They are also arguing Selvaggio made a mistake when he sought information about the drug Vyvanse on the internet. Serna was allegedly using Vyvanse shortly before the shooting, according to court testimony.
The attorneys say the judge went outside the record and relied on promotional content from the drugs website to make his ruling. The state argued in its reply that Selvaggio as the right to seek out information on his own.
Serna’s attorneys argue the information obtained by Selvaggio was unreliable.
“The state points to cases in which courts have cited official government sources such as the Centers for Disease Control, judicial dockets and opinions, a publication of the American Medical Association, a medical dictionary and the physician desk reference,” the most recent court document says. “In none of the cases cited by the state did the trial court rely on promotional material in which the manufacturer expressly disclaimed the reliability of the information. The different level of authority is critical because, as Ely’s main brief explained, drug company promotional materials are especially unreliable.”
The attorneys have previously said they expect Ely to serve a prison sentence in connection to the school shooting, but are arguing that the maximum sentence is too long.
The state is continuing to argue that Serna’s crimes are serious and deserving of the maximum sentence.
“With regard to more serious factors, the trial court found that the victims closest to the shooting incident include 398 middle school and high school-aged children, 168 of whom felt compelled to break and exit through classroom windows to nearby parking lots, ball fields, and muddy farm fields to escape harm’s way,” the response says. “In a separately attached wing of the school, elementary-aged children were hiding in classrooms behind barricaded doors arming themselves with staplers, scissors, and sharpened pencils while shielding their vital organs with heavy books.”