Paul Warner wants to get one thing straight: Convicted murderers do not (repeat, do not) walk willingly to the execution chamber.
"It may seem like the momentum is in our favor," said Warner, associate deputy Utah attorney general. "But that ain't the way it works. They may be moving toward execution, but they're digging in their heels, kicking and screaming all the way."There are exceptions. Child killer Arthur Gary Bishop, for example, recently decided he wanted to die for his crimes - and he'll apprently get his wish June 10.
But even those cases require a fair amount of work. And to do the job right, you need good, seasoned prosecutors down the stretch - the more the better. Especially now, when the state has nine active capital cases - at least three of which could end in execution this year - the need for competent legal counsel is critical.
It's all the more alarming, then, that the attorney general's "execution team" is in the midst of a changing of the guard.
After 10 years, Assistant Attorney General Earl F. Dorius, who probably knows as much about death penalty appeals as anyone in the country, has opted to take a lower profile - and less stressful - role as counsel to the alcoholic beverage control commission. He said the strain of capital cases finally caught up with him (he recently had surgery to remove his gall bladder and check for ulcers). So he's slowly bowing out, although he will of course still give advice.
Assistant Attorneys General David Schwendiman and David Thompson have also left the office for new career opportunities. Schwendiman was involved in the 1977 execution of Gary Gilmore and actively participated in fighting the last-ditch appeals prior to the execution of Hi Fi Shop killer Pierre Dale Selby last August. Thompson, too, worked on the Selby and Bishop appeals.
The heir apparent to Dorius is Sandra Sjogren, an assistant attorney general
who has worked a total of 5 1/2 years with the attorney general, two of them as a clerk before she graduated from law school. She will be joined by attorney Barbara Bearnson, a former Salt Lake County attorney, and Dan Larson, a recent law school graduate.
A formidable crew, certainly, but it must be remembered that the defense end of death penalty appeals can be positively awesome. Hi Fi Shop killer William Andrews, whose last regular appeal was recently rejected by the U.S. Supreme Court, has seven attorneys from two different law firms working on his case, some of whom do nothing but death penalty appeals. A New York University law professor has also helped write legal briefs for Andrews.
"You're looking at our experience," Warner said, gesturing to Sjogren. "And I'm not knocking her experience; she has great experience. But in terms of the rest of the state, i.e., the prosecutors or the legislators, suggesting we have all this expertise vested in our office, that's just not true. I've got one experienced lawyer and a couple of young lawyers coming on to help."
And it's not as though those attorneys do nothing but capital cases. They are part of the 2.5 full-time equivalents assigned to handle all criminal appeals, from DUIs to assaults to rapes.
And all of it must be flawless.
"If we lose just one of the 25 issues they throw at us, then we have to start over again," Dorius said. "We never stop. There's never a light at the end of the tunnel. We're always in a response mode and we have no control over the workload."
To make matters worse, the caseload is furious, so much so that Warner likens criminal appeals to the assembly-line surgery of TV's M*A*S*H.
"It's like `meatball surgery' on M*A*S*H," Warner said. "At least, that's what it should be like with us most of the time. That approach might work in some of the more routine, less-visible cases. But the problem is that right in the middle of all this meatball surgery, they bring in an extremely complex and critical case - a (Hi Fi Shop killer Pierre Dale) Selby or a Bishop or a (Ronald W.) Lafferty - that require extremely fine surgery. You can't just slap something together.
"If you're going to stop and take the time to perform that kind of complex surgery, then all the rest of the meatball surgery is going to stack up," Warner said. "So capital cases are putting a glitch in the operations."
Adding insult to injury is a pay scale Warner said is so low that talented attorneys are difficult to come by and even tougher to keep.
"We make offers to the Salt Lake County attorney's office and to small county attorney's offices in this state who are paying more than we are," Warner lamented.
Adds Dorius, "In order for us to achieve parity with the Salt Lake County attorney's office and the U.S. attorney, we should infuse into our budget $600,000 to match Salt Lake County and $800,000 to pull even with the U.S. attorney. During the last session, we asked the Legislature for $150,000 and we didn't get it."
All things considered, why would anyone want to do it? Sjogren said she likes that area of the law and feels she's performing an important service. But she's not promising how long she'll stay at it.
"I have no immediate plans to leave," she said. "But if it continues the way it is, I will be looking around."
With or without resources, experience or no, state prosecutors have their hands full, especially in the next few months.
Bishop, 38, convicted in the sex-related slayings of five young boys, is saying he wants to end appeals and die for his crimes. Third District Judge James Sawaya ruled Bishop was mentally competent to make that decision, and the Utah Supreme Court recently lifted his stay of execution. Bishop has been sentenced to die June 10.
Andrews, convicted of the April 22, 1974, torture slayings of three people in the Ogden Hi Fi Shop, has exhausted the traditional avenues of appeal, and he could be executed in the next two to three months.Comment on this story
Meanwhile, James Louis Holland, 47, who pleaded guilty to the July 1986 murder of a Florida man, also says he doesn't want further appeals of his death sentence. His attorneys are now following through with the mandatory appeal to the Utah Supreme Court. Assuming the court upholds the convictions and Holland maintains his death wish, he could be executed sometime before the year is out.
Other death penalty cases are far from conclusion, but they still require virtually constant maintenance by prosecutors to keep them on track.
Attorneys for religious zealot Lafferty, who claimed God told him to kill his brother's wife and their 15-month-old girl, have expressed interest in pursuing appeals, but Lafferty is noncommittal. He recently received a new execution date of June 24, however his attorneys anticipate further delays in order to test his mental comptency. The Utah Supreme Court also recently upheld the conviction of Elroy Tillman, 51, who was convicted of murdering with an ax and then setting aflame the body of his ex-girlfriend's boyfriend in 1983. He is also expected to begin his federal appeals.
Other killers include Ronnie Lee Gardner, who was sentenced to death after he gunned down attorney Mike Burdell during a failed escape attempt in April 1985 at the Metropolitan Hall of Justice; Douglas Carter, 32, sentenced to death in December 1985 for killing the elderly aunt of Provo City's police chief; Joseph Mitchell Parsons, 23, a Nevada State Prison parolee who pleaded guilty to the Aug. 31, 1987, murder of Richard Ernest, 30, Loma Linda, Calif.; and Ralph LeRoy Menzies, sentenced to die for the murder of a 25-year-old Kearns mother on February 1986.