McVay Fights Death Penalty Option

James McVay is trying to avoid the death penalty.  You may remember McVay admitted to killing a Sioux Falls woman on what he said was a plot to kill President Obama. McVay's hearing is set for later this month.

Paperwork filed by the attorney for McVay says the admitted killer should not face the death penalty.  In fact, the papers lay out why those lawyers believe it is not allowed under South Dakota law.

McVay pleaded guilty but mentally ill to first degree murder last December.  The "mentally ill" portion of the plea is the focus of the motion.  McVay's attorneys claim South Dakota law doesn't allow the death penalty for such a plea.  Instead, they say death is only a possible sentence for those found guilty of first degree murder by a jury, or for someone who voluntarily pleads guilty to first degree murder.

Following the July 2011 murder of 75-year-old Maybelle Schein in Sioux Falls, McVay was arrested in Wisconsin.  There, he told a local television reporter he had no remorse for killing Schein, calling it collateral damage.  He went on to say he'd do it again and again.  McVay's lawyers have also filed a motion barring prosecutors from using that interview if there is a sentencing hearing.

The judge in the case is yet to rule on either motion.  Prosecutors have not yet responded.

The Minnehaha County Public Defender's Office is representing McVay in this case.