Utah Supreme Court hears appeal of death row inmate

Published: Wednesday, March 7 2012 3:57 p.m. MST

SALT LAKE CITY — Death row inmate Douglas Stewart Carter took his second state post-conviction relief petition to the Utah Supreme Court on Wednesday.

It's the fourth time Carter's case has been heard by the state's high court since his conviction for the murder of 57-year-old Eva Olesen, 27 years ago.

"(This is) a crime (Carter) was convicted of and twice confessed to 27 years ago," Thomas Brunker, who heads the capital appeals division of the Utah Attorney General's Office, told the five justices. "In this case, all of Mr. Carter's claims are procedurally barred and time barred, and there are no exceptions for them."

Brunker said there is no new evidence in the case that would warrant another look at the matter by a lower court and that analysis could end at the procedural issues.

Carter's attorney, Ken Murray, said there have been "fundamental inequities" in his client's case. Murray pointed to a number of factors ranging from ineffective assistance of counsel to "systemic problems in the state of Utah" when it came to funding.

The attorney also said there is still forensic evidence in Carter's case that has not been reviewed, including fingerprints from the crime scene that did not match those of his client.

Murray noted that a federal court judge found that there are claims that have not yet been exhausted.

All of those things "have denied Mr. Carter to have one fair shot, one fair review," he said.

Brunker countered that while ineffective assistance of counsel may provide an exception to procedural bars, Carter's rights to effective counsel have "plainly not been violated here." He told the high court justices that they could end their analysis at the procedural issues.

"Are there any of your claims that are not procedurally barred by the post-conviction relief act?" Justice Thomas Lee asked Murray.

"We believe the court has the power — and in this case they should — to nonetheless let the merits be reviewed," Murray said.

Brunker said there is no basis for a review on the new evidence claim and pointed out that the claims made were "cut and pasted" from Carter's pending appeal in the federal court.

Carter, 56, currently has petitions in four courts — state, federal, the 10th Circuit Court of Appeals and the Utah Supreme Court. Of the nine inmates on Utah's death row, he is the furthest along in the appeals process, but an execution date has not been set.

Carter's case landed before the state Supreme Court as an appeal to a denial of a second post-conviction relief claim in the trial court. Brunker said a trial judge found that all of the claims were procedurally barred and dismissed the matter.

The justices took the matter under advisement Wednesday and will issue a written ruling in the coming months.

A jury convicted Carter of stabbing and killing Olesen during a home-invasion robbery Feb. 27, 1985, and sentenced him to death. Carter has been on death row since 1986.

The Utah Supreme Court vacated the death sentence after Carter's first direct appeal. He was sentenced to death by a jury a second time in 1992.

An April 5 execution date has been set for Michael Anthony Archuleta, who was sentenced to death in the Nov. 22, 1988, murder of Southern Utah University student Gordon Ray Church, 28. However, Archuleta has not pursued a federal appeal and it is likely the execution will be halted to allow for that petition.

E-mail: emorgan@desnews.com Twitter: DNewsCrimeTeam

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