“As a result, imposing the death penalty upon the defendant would violate the eighth amendment prohibition against cruel and unusual punishment,” a motion filed by the defense says.
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A hearing is set to begin Sept. 30 to argue the motion. It could last two days, according to court records. As a result, a jury trial was rescheduled for January 2020.
The legal case has moved slowly through the judicial system. Pilkington was first charged with aggravated murder in 2015. She is accused of smothering infant Niall in July 2014, 4-year-old Gavin in April 2015 and infant Noah on Aug. 18, 2015.
She has pleaded not guilty to the charges.
Pilkington’s attorneys and the Logan County Prosecutor’s Office have been in legal battles surrounding the evidence of the case. Numerous appeals and motions have been filed causing the jury trial to be rescheduled many times.
The most recent motion filed in June points to the 2002 Supreme Court case Atkins vs. Virginia as an argument that Pilkington shouldn’t face the death penalty if convicted. In the case, the highest court in the land ruled that it is cruel and unusual to execute intellectually disabled defendants.
The motion says Pilkington has an IQ of 71. This places her well within the range of scores necessary to be considered as intellectually disabled, the motion says. The score is supported by a review of children services records, school records, pediatric records, and other interviews and affidavits, according to the motion.
“All of this leads to one conclusion Brittany Pilkington is intellectually disabled such that the death penalty is not appropriate in this case,” the motion says.
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The state has requested an independent evaluation of Pilkington.
This isn’t the first time Pilkington’s attorneys have called the court’s attention to their clients intellectual capabilities. Two years ago, her lawyers asked the court to throw out a recorded confession by Pilkington based on medical testimony that she suffers from brain damage.
The motion highlights a larger debate taking place in America about intellectual disabilities and the criminal justice system. Earlier this month, defense attorneys were able to convince a federal judge using Atkins vs. Virginia to vacate the death sentence imposed against Bruce Webster in 1996.
Meanwhile, earlier this year Governor Mike DeWine halted all executions in the state until the Ohio Department of Rehabilitation and Correction develops a new execution protocol that gains approval from federal courts.