Will inmates have to defend selves?

PROVO — If an attorney with 20 years of experience feels unqualified to defend a death-row inmate, it's ludicrous to expect the inmate to defend himself, that attorney says. But that's what a new bill, approved in the 2008 legislative session, would require if no other attorney would take the complicated case.

"To expect that a nonlaw-trained death-row petitioner ... could adequately handle these cases is a complete fiction," said Mark Moffat, whose client, Douglas Carter, is on death row. "That provision is as Draconian a provision as exists."

Moffat is referring to the final paragraphs in SB277 — post-conviction remedies act revisions — signed by the governor last Monday, which could greatly affect his client's pending 4th District Court post-conviction relief case.

Among other revisions, the bill states that if no attorney will take a post-conviction relief case for a death-row inmate within 60 days from the request for counsel, the inmate must represent himself or the post-conviction appeal is thrown out and he proceeds toward execution.

Although defense attorneys may see the provision as unacceptable, too many death row cases in Utah are stagnant, said Thomas Brunker, deputy Utah attorney general. Brunker said he hopes the provision will encourage attorneys to stay on the cases and work them through, rather than abandon ship at crucial times.

"The situation we're in with these cases is intolerable," Brunker said. "(They're at) a complete halt. The victims suffer, the people of the state are entitled to a speedy resolution. We have decades-old cases that are just halted and none of these death-row inmates are innocent."

Carter was convicted and sentenced to die in 1986 for the murder of Eva Olesen of Provo — the aunt of a former police chief. He was resentenced in 1992 to death and has been appealing ever since.

He's been tried, convicted and sentenced, plus the Utah Supreme Court's affirmation of those decisions, but Carter's post-conviction relief appeal means he is essentially "suing" Provo's 4th District Court, saying there was a constitutional flaw in either the first conviction or sentence or both, Brunker said.

"Now, he's the plaintiff instead of the state and he has the burden of proof," Brunker said. "But unlike any other plaintiff, he has no incentive to move the case along. The longer (he) can drag that process out, the longer (he) can stay alive."

Brunker labels Moffat's attempt to withdraw as counsel another delay, which Moffat strongly denies.

"The state has this view that we're doing this deliberately, to purposefully delay the proceedings," Moffat said. "It is not true, it has never been true."