Springville pair's motion rejected

PROVO — The child-abuse murder charge against a Springville couple survived Tuesday despite an attempt by defense attorneys to have it dismissed.

Fourth District Judge Claudia Laycock ruled against Richard and Jennete Killpack's motion to quash another judge's ruling that there is enough evidence to hold a trial in the death of the couple's 4-year-old girl. Cassandra Killpack died after she allegedly was forced by her parents to drink too much water as a method of punishment.

Laycock didn't set a trial date, however, because attorneys for the Killpacks plan to ask the state court of appeals to reverse Laycock's ruling. That process could take four to six weeks.

Judge James Taylor presided over the preliminary hearing, which consisted of four days of testimony spread across five months. On Oct. 8, Taylor bound over the case for trial.

At the preliminary hearing, witnesses said the Killpacks bound 4-year-old Cassandra Killpack's arms and forced her to ingest an estimated two quarts of water as punishment for taking her sister's drink.

Police and prosecutors say Cassandra's death was the result of severe brain swelling caused by the water.

Defense attorneys Mike Esplin and Phil Danielson argued Tuesday that the child-abuse homicide statute is confusing and is being misapplied by prosecutors and both judges. They believe it requires a level recklessness that a reasonable person ought to realize could cause death.

"I concur with Judge Taylor," Laycock said. "I don't think additional intent of recklessness is required as to the actual causing of death. It very simply means the recklessness goes to the actions involved in committing the crime of child abuse."

However, Laycock agreed that the statute is confusing and cited a similar statement by Christine Durham, the chief justice of the Utah Supreme Court. In fact, Laycock said the charge in the Killpack case required a careful reading of three statutes covering child-abuse, murder and child-abuse homicide.

"The statute would read more clearly if they switched some things around," the former English teacher said. "We have an actor, we have an action and we have a result. The actor is the defendant, the action is those actions that are child abuse and the result is the death."

She even suggested new language to improve the law — "Criminal homicide constitutes child-abuse homicide if the actor commits the crime of child abuse, which results in the death of a person under the age of 18."

Esplin said the appeal must be made before the trial because it could affect the instructions given to a jury.

"We're not as convinced as the court is about the clarity of the statute," Esplin told Laycock. "I think the issue is one the Court of Appeals would be willing" to hear.

Prosecutors also have filed a motion to have Laycock reconsider Taylor's decision to toss out a third-degree felony charge of child abuse. Taylor said the prosecution did not adequately prove that Cassandra's sister, then 7, suffered severe emotional trauma while witnessing Cassandra's death.

Laycock scheduled a Feb. 19 hearing on that issue.

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