"In this case I think they have a pretty solid basis of charging that crime based on the cases that have come down in other courts," McCaughey said.

McCaughey filed two motions to have the second murder charge dismissed, arguing that the state could not constitutionally charge a person with the murder of a non-viable fetus. Both motions were denied, and McCaughey eventually recommended that Myers accept prosecutors' offer rather than pursue the issue to a state appellate court.

And that, York said, is where McCaughey erred.

"To that degree, everybody sort of let the system down by so readily accepting that there were two persons without challenging the law," he said.

But to challenge the constitutionality of the 1985 law that allows for prosecution in the death of an "unborn child" would have been risky, Assistant Attorney General Christopher Ballard wrote in the state's Supreme Court brief.

"Had he pursued an interlocutory appeal and lost, petitioner would have also lost any plea bargaining power he had," Ballard wrote.

McCaughey "wisely counseled" Myers to accept the state's deal, the state maintains. Without it, Myers faced "a substantial risk of receiving two death sentences."

At the time, McCaughey said he wasn't "overly concerned with the death penalty" and was focused instead on obtaining a sentence that allowed for the possibility of parole one day.

In April 1996, the state Board of Pardons and Parole recommended that Myers never be freed and spend his natural life behind bars. Department of Corrections spokesman Jack Ford said Myers has had no major problems in prison, and could, at some point, request a rehearing before the parole board. The request would need to be accompanied by a recommendation from the Corrections Department, and even then the board is not required to take a second look at its earlier recommendation.

Statute challenged

York will ask the five Supreme Court justices to send Myers' case back to the trial court and perhaps set the stage for a trial in the matter. The action could also bring about a more direct challenge to the unborn child statute, which York believes lacks the teeth to be enforced.

Myers could be helped or hindered by a very similar case now pending before the Supreme Court.

In April, the court heard arguments in the case of Roger Martin MacGuire, a Davis County man charged with two counts of capital murder in the January 2001 murder of his pregnant ex-wife. Attorneys argue the criminal homicide statute is unconstitutionally vague because it fails to define the term "unborn child."

The state argued in the MacGuire case, and again in papers filed in the Myers case, that the term intends to cover fetuses from the point of conception until birth.

For York, who helped write the MacGuire appeal, that argument may be a ways off in the Myers case. For now, he said, it's about making sure Myers was afforded his full legal rights seven years ago.

"As much as anything, when the case gets before the Supreme Court it's about seeing that justice is always done in the legal system," he said. "I just don't think that Mr. Myers got it the first time around."

---

E-MAIL: awelling@desnews.com