, estimated to be between 16 and 18 weeks old, the brief notes. Nor were any other steps taken that normally occur when the state medical examiner takes custody of a deceased person.

"In fact, the only occasion that the state of Utah has chosen to treat this non-viable fetus as a full person is for the purposes of imposing the death penalty on (Myers)," according to the brief.

According to the state's Supreme Court brief, Myers, 20-year-old Christensen and another man were driving toward Park City shortly after midnight on Dec. 3, 1994, in heavy snow. They came upon an unplowed road, and the three got out and walked toward Rockport Reservoir State Park. Myers and Christensen embraced, and then Myers stabbed her at least 12 times with the 4 1/2-inch blade, documents state.

The two men left the area, leaving Christensen in a snowbank. Her frozen body would be found by a snowmobiler 15 days later.

The other man told police that Myers later expressed regret for killing Christensen because she was pregnant, but said he did it because she broke into his apartment and stole some of his personal items, documents state.

An autopsy of Christensen's baby showed a 16- to 18-week-old male fetus that was 7.7 inches long. A state medical examiner testified that the fetus was alive immediately prior to Christensen's death, and died because she died. However, the fetus most likely would not have been viable outside of his mother's womb, the medical examiner testified.

Disputed defense

Myers' original defense attorney, Steve McCaughey, disputes York's argument on appeal that Myers received ineffective assistance of counsel.

He noted the eyewitness testimony to the crime and a later, taped confession Myers provided to police. Combined, the two elements make for a strong case against Myers and a likely guilty verdict had the case gone to trial.