Francisco Kjolseth
Ronnie Lee Gardner

SALT LAKE CITY — Less than a week before his scheduled execution by firing squad, Ronnie Lee Gardner will appear before the Board of Pardons to ask to have his sentence changed to life in prison without the possibility of parole.

A commutation hearing has been scheduled for Gardner, 49, for June 10 and 11, and filings in the case boil down to one question — whether the death row inmate deserves any mercy.

Gardner's attorneys believe his sentence is too harsh when compared to the others who have been executed in Utah, and the lawyers argue that the state should show "mercy" for Gardner, who they say is "no longer the same man who committed the crime for which he is sentenced to death."

The Utah Attorney General's Office responded by expressing an opposite view.

"There is no question about Gardner's guilt," prosecutor Tom Brunker wrote. "Gardner has not shown that he is entitled to mercy or that the Board of Pardons should set aside a jury's sentence that the judiciary has found to be constitutionally sound, even after 25 years of review."

This hearing is independent of the two separate court actions also pending in Gardner's case, Board of Pardons spokesman Jim Hatch said.

"This is an executive clemency hearing," Hatch said. "What that means is that the defense counsel has to argue things that are outside of legal arguments. They need to raise special arguments that are not for the courts. We're coming from the executive branch of government instead of the judicial branch."

After hearing these arguments, the board can make one of two decisions: to allow the execution to go forward or to commute Gardner's sentence to life in prison without the possibility of parole. Hatch said the board holds these hearings "so infrequently" that it's hard to determine whether two full days will be needed to hear arguments, but regardless, the board plans to hand down its ruling in advance of the scheduled June 18 execution date.

"They'll take as long as they need with the execution date, of course," he said. Gardner's attorneys filed a petition requesting the hearing in early May and outlining their rationale in requesting clemency for Gardner, who was convicted of murder and sentenced to die in 1985. Gardner was in court on a separate murder charge in April 1985 when he tried to escape the old Salt Lake County courthouse, shooting and killing defense attorney Michael Burdell and wounding court bailiff George "Nick" Kirk with a gun that had been smuggled in by a girlfriend.

The 25 years that have passed since the murder are one of the reasons the execution should not take place, Gardner's attorneys state. They say Gardner's death "serves only two purposes — retribution and deterrence," but "neither purpose would be served" by executing the judgment of death at this point.

In the petition, they state Burdell's family does not seek retribution in the form of the death penalty, because they believe Burdell wouldn't want Gardner to be executed. Further, they believe that there isn't "any possible deterrent effect" an execution could have after 25 years.

Attorney Andrew Parnes also lists the six men who have been executed in Utah since the death penalty was reinstated in 1976. He outlines the crimes committed by these men, arguing that "a review of the facts of Mr. Gardner's case and of their cases starkly demonstrates that he is not their peer."

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But state prosecutors believe the 25 years of appeals, which have led to rulings that Gardner's sentence was constitutional, only confirm that the sentence was fair and needs to be carried out. Brunker also said Gardner has failed to prove that he is no longer the same person that he was in 1985 and that he is "clearly the peer of many of the murderers with whom he asks the board to compare him."

Gardner is also seeking relief from the 3rd District Court and the Utah Supreme Court. A hearing for his petition for post-conviction relief is scheduled for May 27 before 3rd District Judge Robin Reese, and the Utah Supreme Court will hear oral arguments on Gardner's appeal of his death warrant, which was signed by Reese April 23.