Kansas City, Mo. Prosecutors waited too long to seek the death penalty against the man accused of killing the little girl known for years only as Precious Doe, a public defender said during a hearing, and should be prohibited from doing so now.
Prosecutors countered the option is theirs at any time, and defense attorneys can always ask for a continuance.
Harrell L. Johnson, 26, of Muskogee, Okla., is charged with first-degree murder in the 2001 death of his stepdaughter, 3-year-old Erica Green. His wife, Michelle Johnson, 30, is charged with second-degree murder.
Jackson County prosecutor Mike Sanders announced in December that he planned to seek the death penalty against Harrell Johnson.
In Friday's hearing, Johnson's public defender, Bill Raymond, repeated the defense's point that another judge - who has since recused himself from the case - set repeated deadlines, the last one in October, for prosecutors to decide whether to pursue the death penalty.
"You can't allow this constant flip-flopping," Raymond told Circuit Judge J.D. Williamson Jr.
The prosecution's actions hurt Johnson's defense, Raymond said, and caused him unnecessary mental anguish.
Assistant Prosecutor Tim Dollar, however, said the previous judge's deadlines were procedural points and did not carry the force of court orders.
Williamson said he would rule on the defense motion by Feb. 15.
The girl's decapitated body was found in April 2001 in a southeast Kansas City park. A searcher found her head several days later.
It was not until May 2005 that Erica was identified and the Johnsons were arrested and charged.
Prosecutors allege Harrell Johnson kicked Erica until she was unconscious, then left her untreated as she lay dying for hours. Michelle Johnson is accused of failing to get help for Erica after she was injured.
Circuit Judge Charles Atwell recused himself from Harrell Johnson's case, without explanation, in December. Raymond had sought to have Atwell testify about the pretrial conferences that took place before he stepped down, but prosecutors opposed that.