On Friday, prosecutors filed a motion with the Ohio Supreme Court to compel Nastoff to begin the trial as planned.
The rare legal move came after defense attorneys Melynda Cook and Chris Pagan told Nastoff they planned to file an appeal to the state’s highest court this week.
Nastoff indicated if that occurred, he would no longer have jurisdiction and the trial would likely be postponed.
The prosecution team’s complaint with the state supreme court stated Nastoff is incorrect in his determination that he no longer has jurisdiction and the trial should proceed as scheduled. They asked the supreme court to expedite its decision because the trial date was looming.
On Thursday, the supreme court denied the motion to expedite the decision, meaning Nastoff, and Pagan who is also named in the complaint, will have 21 days to respond before any decision is handed down.
In his entry Nastoff stated, “It has come to the court’s attention that the (prosecution) on Sept. 3, 2010 filed an original complaint in procedendo in this manner in the Supreme Court of Ohio. The matter remains pending. As a result of this development, this court, in its sound discretion, vacates the trial currently scheduled to commence on Sept. 13, 2010.”
Nastoff said he would reschedule the trial after the supreme has ruled. A status hearing has been scheduled for 11 a.m. Sept. 23.
Butler County Prosecutor Robin Piper said, “We were hoping the supreme court might have an expedited procedure for ruling on the writ, but it is apparent that we will not have a ruling prior to the scheduled trial date, so although we are disappointed we understand the trial would not be able to proceed.
Cook said Thursday, they will still file an appeal of a decision handed down by the 12th District Court of Appeals, but because the trial is off for Monday, they will not have to drive it to Columbus today to had deliver the documents.
“We have it finished,” Cook said. “But we will probably mail it now.”
Pagan and Cook are challenging 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 Nastoff to allow a jury to consider sentencing, but that motion was denied, causing Pagan and Cook to file an appeal to the 12th District Court of Appeals. 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.
The defense team 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.
A second appeal has also been filed to the 12th District Court of Appeals 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.
Avila-Villa, 27, is facing the death penalty if convicted of killing 5-week-old Isreal Santos, wrapping his body in plastic and throwing him 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.
Contact this reporter at (513) 820-2168 or lpack@coxohio.com
Contact this reporter at (513) 820-2168 or lpack@coxohio.com.
About the Author
