SALT LAKE CITY — For the past 25 years, Ronnie Lee Gardner has fought to keep death at bay.
But his years of appeal after appeal may end today when a 3rd District judge will decide whether to sign a new death warrant.
Convicted of murder and sentenced to die in 1985 for shooting and killing attorney Michael Burdell during a courthouse escape attempt gone wrong, Gardner has made numerous attempts to appeal the conviction, starting as early as 1989. The case has made its way through the Utah, federal and Supreme Court systems before it was again rejected by the 10th Circuit Court of Appeals in June. The U.S. Supreme Court has declined to hear Gardner's petition a number of times, the most recent refusal issued in early March.
Gardner has based his appeals on various claims, including ineffective counsel, improper instructions to the jury, the use of testimony by someone who was hypnotized and the claim that the shooting was unintentional.
Defense attorneys for Gardner filed a memorandum as recently as April 9, just three days before Judge Robin Reese was to sign an execution warrant. They argue that executing Gardner now would constitute cruel and unusual punishment, citing — among other things — the "excessive delay" in the review process.
The cost and length of time a death row appeal can take is a point of contention. Some see it as an important process, rooted in the fundamental right to life. Others say it's a luxury, allowing killers to stay death in a way their victims couldn't.
Veteran defense attorney Elizabeth Hunt, who worked on a number of Utah death row cases including Ralph Menzies, Roberto Arguelles, Troy Kell and Taberon Honie, said she understands the complaints, but believes the gravity of the punishment warrants the effort and expense.
"Our laws require a very detailed review process in these cases and it is extraordinarily expensive and time consuming," Hunt said. "But given what is at stake — human life — we morally cannot afford to act haphazardly or to ignore mistakes."
Prosecutor Tom Brunker, who has worked in the capital punishment appeals section of the Utah Attorney General's Office since 1993 and led the department since 1999, said it's not the appeals that are illegitimate, but the way the system is set up that allows them to go on for so long.
"I don't think our office begrudges anyone who raises all legitimate claims as long as they do it timely and at the first opportunity," Brunker said. "The issue we have is there were judicial rules that encouraged repeated petitions, reconfiguring claims and filing more petitions."
Take, for example, the case of Troy Kell, who has been appealing his conviction for the past 14 years and recently halted a federal appeal to pursue a new state petition claiming his trial counsel was ineffective. Brunker said the appeal is founded on Kell's claim that his attorneys should have made sure that the handcuff keys used in the trial were the exact ones he used to free himself and then murder fellow inmate Lonnie Blackmon by stabbing him 67 times.
"Who cares?" Brunker said. "Kell said on the stand 'I used a key,' it doesn't matter whether the shank and handcuff key are the exact ones he used, but that's the kind of claim he's raising.
"This isn't assuring that his conviction and sentence were just. This is just trying to slow the process down by burying us in paper."
For those who raise the question of housing costs versus executing an inmate — Brunker says the numbers vary and there are none that have specifically looked at Utah — he said it's not really the money that matters.
"Cost isn't the only issue," he said. "A death sentence is an expression of society's outrage for an especially reprehensible murder committed by an especially reprehensible person."
Utah has a relatively low number of death row inmates, which is a result of a combination of factors. Brunker said prosecutors don't ask for it very often and juries rarely impose a death sentence, especially since juries were given the option of imposing a sentence of life without the possibility of parole in 1992.
"If a jury can be assured that the defendant can be warehoused in prison and not harm people … then they are more likely to impose that sentence," Brunker said. "But people like Gardner and Kell you can't house. Gardner escaped from a medical center (while in custody) and stabbed (a man) and Kell already had a life without parole sentence when he killed Lonnie Blackmon."
He said the AG's office is working on getting an amendment passed into law that would limit how many appeals an inmate can file.
The way Hunt sees it, the whole process — including the strain the long appeals process can have on a victim's family — could be avoided if the death penalty were just eliminated as a punishment.
"I personally would prefer for us to avoid killing altogether," she said. "Whatever the men on death row have done, they will continue to answer for it. Their children, family and friends should not be made to suffer so extremely for their loved ones' crimes, and when these people live in anticipation of their father's or son's or brother's execution, or experience it, they do suffer."
She said she was drawn to death row cases while in law school, because she came to know a surviving victim of the 1974 Hi-Fi Shop murders while she was growing up in Ogden. She believed then that "working toward the executions somehow would negate or ameliorate those crimes, which were really horrible."
But the more she worked on the cases, she said she came to change her thinking on the value of the death penalty. She "soon came to understand that capital crimes really cannot be undone, and that the people who are convicted of those crimes are much like all the people I know — complex" and shouldn't be defined by their crimes alone.
She said the review process also helps to eliminate errors, which she believes are fairly common.
"If you look at the statistics and studies, there are a really surprising number of death penalty verdicts and sentences that are found to be legally invalid fairly late in the review process," she said. "This confirms the importance of reviewing capital cases to avoid killing an innocent person or to avoid killing where the law does not permit it."
Looking back on her efforts, Hunt said she has come to really believe that executions do more harm than they do good.
"I agree that as a society we spend too much time and money in death penalty cases," Hunt said. "Everyone dies someday, and hastening someone's death or delaying it does not seem like much of an accomplishment."