An attorney for accused double murderer Tyler Michael Miller argued that Montana’s death penalty statutes are unconstitutional Tuesday during a brief hearing in Flathead District Court.

Miller, formerly known as Cheetham, was arrested on Christmas Day 2010 hours after allegedly gunning down his ex-girlfriend Jaimi Hurlbert and her 15-year-old daughter, Alyssa Burkett.

Miller’s attorney Ed Sheehy reiterated his written arguments included in a June filing opposing the state’s practice of allowing judges rather than juries to issue capital sentences.

He also noted that Montana law dictates that there must be a presence of aggravating factors and an absence of mitigating factors for a court to pronounce the death penalty to a defendant.

“It is only when there are no such circumstances that the death penalty can be imposed and that is a decision that must be made by a jury and sadly not by the court alone,” Sheehy said.

One such mitigating factor potentially could be mental deficiency or disease, an avenue being explored by Miller’s defense.

Experts retained by Miller’s defense have concluded that Miller has long abused drugs and suffered from various mental disorders.

The Flathead County Attorney’s office is pursuing capital punishment in part because of the alleged premeditated nature of the murders, which is one of the possible aggravating factors the office has identified.

Sheehy said Montana law allows judges authority that is broader than what the constitution intended.

He said the issue already would have found its way to Montana Supreme Court had convicted murderer David Thomas Dawson not chosen to be executed in 1996.

“Under our statute — and I think this would be in direct violation of the 14th amendment — we could have in the 22 judicial districts of the state of Montana, 22 different judicial determinations as to how to weigh those mitigating circumstances and what the burden of proof is,” he said. “So, that’s another basis in our view for declaring this procedure unconstitutional.”

Deputy County Attorney Lori Adams did not provide verbal arguments, instead telling District Judge Stewart Stadler that the prosecution would rely on its legal briefs already filed with the court.

Stadler did not provide a timetable for when he might rule on Miller’s motion.

He said the timing of future rulings and hearings will be contingent on whether or not Miller is ruled competent to stand trial. Two mental health professionals from the Montana State Hospital recently were scheduled to evaluate him.

Reporter Eric Schwartz may be reached at 758-4441 or by email at eschwartz@dailyinterlake.com.