CONSTITUTIONALITY AT ISSUE IN 2ND DEATH PENALTY

Published: Thursday, Feb. 9 1995 12:00 a.m. MST

Can a man die twice?

The question seems silly, but prosecutors are seeking a second death penalty conviction against Ronnie Lee Gardner, one of Utah's most notorious death-row inmates.The state's charge is not driven by a seemingly absurd end, however.

At issue is the constitutionality of a 1974 law that allows authorities to seek a death sentence for a first-degree felony prisoner who assaults another inmate or jail officer but doesn't kill him or her.

Gardner was charged with that offense after allegedly stabbing an inmate with a hand-crafted shank Sept. 25 as the two were let out of their cells for a recreation break.

Defense attorney Ron Yengich fired the first shot at the law Wednesday as Gardner arrived in 3rd Circuit Court for a preliminary hearing on the charge.

"The statute is vague . . . and encourages arbitrary and discriminatory enforcement," he said in a motion filed with Judge Roger Livingston.

Yengich also asked the judge to dismiss the charge on the grounds that it is unconstitutional in that it violates the Eighth Amendment's prohibition against cruel and unusual punishment for a crime. Livingston will wait for a response from prosecutors before ruling on the defense motion.

Meantime, the preliminary hearing was expected to continue Thursday. It will determine whether probable cause exists for a trial.

The judge heard testimony in the first day from corrections officers who said Gardner, intoxicated from home brew mixed in his cell sink, made several stabbing motions at inmate Richard "Fats" Thomas.

Investigator Victor Nitzel testified inmates yelled to Gardner after a SWAT team evacuated Thomas from the cell area, asking him, "How good did you get Fats?"

Nitzel, whom inmates apparently did not know was in earshot, testified he heard Gardner reply, Thomas " . . . is so fat I think I was just stabbing fat. . . . I was stabbing all the way up to the hilt, but I don't think I got through the fat."

Thomas is described as being 6 feet tall and weighing 250 pounds. He suffered at least nine puncture wounds to his face, mouth, left arm and chest and probably suffered a punctured lung, according to testimony. Investigators recovered a 5-inch-long sharpened shank wrapped in tape they believe was the weapon.

Prison doctor Robert Jones said the injuries were life-threatening though Thomas has fully recovered.

This week's hearing is also the first meaningful testing ground for a 1994 law that allows hearsay evidence into preliminary proceedings.

Yengich and District Attorney Neal Gunnarson argued over the testimony of another prison investigator, Jenny Glover, who was about to tell the judge the details of a conversation she had with Thomas after the stabbing. Under old law, such testimony would not be allowed because it is secondhand, not under oath and unrecorded.

Yengich objected, arguing the new state law doesn't allow the accused to directly confront his accuser. Later, after the court hearing, the lawyer said legislators had been "sold a bill of goods" when they made the bill law.

"Everybody should be concerned about this because it can be used against individuals to falsely accuse them, to make spurious allegations," Yengich said. "The rights we're talking about are the people's rights, and everybody when accused will want to exercise them."

The judge overruled Yengich's objection, saying he was bound to follow the law.

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