KANSAS CITY - Attorneys for a man accused of killing a 3-year-old girl once known only as "Precious Doe" are seeking to have the first-degree murder charge dismissed.
The lawyers for Harrell Johnson, 29, of Muskogee, Okla., said there is no case law to support a first-degree murder charge by omission.
"It's simply not legally a case where deliberation can be proved," defense attorney Chris Slusher said Friday during a hearing in Jackson County Circuit Court.
Prosecutors have said they plan to argue for the charge in the death of Erica Green based on Johnson's alleged decision to not seek medical care for the child, whose mother he later married. They allege Johnson kicked the girl in the head when she wouldn't go to bed, left her to die, decapitated her and dumped her remains. The child's body, and later her head, were found in 2001 in a wooded area of Kansas City.
She was dubbed "Precious Doe," and community activists kept attention on her case. The girl was identified in May 2005.
Judge John Torrence listened to arguments during Friday's hearing, but he is not expected to rule on the defense's motion to dismiss the first-degree murder charge until he hears evidence at trial next month.
Jury selection will begin Oct. 1, and evidence in the case will be presented starting Oct. 6. Besides the first-degree murder charge, Johnson also faces charges of endangering the welfare of a child, abuse of a child resulting in death and abuse of a child.
Assistant Jackson County prosecutor Dan Miller told The Associated Press that the state will show that there was deliberation on Johnson's part "to deny the child medical care and just watch her die."
He said prosecutors decided on the first-degree murder charge because of statements that Johnson made.
"Based on his actions and his stated reason for those actions, we believe it's murder in the first degree," Miller said.
The defense also is trying to persuade the judge to keep prosecutors from using statements that Johnson made during a police-arranged meeting between him and Erica's mother, Michelle Johnson, while the couple was in custody in Oklahoma. The Johnsons married a year after Erica died.
The Johnsons were arrested in Muskogee in May 2005 after police received a tip from a family member linking them to the slain girl.
Michelle Johnson pleaded guilty to second-degree murder last September and has agreed to testify against her husband in her daughter's death.
If Harrell Johnson is convicted of first-degree murder, the only possible sentence is life in prison without parole. Prosecutors announced last month that they won't seek the death penalty.