CINCINNATI (AP) -- A prosecutor's employee improperly interrogated an Ohio woman without a lawyer present after she was accused of suffocating her three sons out of jealousy at the attention her husband paid them, according to a motion to remove the prosecutor's office from the case.
The judge has set a Jan. 22 hearing on the motion in the case of Brittany Pilkington - a motion that legal experts consider unusual in a case marked by unusual circumstances.
Pilkington is set for trial in March on aggravated murder charges and could receive the death penalty if convicted. The Bellefontaine woman, 23, has pleaded not guilty.
Her husband, 44-year-old Joseph Pilkington, has pleaded not guilty to sexually assaulting her when she was a teenager after authorities say he lived in her house for years as a stepfather figure. Authorities say he isn't a suspect in the children's deaths.
The motion asks the court to disqualify the Logan County Prosecutor's Office ensure fairness or the "appearance of fairness," saying Pilkington was interrogated while in custody and without her attorney's knowledge.
The motion alleges the interview violated Pilkington's constitutional right to have counsel present at all "critical stages of the criminal proceedings" and provided additional information to use in her prosecution. It also says the employee could be called as a prosecution witness, creating a conflict of interest.
County Prosecutor William Goslee said the interview had nothing to do with the woman's case, but involved the assault case against her husband.
"The conversation was about her status as a crime victim, and not about her sons' deaths," Goslee said Thursday.
Goslee also said he has never been briefed on what was said in that interview and nothing from it has been used or would be used at trial.
Ric Simmons, an Ohio State University criminal law professor, said he sees nothing illegal in interviewing the wife to build a different case against her husband, though interviewing a defendant without an attorney also is unusual and "better practice" might have been to have her lawyer present.
"I have never heard of a motion like this outside of a vindictive prosecution claim," said Simmons, who doesn't think it's likely to succeed.
The numerous motions include more common ones such as moving the trial outside the county, but a motion to disqualify the prosecutor's office doesn't occur very often and is "pretty significant," said Michael Benza, a senior law instructor at Case Western Reserve University.
"Because if it's granted, it puts the prosecution back to square one," Benza said. "Any new prosecutor would have to catch up on the case."
The Associated Press generally doesn't identify possible victims of sexual assault, but Pilkington's name and image have been widely published.