Judge may sign Ronnie Lee Gardner death warrant Friday

Published: Friday, April 23 2010 12:00 a.m. MDT

Ronnie Lee Gardner is captured after killing lawyer Michael Burdell while trying to escape from courthouse in April 1985.

O. Wallace Kasteler, Deseret News archives

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."

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