Utah Federal judge to hear petition to stay execution of man set to die by firing squad

UT federal judge sets hearing for condemned inmate

SALT LAKE CITY — A federal judge has decided to hear a petition for a stay of execution from a death row inmate set to die by firing squad this week.

U.S. District Court Chief Judge Tena Campbell set a hearing for 7 p.m. Tuesday.

Ronnie Lee Gardner wants his Friday execution stayed for a civil rights lawsuit he filed last week that alleges a commutation hearing held by the Utah Board and Pardons and Parole was tainted.

The parole board denied the 49-year-old’s bid for clemency Monday.

Gardner was convicted of capital murder and sentenced to death in 1985 for the fatal courthouse shooting of attorney Michael Burdell during an escape attempt.

THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP’s earlier story is below.

SALT LAKE CITY (AP) — A death row inmate set to be executed by firing squad Friday is scrambling to block his execution after losing an appeal at the Utah Supreme Court and failing to persuade the state parole board to grant him clemency.

Ronnie Lee Gardner’s attorneys are now ramping up a federal civil rights lawsuit filed last week against the Utah Board of Pardons and Parole. Gardner contends the commutation hearing process is tainted because lawyers that represent the board and the state prison all work for the Utah attorney general’s office — the same entity that sought Gardner’s death warrant and argued against a commuted sentence.

The case is assigned to U.S. District Judge Tena Campbell, but no hearing had been set Tuesday.

The parole board on Monday rejected Gardner’s efforts to get his death sentence reduced to life in prison without parole, and hours later, the Utah Supreme Court unanimously denied Gardner’s appeal.

In its 57-page ruling, justices said it was too late for Gardner to challenge his sentence and that he had been treated fairly throughout his 25 years of appeals.

“All of the claims Mr. Gardner raises in his most recent petition for post-conviction relief are claims that he could have raised more than a decade ago,” Associated Chief Justice Matthew B. Durrant wrote.

The court said it was “unpersuaded” by Gardner’s arguments that state law dictating how and when post-conviction appeals can be filed should be set aside in his case in order to avoid a violation of his constitutional rights.

Gardner can still ask the U.S. Supreme Court to review of the state Supreme Court ruling and stay his execution while it does so.

The 49-year-old is being put to death for a 1985 capital murder conviction stemming from the fatal courthouse shooting of attorney Michael Burdell during an escape attempt. Gardner was at the court because he faced a murder charge in the shooting death of bartender Melvyn Otterstrom.

Utah lawmakers made lethal injection the default method of execution in 2004, but inmates condemned before then can still choose the firing squad. That’s what Gardner did in April, politely telling a judge, “I would like the firing squad, please.” Neither he nor his attorneys have said why.

An e-mail sent to Gardner’s attorney, Andrew Parnes, was not immediately returned Tuesday.

In court papers and before justices last week, Parnes had argued that Gardner had not been treated fairly because mitigating evidence about his dysfunctional family, early childhood drug use and physical and sexual abuse were not heard by the state courts.

Such evidence, which had been developed for Gardner’s federal appeal, could have persuaded a jury to impose a life sentence, not death, Parnes said. He said Gardner is the only one of Utah’s 10 death row inmates not to be afforded state funds for post-conviction relief. Such monies were unavailable at the time of Gardner’s first appeal.

Gardner wanted the court to either vacate his death sentence and send the case back to a state court for a new sentencing hearing or commute his sentence to life in prison without parole.

But justices agreed with state prosecutors — and upheld a state judge’s ruling — that Gardner’s claims that he had lacked resources and was inadequately represented by attorneys during previous appeals should have been raised following rulings issued in the late 1990s.

“We are obviously pleased that the court recognized that Gardner could have brought these claims far earlier,” Utah Assistant Attorney General Thomas Brunker said Tuesday. “This well-reasoned opinion should be all but the very last step to bring that 25 years of review to an end.”