The judge says she expects to rule within 90 days.

HOLIDAYSBURG, Pa. (AP) — Defense attorneys are asking a Pennsylvania judge to bar prosecutors from seeking the death penalty against a man charged in the 2018 smothering death of a 16-month-old child, citing a psychiatrist’s conclusion that he was only 19 and had the brain development of a juvenile.

Drue Burd, now 22, of Altoona was in Blair County Court on Tuesday as attorneys argued the motion by the public defender’s office, The (Altoona) Mirror reported.

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Burd was charged with criminal homicide, aggravated assault, strangulation and related charges in the May 2018 death of 16-month-old Angela Beard. Prosecutors alleged that he told investigators he put his hand over the child’s mouth and nose to make her fall asleep.

A defense psychiatrist said a 2005 U.S. Supreme Court decision barring the death penalty for juveniles was based on factors such as uneven brain development making juveniles impulsive and less likely to assess risk. Newer research indicates that the same kind of traits apply to those between 18 and 21 years old, she said.

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Assistant District Attorney Derek Elensky said decisions by the state and U.S. high courts still support the death penalty as an option for a 19-year-old defendant.

Prosecutors earlier argued that the death penalty would be warranted if Burd is convicted of first-degree murder because of the victim’s age and the presence of another felony charge. Elensky said Tuesday that in the event of a first-degree conviction, the defense can argue for a life term without the possibility of parole rather than execution.

The judge says she expects to rule within 90 days, and Burd’s case will likely be slated for trial early next year.

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