Two men charged with the murder and robbery of University of Kentucky student Jonathan Krueger want to avoid the death penalty by arguing that their young brains weren’t fully developed during the April 2015 shooting on East Maxwell Street near campus.
Attorneys for Efrain Diaz and Justin Delone Smith told Fayette Circuit Judge Ernesto Scorsone on Friday that they want hearings with experts to determine the mental development of their clients two years ago, when Krueger was shot. At the time, Diaz was 20 and Smith was 18.
In 2005, the U.S. Supreme Court ruled in Roper v. Simmons that defendants cannot be executed for crimes they committed when they were younger than 18. A third defendant charged with Krueger’s murder, Roman Gonzalez, who was 17 at the time, already is protected by Roper and faces a maximum penalty of life imprisonment.
But “emerging new science” suggests that human brains continue to develop through at least age 21, which would mean that defendants like Diaz and Smith should not face death if convicted of capital offenses any more than Gonzalez should, their attorneys told Scorsone. They said they will present expert testimony specific to their clients at a Roper hearing, which Scorsone scheduled for July 7.
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Prosecutors have said they consider the death penalty an option for Diaz and Smith.
All three defendants have been held in the Fayette County jail since their arrests shortly after Krueger’s shooting.
Scorsone already has been asked to make a similar decision in another murder case. The defense team for Travis Michael Bredhold wants Scorsone to exclude the death penalty for their client, who is charged with the 2013 murder and robbery of Lexington gas station attendant Mukeshbhai Patel. Bredhold was “only five months and 13 days older than the limitation” established by Roper, his attorneys told Scorsone.
Krueger, 22, was a UK junior from Perrysburg, Ohio, and was photo editor for the campus newspaper. Lexington police say Krueger was walking home with a friend on East Maxwell Street about 2 a.m. when the defendants, all armed, confronted them in a robbery attempt. Diaz and Smith later told police they think it was Gonzalez who shot Krueger. Krueger’s friend escaped.