Steven Ray James should not have been charged with first-degree murder in the death of his infant son because Utah's homicide statute permitted prosecutors to unfairly use James' prior kidnapping conviction against him, a defense attorney argued Wednesday before the Utah Supreme Court.

In addition, attorney Robert Gutke argued that the justices should order a change of venue in the case because pervasive media coverage will make it impossible to get unbiased jurors in the small Cache County community."From my observation, there is still a vigilante-type atmosphere two years after the fact," Gutke said.

Assistant Utah Attorney General Sandra Sjogren said Utah's murder statute could perhaps be improved, but she argued that it nonetheless does meet constitutional requirements.

She also conceded that James' argument that pretrial publicity necessitated a change of venue was stronger than many other cases. But she said there is as yet no indication whether potential jurors were tainted. She suggested that potential jurors either be interviewed or polled to determine possible prejudice.

"A poll is not necessarily ruled out in this case," Sjogren said.

James was charged with first-degree murder in the October 1986 death of his 3-month-old son, Steven Roy James. The infant's body was later found wrapped in a blanket and anchored with rocks in a marsh near the Bear River.

James told police the infant was abducted from his pickup truck while it was parked outside a Logan pharmacy. James has not yet been tried and is being held in the Cache County jail, unable to make bail.

Gutke decided to appeal the case before trial because he believes Utah's murder statute is unconstitutional in that it allows prosecutors to charge first-degree murder by using prior convictions on relatively minor crimes as aggravating circumstances.

James pleaded guilty in California 10 years ago on charges that he kidnapped a woman at knife point. Prosecutors are using that guilty plea to charge James with first-degree murder, but Gutke said that is unfair because James' conduct in the criminal episode would constitute only a misdemeanor in Utah.

Gutke is also concerned that Utah law allows a prosecutor to state the prior offense in the charging documents, thus tipping jurors off that the defendant has a criminal record.

Sjogren argued that jurors could be told to disregard the defendant's prior record during the "guilt phase" of trial. Then, if a guilty verdict was reached, the jurors would consider the prior offense in the "penalty phase."

But Justice Michael Zimmerman said such an instruction "is like telling jurors to ignore the white elephant at the back of the courtroom."

Sjogren conceded the process could be made fairer, but she argued that to state prior offenses in the charges is not so unfair as to violate constitutional due process guarantees.