MIDDLETOWN — The are still many questions surrounding the punishment for the Middletown mother charged with the murder of James Hutchinson. While it is unknown currently how many years she could face if found guilty, one potential punishment is off the table: the death penalty.
Brittney Gosney, 29, was indicted on 16 felony charges including murder, involuntary manslaughter, tampering with evidence, child endangering, kidnapping and gross abuse of a corpse following the murder of her 6-year-old son on Feb. 27.
>> Trial dates set for mother, boyfriend charged in James Hutchinson’s death
News Center 7′s John Bedell spoke with Tom Hagel, a criminal law expert and law emeritus professor at the University of Dayton School of Law, about why the death penalty is off the table for Hutchinson’s case.
Hagel explained that for a case to be eligible for the death penalty in Ohio, the defendant must be charged with aggravated murder.
“To charge and convict somebody with aggravated murder, you have to prove that the killing was purposeful; meaning that the person had specific intent to kill the person,” Hagel said. “Plus, there has to be the presence of what’s considered an aggravating circumstance.”
There are 10 different aggravating circumstances under Ohio law. Hagel said one of the 10 circumstances must have been listed in the indictment.
“And it has to be proven with the killing of course, but the aggravated circumstance has to be proven beyond a reasonable doubt,” Hagel said.
An example of an aggravated circumstance is if the murder happens during the commission of another felony. Butler County Prosecutor Mike Gmoser explained to the Hamilton Journal-News why the case would not be eligible under this circumstance.
“Maybe she thought the wolves would get them (when Gosney abandoned the children in Rush Run Wild Life Area in Preble County), but her conduct in the death of this boy was reckless when she hit him with the car, which is a felony,” Gmoser said.
Hagel’s took Gmoser’s explanation and said he was saying “killing or causing the death of if you will, of this child, was not purposeful.” Without the purpose to kill, Gosney cannot be indicted on aggravated murder.
“It may be reckless, it may be negligent, what have you, but it’s not a purposeful killing,” Hagel said.