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Defense seeks to bar death penalty

Burd accused of smothering infant

HOLLIDAYSBURG — An Altoona man accused of smothering a 16-month-old child in May 2018 shouldn’t be facing the death penalty because at the time of the offense, he was only 19 years old and had the brain development of a juvenile, a Philadelphia area psychiatrist has concluded.

Drue S. Burd, now 22 and a Blair County Prison inmate awaiting trial for the murder of his girlfriend’s child, was in court Tuesday where attorneys offered arguments before President Judge Elizabeth Doyle on a motion to bar the death penalty.

Chief Public Defender Russ Montgomery, representing Burd, presented video testimony by Dr. Susan Rushing of Haverford, who spoke of the scientific research into the brain development of those between 18 and 21 years old.

She referenced the 2005 U.S. Supreme Court Roper v. Simmons ruling barring consideration of the death penalty for juveniles. It was based on factors, she said, that included uneven brain development, making juveniles prone to impulsive behavior and less likely to assess risk.

Since 2005, Rushing said additional research has shown the same kind of behavioral traits attributed to those under 18 are applicable to those between 18 and 21 years old.

“This information,” Rushing said of the additional research, “wasn’t known at the time of the Roper ruling.”

Assistant District Attorney Derek Elensky told President Judge Elizabeth Doyle that he’s willing to recognize that Burd was 19 years old at the time of the offense, a factor that he expects will surface in his defense when his case goes to trial.

The defense’s argument to preclude the death penalty based on brain development is premature, Elensky said.

Decisions rendered by the U.S. Supreme Court and the state Supreme Court still support the death penalty as an option for a 19-year-old Pennsylvania defendant, Elensky said.

Montgomery encouraged Doyle to review the Roper ruling, which evaluated many of the same arguments that he was offering on Burd’s behalf.

Elensky countered that Burd’s defense will have the chance to offer age-

related arguments during trial. The defense can use his age, Elensky said, to argue that Burd couldn’t form an intent to kill.

If the case reaches a point where a jury convicts Burd of first-degree murder, Elensky said the defense will be in a position to argue that because of Burd’s age, his sentence should be life in prison instead of the death penalty.

Doyle asked Elensky to provide a written brief, within 30 days, to address Mongtomery’s latest legal brief.

The judge said she would expect to issue a written opinion within 90 days. While Burd’s case was under consideration for the December trial term, it’s likely going to be scheduled for early 2022, the judge said.

Mirror Staff Writer Kay Stephens is at 814-946-7456.

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