Keith Lambing

Attempting to take first-degree homicide off the table — and with it the death penalty — attorneys for a Butler man charged with homicide in connection with the death of a 4-year-old child made arguments in Butler County Court on Monday.

Judge Timothy McCune heard arguments from attorneys for Keith Jordan Lambing, 20, who was charged with first-degree homicide, involuntary deviate sexual intercourse with serious bodily injury, rape of a child, rape of a child with serious bodily injury and other charges in connection with the death of 4-year-old Bentley Thomas Miller on March 21 at the Super 8 motel on Route 8 in Butler Township, as well as an attempted escape charge from an incident on March 28.

Chief Public Defender Kevin Flaherty, in a petition for Writ of Habeas Corpus, argued that at the time of the preliminary hearing on April 27, the Commonwealth presented no testimony supporting the element of specific intent in regards to the homicide charge, making a charge of first-degree homicide inappropriate.

The Butler County District Attorney's Office filed a Notice of Aggravating Circumstances on April 28, seeking the death penalty against Lambing. First-degree homicide is the only charge that can carry the death penalty.

Flaherty argued that previous testimony showed no evidence of “willful, deliberate and premeditated” intent regarding the injuries suffered by Bentley.

In the filing, he wrote that “absence of evidence regarding the defendant's state of mind and intent is fatal to the charge of first-degree murder.”

At the preliminary hearing, testimony was offered by Butler Township Detective Thomas Vensel, who through his investigation determined that Bentley was in Lambing's care at the time the injuries occurred, and Dr. Todd Luckasevic of the Allegheny County Medical Examiner's Office, who testified that Bentley's death was a result of severe internal and external bleeding caused by external and internal injuries.

Flaherty argued that evidence was also presented that the injuries could have occurred up to 72 hours prior, and that no evidence was presented that Lambing had caused the injuries.

“We would submit that the evidence does support charges of second- or third-degree murder, but not first,” he said. “First-degree is a whole different thing. Rape only satisfies felony murder, not first-degree.”

Flaherty accused the District Attorney's Office of a “rush to judgment” to file for the death penalty due to news media and community attention.

Assistant District Attorney Terri Schultz argued that the injuries suffered by Bentley, including seven bruises to the head, a second-degree burn to the hand, hand marks on his lower abdomen and bruising to his lower back was evidence that “whatever happened at the hands of the defendant was enough for intent.”

Public Defender Joseph Smith, who is representing Lambing on the escape case, argued that the Commonwealth “has failed to show any evidence that the defendant had the 'firm intent to commit the crime of escape,'” in the petition for Writ of Habeas Corpus in that case.

“During the preliminary hearing, the Commonwealth had not shown intent that Mr. Lambing had committed or attempted to commit the crime of escape,” he said Monday.

In that case, Lambing is accused of attempting to escape by writing a note he intended to show to his grandmother, stating “On a court date they don't lock the pattywagon door” and “get a crew to open and snip cuffs,” according to court documents.

The note was found during a search of his cell before her visit.

Smith argued that the charge is just “piling on” by the Commonwealth, and was a “flight of fancy” by Lambing.

“Just because you write something in your cell doesn't mean that is an escape attempt,” he said.

He said that there was “a lot of assumptions here” as the note never left Lambing's cell, and if authorities would have waited and watched the visit with his grandmother, and he had shown her the note, then that would have represented a substantial step.

“There were multiple things written on this note, none of which was a substantial step toward committing the crime of escape,” he said.

At the preliminary hearing, corrections officer Jeffrey Kengerski testified that he overheard Lambing's phone call describing the note, and alerted administrators.

Lambing's cell was later searched and the note was found on his person, police said.

Schultz argued with the “totality of circumstance:” the forethought, writing the note, telling his grandmother about it and planning the visit were all substantial steps toward the attempted escape.

McCune issued an order giving the Commonwealth 30 days to file a brief in support of its arguments, and then 30 days after that filing for a response from the defense.