Cook said an appeal of a decision handed down Wednesday by the 12th District Court of Appeals based in Middletown will be filed by the end of next week in Columbus.
Pagan and Cook challenged the constitutionality of a criminal rule that allows a death penalty defendant to have his or her sentence decided only by a three-judge panel.
The attorneys asked Butler County Judge Andrew Nastoff to allow a jury to consider sentencing, but that motion was denied, then Pagan and Cook filed an appeal. The appellate court granted the prosecution’s motion to dismiss the appeal, stating it was not a motion the judges could consider because it is not a final order in the case.
Pagan argued that Avila-Villa had confessed to killing her infant and would like to plead guilty, obtain the benefit of that guilty plea as a mitigating factor, and try her sentencing case before a jury.
“According to the Ohio Public Defender, Butler County’s three-judge panels imposed a death sentence 60 percent of the time in the last 10 years. In contrast, Butler County’s juries have never imposed a death sentence during the same period,” Pagan said in court documents.
The defense team also plans to file an additional appeal with he 12th District court concerning Nastoff’s decision to unseal portions of Avila-Villa’s psychological evaluation. They believe the order would violate their client’s right not incriminate herself.
Both appeals would likely delay the trial. Nastoff was clear, if the appeal to the state supreme court is filed, he would loose jurisdiction to proceed further until the high court rules.
“As we stand right now we have a trial on Sept. 13,” Nastoff said. ”We have to see how it pans out, everybody is on notice (of a possible delay).”
During the two-hour hearing, much of which took place at the bench, the 27-year-old defendant whispered to her sister seated several rows behind her in the courtroom. The women appeared to be talking about Avila-Villa’s two children who are now in her sister’s care.
Assistant Prosecutor Jason Phillabaum said, “Our mission is to get justice for this baby. We don’t believe any appeal should delay this trial.”
He added the 12th district court made the right decision and the supreme court has already ruled on the issue in another case.
Cook said the defense is not trying to “sandbag” anyone. “We are try to assure we are preserving her rights,” she said.
Avila-Villa is facing the death penalty if convicted of killing 5-week-old Isreal Santos and throwing his plastic-wrapped body in a trash can last summer. She is charged with aggravated murder and several other felonies, including abusing the infant’s body and having sex with a teenager. Prosecutors say she killed her baby to escape punishment for having sex with an underage boy.
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