Although Douglas Carter stabbed the aunt of Provo's police chief 10 times and, fearing she wasn't dead, shot her in the head, the episode nonetheless should not have been deemed "cruel and atrocious," an attorney for the American Civil Liberties Union argued Thursday.

Lionel Frankel, a University of Utah law professor, submitted an amicus curia (friend of the court) brief on behalf of the ACLU in support of death-row inmate Carter's appeal to the Utah Supreme Court.Carter, 33, was convicted of murdering Eva Olesen, 57, the aunt of Provo Police Chief Swen Nielsen. She was found shot and stabbed in her home on Feb. 27, 1985.

During oral arguments, Frankel told the justices that jurors were not, as required by law, instructed on the legal definitions of the words "cruel and atrocious," which are are used in Utah's murder statute as criteria to determine whether the death penalty is a warranted.

"Those are emotion-laden words," Frankel said.

He told the justices that cruel and atrocious, when properly defined, mean the infliction of "gratuitous pain" on a victim either through physical torture, abuse or serious bodily injury before death. Carter's crime, however reprehensible, does not rise to that level, he argued.

"It's very doubtful there was a gratuitous intent to inflict pain," Fran-kel said. "He tried to kill her and he didn't do it very well. He was an incompetent killer."

What's more, Frankel continued, Carter's defense attorney, Chicago lawyer Duke McNeil, was so incompetent that he did not catch the error nor did he put on any evidence during the penalty phase of the trial that would have mitigated the impact of those words.

Carter's new court-appointed attorney, Thomas H. Means, also raised the issue of ineffective legal counsel, claiming that McNeil was unprepared and did not adequately familiarize himself with Utah law.

Assistant Utah Attorney General David Thompson conceded that failing to instruct the jury on the meaning of the crucial terms was an error. But he argued that it was a harmless error that did not affect the outcome of the jury's decision.

He pointed out that Carter had a prior conviction for burglary and was in the process of a burglary when the crime was committed. Those two offenses constitute the sort of prior offenses that count as aggravating circumstances and weigh in favor of the death penalty, he said. Thus, even if the jurors had been properly instructed, they still could have voted in favor of death.

However, at least one justice was skeptical.

"There isn't any evidence this guy is a terribly bad actor," commented Justice Michael Zimmerman.

Zimmerman seemed even more concerned about the claim of incompetent legal counsel. He suggested that it might be a good idea to remand the case back to 4th District Court in Provo so that more information can be collected on McNeil's performance at trial.

Thompson said that, traditionally, the lack of a record on the incompetence of legal counsel weighs against the defendant. But he conceded that it was a close call and suggested that the justices could, if they were sufficiently concerned, remand the case to the lower court to develop more information on that point.