YOUNGSTOWN, Ohio (WKBN) — The attorneys representing one of the two men in custody on charges that they murdered a 4-year-old Struthers boy have filed a motion asking that either the indictment in the case or the death penalty specifications be dropped.

The motion was filed Wednesday in Mahoning County Common Pleas Court by Lynn Maro and John Juhasz on behalf of Kimonie Bryant, 25, who could face the death penalty if convicted of the September 2020 shooting death of Rowan Sweeney, 4, in his mother’s Perry Street home.

In the motion, the attorneys say the death penalty in Ohio is unconstitutional because it violates the Eighth Amendment to be free from cruel or unusual punishment.

Attorneys argued the motion Wednesday before Judge Anthony D’Apolito. Judge D’Apolito is expected to rule on the motion at a later date.

The motion said that since 2015, Ohio has lacked a shortage of the drugs used in lethal injections to put defendants to death and that several times since then, executions have had to be postponed.

The motion said recently Gov. Mike Dewine postponed four executions because of a shortage of the drugs.

The lawyers said that violates Bryant’s Eighth Amendment rights because he can never be sure of when he would be put to death if jurors find him guilty and eligible for the death penalty. Because of the anxiety of having execution dates postponed, that would constitute cruel and unusual punishment.

Also in custody on charges that he murdered Sweeney is Brandon Crump, 18.

Bryant and Crump were indicted on capital specifications for the boy’s death, which means the death penalty can be applied if they are found guilty. However, because Crump was a juvenile at the time the crime was committed, under state law, he cannot be put to death.

Bryant was originally indicted in October 2020 for Sweeney’s death that was part of a superseding indictment in March 2021 that included Crump as well as Andre McCoy, 21.

McCoy was wounded in the same shooting that killed Sweeney and injured two others. Prosecutors have not been able to find him and they have not said how McCoy could have been shot in the head yet still part of the plot that resulted in Sweeney’s death. McCoy could also face the death penalty if he is convicted.

Three others were also charged in the superseding indictment with other roles in the case.

Police and prosecutors said Sweeney was killed by a group of men who came to the Perry Street home of his mother to rob her boyfriend of several thousand dollars he received from a stimulus check.

A trial date has still not been set for either Crump or Bryant. Prosecutors are awaiting the results of DNA testing which is being done this month to determine who should be tried first.