Lengthy death-row appeals targeted

Utah Attorney General Mark Shurtleff and some lawmakers want the state constitution changed to stop the Utah Supreme Court from delaying murderers' executions.

"We have won every battle," Fred Voros, chief of criminal appeals for the attorney general, told the Constitutional Revision Commission Thursday. Waving a list of the current murderers on death row, Voros said the state "wins at trial, we win on appeal. But we are losing the war" in trying to get properly convicted murderers executed in a timely manner. While Utah has the death penalty on the books, in reality it only has life without parole because of the high court's appeal procedures, Voros said.

Ronnie Lee Gardner, for example, has been sitting 23 years on death row, and still is not close to lethal injection.

But a number of members of the CRC, a group appointed by the governor and Legislature, clearly are uncomfortable with SJR14, a constitutional amendment on post-conviction appeals that passed the Senate last general session, but failed in the House.

Supreme Court Chief Justice Christine Durham, who sat on the CRC for 12 years, but is no longer on the commission, said Thursday that while she couldn't discuss specific death penalty cases, the high court is following the law and the constitution in its decisions.

Said Durham: "It is unnecessary and unwise" to pass an amendment like SJR14.

Several CRC members said that rather than achieving the laudable goal of fair capital punishment, SJR14 is severely flawed, really a legislative power-grab.

The CRC will study the issue over the summer and make a recommendation to the 2010 Legislature, which will likely take it up again. If it passes an amendment, that change will go before voters in November 2010.

At issue is whether the high court is strictly following a 1996 statute on post-conviction appeals or is allowing appeals based on common law, outside of that statute.

In short, the five Supreme Court justices say that only they can decide which appeals they hear, not the Legislature, critics of the high court argue.

Not so, said Durham. "It is my sense that" the Legislature wants "the court to make some kind of promise never to apply the constitution in a particular way. We can't do that." But the high court is definitely following the constitution in death penalty cases, she added.

At one point, former state Rep. Byron Harward, a CRC member, got into a debate with Tom Brunker, head of the attorney general's capital punishment appeal section, on whether the Supreme Court is overstepping its authority: "Yes it is," said Brunker. "No it isn't," said Harward, and back and forth for several seconds. "I guess we just disagree," said Brunker.