Unclear state code snarls trial

PROVO — In the American legal system, people charged with a crime are innocent until proved guilty in court. However, two defense attorneys in Provo are questioning a section of state code that seems to compel them to prove their client's innocence rather than simply provide a legal defense.

"Our position, frankly, is that in no criminal trial does the defendant, before a trier of fact (a jury or a judge) have any burden," said defense attorney Tom Means. "It's the state's burden, and that burden is always beyond a reasonable doubt. The core issue here is does the defendant have any burden?"

The defendant is Eryk Drej, 33, charged with first-degree felony murder. He's accused of shooting his brother at least 10 times on June 1, 2005.

Attorneys say the burden of proof is complicated in this case because it involves a "special mitigation" used by defense attorneys when trying to prove that an individual charged with criminal homicide was mentally ill at the time of the alleged crime.

Utah State Code isn't clear about who must present evidence to the jury about Drej's alleged delusional state at the time of the crime.

Prosecutors don't want the charge reduced from a first-degree felony to a second-degree felony as a result of the special mitigation, but the defense attorneys argue it's not their job to meet the special mitigation burden of proof.

Police say Drej told officers he shot his brother in the driveway of their American Fork home to prevent his brother from killing a woman and selling her organs on the black market. He also told police he placed yellow smiley faces throughout his house as a warning to his brother and to ward off evil spirits.

Drej was twice declared incompetent to proceed with a trial but was later deemed mentally fit to stand trial after undergoing treatment at the Utah State Hospital, where he is still housed.

Drej's court-appointed attorneys, Means and Andy Howell, plan to argue that a mentally ill Drej shot his brother in a deluded state, thinking he was protecting others.

If people on a jury were to find Drej guilty of murder, their next step would be to evaluate his delusion. If that delusion had been reality, would Drej have been justified in shooting his brother, thinking he was protecting others? If they agreed, Drej could be sentenced on a second-degree felony rather than a first-degree felony.