Douglas Carter

PROVO — Twenty-three years ago, Douglas Stewart Carter confessed to police and friends that he murdered a 57-year-old Provo woman.

He's been convicted of the crime and sentenced to die — twice — by juries. He's also already lost his first post-conviction appeal hearing, asking that he be spared the death penalty.

And just when prosecutors thought they were getting close to moving forward on the decades-old case, Carter threw them another curveball.

"Every time we're close to a ruling ... Carter files something that derails that," said Utah's deputy attorney general Thomas Brunker after a hearing Thursday in 4th District Court.

Most recently, that pitch was 400 pages of argument and supporting evidence from Carter's attorney, Mark Moffat, who told Judge Lynn Davis he filed the papers to update the court on what he felt were correlated issues from another Utah death-row case.

But that hefty supplemental argument, which followed an Oct. 2, 2007, hearing, has two problems, Brunker argued Thursday.

First, it's too long. Second, it wasn't requested by the court and as such, shouldn't be considered.

When the Attorney General's Office first learned of the monumental filing, it responded with a

motion asking the court to strike it — meaning the judge wouldn't consider it.

Because Moffat never filed anything opposing that motion, Brunker argued that failure to reply should mean Davis should grant their motion — a move Moffat vehemently opposes.

One issue is money, as Moffat's client has been in prison since 1985 and can't pay him.

Moffat can get funds from the state, but it's far below what he says he needs or deserves.

His motion outlined details from another death-row case where the defendant's attorneys have also questioned the funding for post-conviction attorneys in Utah.

He didn't bring this point up at the oral argument hearing in October because he discovered it after the hearing, Moffat said.

"I called and requested copies of the brief, and ... here's a brief that talks about the adequacy of the funding claim," he said. "I wanted the court to have this information. I thought it was important. The adequacy of the funding scheme features front and center in this case. It's an issue this court is going to have to address."

While the payment for post-conviction attorneys is low, agrees Brunker, the two death-row cases are different enough the argument is almost tangential, a fact Davis also pointed out.

In court, Brunker asked the judge to strike everything Moffat had just argued, stating that his comments should have been in motion form and filed in response when Brunker asked the court to not accept the supplemental argument.

He argued that if Davis didn't throw out the hefty pile of additional argument, they would need additional time to respond and perhaps even gather additional evidence.

Further complicating the case, Moffat is trying to withdraw as counsel, citing concern about his abilities as a post-conviction, death-row attorney.

"When you have lawyers taking on representation of death-row inmates, there's no more important work out there," he said. "It is unbelievably stressful. You carry these cases with you all the time, every waking hour. I'm so worried about what's going to happen ... because I'm not qualified. That's why I moved to withdraw."

State prosecutors believe Carter has been adequately represented and that changing attorneys would only delay the case more.

Davis said he will rule in writing on the first issue — whether the extra arguments should be considered — within 30 days.


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