Olathe ? Johnson County prosecutors said they won’t seek the death penalty against a man accused of killing a suburban Kansas City woman at the community swimming pool where she worked.

Though he called it “incredibly heinous,” Dist. Atty. Paul Morrison said Wednesday that the killing of 19-year-old Ali Kemp did not meet the legal criteria for the death penalty.

Benjamin Appleby, 30, was arrested under a different name last November in Bantam, Conn. The former pool cleaner pleaded not guilty last month to charges of first-degree capital murder and attempted rape in the June 2002 killing of the Kansas State University student.

Her battered body was discovered in a pump room by her father, Roger Kemp, who waged a national publicity campaign to help find her killer.

“I feel like I really let her down,” Kemp said, adding he felt the legal system gives too much protection to murderers.

To seek the death penalty in Kansas, Morrison said, a killing must fit two sets of criteria. Because the killing occurred in the course of an attempted rape, prosecutors were able to charge Appleby with capital murder.

The death penalty is a possible punishment for the charge, but only if there are aggravating factors. Such factors include a murder that is particularly heinous, atrocious or cruel or one committed for financial gain.

Morrison said all homicides are cruel to some extent, but appellate courts have interpreted the standard to apply to killings in which a victim is tortured or kidnapped or mutilated or made aware in advance that he or she would be killed.

“As horrible as this (Kemp) case is, it probably comes up a little short” in that regard, he said.

If Appleby is found guilty, Morrison said, he intends to push for a sentence of life in prison with no possibility of parole for at least 50 years.

Sarah Swain, an attorney with the firm representing Appleby, said Thursday that defense lawyers were happy with Morrison’s decision not to pursue the death penalty but that she did not believe Appleby could get a fair trial in Johnson County.

“He has already been tried and convicted by the media,” Swain said.

Johnson County District Court Judge Steve Leben has tentatively set a July 10 trial date.