SALT LAKE CITY — Death-row inmate Ronnie Lee Gardner wants the Utah Board of Pardons at Thursday's clemency hearing to spare his life so he can help troubled kids save their lives through organic gardening.
Gardner's brother, Randy Gardner, bought 160 acres of property in northwest Box Elder County in 2002 where they have talked about starting a survival camp called Back to Basics. It would teach young people about farming, ranching and organic gardening — something the convicted killer has taken great interest in the past 25 years in prison. Randy Gardner said his brother pores over Mother Earth News and other magazines about agriculture, horticulture and horses.
"He just thinks if he'd had a chance to live that kind of life himself, he probably wouldn't be in the position he's in," Randy Gardner says in a video deposition recorded on the cedar- and juniper-covered land near the Great Salt Lake. "He'd like to give other kids a chance to get out of the ruckus of city life."
Gardner, 49, is scheduled to stand before a firing squad June 18.
A two-day commutation hearing for Gardner is scheduled to start Thursday morning after a day of legal wrangling in both the U.S. District Court and the Utah Supreme Court.
Gardner's attorney, Andrew Parnes, asked the state's high court Wednesday to stay the execution and send the case back to a state court for a new penalty phase. Gardner did not have the chance to present mitigating evidence — brain damage, a history of sexual abuse and a drug problem that started at age 5 or 6 when siblings gave him inhalants — that could have caused at least one juror to spare Gardner's life, Parnes argued.
Outside the courtroom, Parnes said Gardner "fell through the cracks" of the judicial system because of ineffective counsel and a lack of post-conviction funding.
Assistant attorney general Tom Brunker said Gardner waited too long to raise this latest appeal, one of many Gardner has pursued over the last 25 years. Even if the appeal isn't time barred, Brunker said, it lacks merit.
The court took the arguments under advisement and is expected to rule soon.
Gardner was sentenced to death in November 1985 for shooting and killing defense attorney Michael Burdell in April of that year. Gardner was in court on charges stemming from the murder of bartender Melvyn Otterstrom when he attempted to escape from guards and, with a gun slipped to him by an accomplice, killed Burdell and wounded court bailiff George "Nick" Kirk.
Parnes also Wednesday circulated handwritten declarations from two jurors who condemned Gardner to death in 1985.
Steven M. Miller wrote that jurors were not told Gardner had meningitis as a child that caused brain damage that affects his impulse control. The panel also wasn't told he was sexually abused and used drugs and alcohol as young as age 6, he said.
"If I would have heard these mitigating factors 25 years ago I would have voted for life" in prison, Miller wrote.
Juror Vicki Barrett in her declaration wrote, "I don't know that we knew that information.
"It's hard for me to say whether it would have changed my opinion. If we have had the option of life without parole, there may have been a different outcome."
That wasn't a legal sentencing option at the time.
Meantime, federal Judge Tena Campbell on Wednesday denied Gardner's last-minute request to postpone the hearing before the Board of Pardons. The five-member panel has the power to commute Gardner's death sentence.
Parnes contended Gardner can't get a fair and impartial hearing because Utah Attorney General Mark Shurtleff — or specifically the attorneys who work for him — has a conflict of interest in his role as both the state's chief prosecutor and adviser to the board of pardons.
A Yale University law professor who specializes in ethics and professional responsibility wrote in a deposition that the attorney general's involvement "hopelessly taints" the board's proceedings.
"Here a capital defendant faces his last chance to seek relief from the firing squad and the quasi-judicial body to decide this petition is represented by the same office that simultaneously appears before the board as a ferocious advocate seeking a denial of Mr. Gardner's request for relief," Lawrence J. Fox wrote.
As an example, Fox pointed to a statement on Shurtleff's website that says his role is to "battle killers such as Ronnie Lee Gardner."
State attorneys countered that their office is obligated by the Utah Constitution to represent all government departments and that it has created a "firewall" between lawyers working for its criminal division, the board of pardons and corrections department. The policy bans them from communicating with each other and ensures both physical and computer files are sequestered.
Campbell rejected Gardner's motion to put off the hearing, saying his arguments don't amount to due process violations and the state's firewall is sufficient.
Parnes argued Gardner's due process rights would be violated because the board won't allow Randy Gardner's video deposition to be presented in public. The board, though, has agreed to consider the testimony in private.
"All the evidence will be heard by the board," David Wolf, assistant attorney general, said in court.
Because the 10-minute video won't be shown during the hearing, Parnes said he wants to make sure board members watch it.
"We're basically asking for fairness in the commutation hearing. That's it," he said outside the federal courthouse.
Parnes wants the board to see Gardner is a changed person from 25 years ago.
In the video deposition, Randy Gardner says he and his brother want to help troubled youth by teaching them to grow their own vegetables, raise chickens and tend cattle.
"It's been a dream of mine and Ronnie's to do something good for society. Ronnie grew up with a very dysfunctional family and it would be a good way of him giving back to society."
Local attorney Tyler Ayres, whom Randy Gardner contacted in 2008 to help start the survival camp, also speaks on the video. Ayres calls Ronnie Lee Gardner a man with "good ambitions."
Ayres said he has set up a nonprofit company called Back to Basics, Inc., and has a business plan ready to go. Neither he nor Randy Gardner say how they intend to finance the project, and that Ronnie Lee Gardner has said he doesn't care if his name is attached to it.
"He's not doing it to make up for the sins of the past. He's not doing it as some sort of penance."
Ayres said Gardner told him he's not interested in the project to save his own life, but to help others save theirs.
"He has told me repeatedly, 'My life is over. No matter what I will never get out of here.' "