“My grandson’s not breathing at all. I woke up and he’s not breathing … he is dead,” Batts said in the recording of the 911 call from that morning, which was played in court at a November motions hearing.

The dispatcher asked if Batts knew how to and had been performing CPR on Hurley — she said yes to both. The dispatcher then called Air Idaho, a helicopter ambulance, to respond to the scene and told Batts they were doing so.

“Air Idaho won’t do nothing,” Batts told the dispatcher. “He is dead. I’m telling you.”

Emergency medical responders attempted to revive Hurley, but failed. He was pronounced dead in the home.

Law enforcement, which had also responded to the scene, saw something suspicious about the way the boy had died. He had bruises and wounds all over his body, court documents say, and a gash on the back of his head when he was found unresponsive on the floor of the living room. A doctor performed an autopsy on Hurley — who usually went by Alex, not James — and determined in a preliminary report that he died from blunt force trauma to the back of the head.

Prosecutors filed charges against five people — four family members and one other person — for being involved in the 12-year-old's death.

Since then, four of those five people have pleaded guilty to beating or abusing Hurley or being directly involved in his murder.

Batts has not. She is the only person accused in Hurley’s death who appears headed for trial. In addition to deliberate homicide, the charges against Batts are aggravated kidnapping, criminal child endangerment and strangulation of a partner or family member.

Prosecutors Bjorn Boyer and Marty Lambert say that Batts is the one who taught her children to beat Hurley, including hitting him with a paddle and letting Sasser III physically discipline him when she wasn’t around, and that she’s legally responsible for his murder. They're asking District Court Judge John Brown to sentence her to death.

Craig Kevin Shannon and Gregory Jackson, defense attorneys for Batts, are arguing against the death penalty.  They say she did not intend for Hurley to die and that she didn't personally commit the strike that killed him. Because of that, they say, she’s ineligible for the death penalty — she’s a “non-triggerman.”

It will be up to Brown to decide if the death penalty can be considered in next summer’s 20-day trial of Batts, scheduled to begin May 31.

The death penalty

Since 1976, only three people have been executed in Montana, according to the Death Penalty Information Center. Two people are on death row.

The most recent person put to death in Montana was David Dawson in 2006. Dawson was convicted on several counts of murder, aggravated kidnapping and robbery for kidnapping a four-person family at a Billings hotel and killing three of them. He was sentenced to death in 1987 and executed by lethal injection in 2006.

Shannon and Jackson have filed a slew of motions related to warrants and searches that Brown will need to rule on, and both sides have filed a handful of procedural motions.

But on Oct. 28, 2021, Shannon and Jackson filed several more complicated motions about the death penalty. Those motions are asking the court to find that Batts is not eligible for the death penalty, hoping to avoid seeing her face the same fate Dawson did in 2006. They argue that prosecutors didn’t get the correct permission from the court to ask for capital punishment and that it’s not clear if Batts is eligible to be sentenced to death under state and federal law.

The defense team has also filed several motions calling into question the constitutionality of sections of Montana’s death sentence statute and a 453-page motion called “Death is Different.” The Gallatin County District Court Clerk’s office was unable to send the “Death is Different” motion to the Chronicle because of its size, and couldn’t print it at the office.

In one brief in support of a motion, Jackson and Shannon argue that the way Montana hands down capital punishment — having a judge decide, instead of a jury, if someone will be sentenced to death — in illegal under both the state and federal constitutions.

In Montana, a death sentence is decided by a judge, but for that to be on the table at all, a jury still needs to find the facts of a crime and aggravating circumstances.

In another, the defense team argues that the Montana death penalty statute allows someone who did not commit a crime proportionate to death to be sentenced to death. In other words, they say that death would be a disproportionate punishment for Batts.

Yet another motion says that Montana’s capital sentencing scheme doesn’t provide a “rational and meaningful basis” to determine which defendants can be put to death.

Responses to the motions from prosecutors are due on Jan. 28. Boyer and Lambert said that they believe the motions lack merit and will file responses by the above deadline, but declined to comment further on the motions or their potential responses.

Shannon said he and Jackson believe the motions have precedent in the U.S. Supreme Court, but declined to comment further on the motions.

The merit

The defense team’s motions bring some complicated arguments, said Jordan Gross, who teaches criminal law and sentencing at the University of Montana’s Alexander Blewett III School of Law.

The state doesn’t use its capital punishment statute regularly, so it doesn’t have the need to review it often.

“We make such infrequent use of the death penalty in Montana. We don't litigate these often, unlike states that have a lot of death penalty cases — I’m thinking Florida, Georgia, Texas,” said Gross.

Gross said there are three ways a person can be held legally responsible for the death of another. The first is to kill someone — be the “triggerman.” The second is to facilitate a murder, to pay or incentivize someone to kill. The third, and the most pertinent to the defense’s motions as Gross understood them, is the felony murder rule.

“The felony murder rule says that if in the course of participating or engaging in a particularly dangerous felony, a death results, then you are responsible for the death,” Gross said. Some consider the felony murder rule controversial, she said, though it still exists.

The defense isn’t arguing that Batts can't be punished for a crime if she pleads guilty or is found guilty by a jury — the question, as Gross interpreted it, is whether she can be put to death for it.

Capital trials are complicated. Defendants facing the death penalty get an enhanced right to counsel — both Shannon and Jackson had to prove to the court that they were competent lawyers able to defend against the death penalty. Prosecutors have an increased need to show aggravating factors, or that the crime was particularly severe.

“It’s not enough to engage in a crime that results in the death of a human being” to be sentenced to death, Gross said. “Basically, it's homicide plus something that makes it particularly egregious and proportionate to put a person to death.”

At the enhanced sentencing hearing that’s part of a capital trial if a defendant is convicted, the defense gets an opportunity to show mitigating factors in a bid to avoid a death sentence. The defense can try to show, for example, that the defendant has an ability to reform, or they didn’t have the mental capacity to understand they were committing a crime that would kill another person.

Shannon and Jackson filed a notice of affirmative defense on Oct. 28 that indicates they may argue that Batts, at the time of the crime, had a mental disease or disorder that makes her unable to be put to death for the crimes if convicted.

Another key point the defense brought up in a motion, Gross said, is that the death penalty is well known to attorneys to be a strong negotiating tool in plea negotiations. The difference between a death sentence and life in prison can make all the difference in some cases.

“It’s not unknown among defense attorneys and prosecutors that (the death penalty) can be a powerful motivator to plead guilty because if you can take that off the table, it’s just whole different stakes,” she said. “It changes all the dynamics around the case, whether the death penalty is on the table or not.”