The trial for the alleged murderers of the former Kernel photo editor is delayed while a decision is made about the constitutionality of the death penalty for those under 21.

Efrain Diaz, Justin Smith and Roman Gonzalez allegedly killed Jonathan Krueger in April of 2015.

Gonzalez was 17 at the time of the crime and was automatically ineligible for the death penalty, but the other two men were over 18.

In September, however, Judge Ernesto Scorsone took the death penalty off the table for Diaz and Smith as well, said prosecutor Andrea Mattingly Williams.

Scorsone made the decision related to the case of Travis Bredhold, who is now 21 but was just over 18 when he was charged with murder and robbery, according to the Herald-Leader.

Fayette County Commonwealth’s Attorney Lou Anna Red Corn, who is the prosecutor in the Krueger trial along with Williams, made a statement after the judge’s decision in August. She said she will appeal Scorsone’s order “because it is contrary to the laws of Kentucky and the laws of the United States,” the Herald-Leader reported.

Williams said the prosecutor’s office has appealed that decision to the Court of Appeals, with the help of the office of Kentucky Attorney General Andy Beshear.

“To the best of our knowledge, this is the first time a circuit judge has ruled that the death penalty statute is unconstitutional as it applies to defendants who are less than 21 years of age,” said Terry Sebastian, head of the attorney general’s Office of Communications. “As such, the ruling warrants a review by an appellate court.”

The prosecutor’s office has made a motion to transfer the decision of constitutionality to the Kentucky Supreme Court, Williams said.

The death penalty was reinstated in Kentucky in 1975, according to the Death Penalty Information Center. In 2005, the United States Supreme Court decided in Roper v. Simmons that the execution of offenders under the age of 18 at the time of the crime was unconstitutional because of the Eighth and Fourteenth Amendments.

Williams said the prosecutor’s office does not know how long the appeals process might take. In the meantime, she said, those involved in the trial will try to make what progress they can while they wait for this decision.

Mary Krueger, mother of the victim, declined to comment about the specifics of the trial but said she hopes to someday see the trial go forward.