Death-row inmate seeks federal appeal

Death-row inmate Ronnie Lee Gardner is asking the Utah Supreme Court to allow him to proceed in his appeal to a federal court of his capital murder conviction.

In oral arguments Tuesday before Utah's high court, Gardner's attorney, Andrew Parnes, argued that Gardner should be allowed to challenge an inadequate jury instruction, even though Gardner never brought up the issue when he first filed for an appeal.

Parnes also said the justices must also consider the appeal as the law was in 1990, when the appeal was filed.

In a hearing wrought with highly technical issues, Parnes and Assistant Utah Attorney General Thomas Brunker squared off on complex arguments.

Utah law limits what can be appealed if it was not originally brought up on first appeal after the conviction. Brunker summarized the issue in one simple outcome: If Gardner is allowed to bring up a new issue that was not a part of his original appeal he could possibly then begin to bring up an indefinite number of new appeals in the future.

The law instructs that appeals are tested to see if they are not frivolous on their face, if the appeal is not barred by law and if the issue has merit. Justices questioned under 1990 law, given other court rulings, which of the three criteria should be applied first. Brunker and Parnes gave conflicting opinions.

How the supreme court rules will determine if Gardner will be allowed to continue his appeal before a federal court. Gardner, 45, is on death row for shooting and killing attorney Michael Burdell and wounding a bailiff during a failed escape attempt from the a Salt Lake County courthouse in 1985. Gardner was wounded from a bailiff's bullet during the melee.

Later, a jury convicted Gardner of capital murder and he was sentenced to death. He also pleaded guilty as part of a plea bargain to a prior unrelated murder and was sentenced to life with parole.

Gardner appealed to the Utah Supreme Court, which upheld his conviction. He then brought up a federal appeal in 1995 to a federal court, which included his new issue. In his federal appeal, Gardner claims the jury instructions did not properly state the elements of capital murder by using the word "knowingly."

Outside court, Brunker said Gardner's appeals could drag on for years more. Regardless of how the Utah Supreme Court rules, U.S. District Judge Tena Campbell will have to apply the ruling to her decision, which will require more hearings. Even after Campbell's ruling, Brunker said it is likely the case will be appealed to the 10th Circuit Court of Appeals in Denver.

It has already been over 20 years since the courthouse murder.

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E-mail: gfattah@desnews.com