Utah inmate facing firing squad seeks federal stay after state high court denies appeal

Utah man facing firing squad seeks federal stay

SALT LAKE CITY — A federal judge has denied a request from a Utah death row inmate seeking to postpone his execution while he pursues a civil rights lawsuit.

U.S. District Court Chief Judge Tena Campbell rejected Ronnie Lee Gardner’s petition for a stay of execution Tuesday evening.

Gardner is set to be executed by firing squad Friday. He 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.

Gardner’s lawyers are ramping up federal civil rights lawsuit filed last week against the Utah Board of Pardons and Parole. The parole board Monday rejected Gardner’s effort to get his death sentence reduced to life in prison without parole.

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 lawyers said Tuesday that they will ask the U.S. Supreme Court to stay the execution and review the Utah court’s decision.

Attorney Andrew Parnes said he’ll argue in the appeal that Gardner’s constitutional rights will have been violated if he is executed before a state court hears mitigating evidence that could have swayed jurors toward a sentence of life in prison.

Utah Assistant Attorney General Thomas Brunker said the state will oppose any further delays of the execution.

Meanwhile, Gardner’s attorneys are 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 “hopelessly biased” 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 parole board on Monday rejected Gardner’s effort to get his death sentence reduced to life in prison without parole, and hours later, the Utah Supreme Court unanimously denied Gardner’s appeal.

U.S. District Court Chief Judge Tena Campbell set a hearing for 7 p.m. Tuesday to hear Gardner’s petition for a stay of execution while he pursues the civil rights lawsuit.

Gardner, 49, was sentenced 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.

In court papers filed Monday, Parnes contends the state has a conflict of interest that’s difficult to overcome.

The attorney general’s office maintains that it has an obligation to represent all state agencies. The office said it recently set up internal electronic firewalls that are designed to prevent conflict from occurring between attorneys representing different state agencies.

But Parnes contends the parole board received “tainted legal advice” ahead of last week’s commutation hearing for Gardner. He also writes that the attorney general’s “ethical screen” does not ensure that attorneys representing the board do not share the same mission as those defending against the appeals of Utah’s condemned.

In rejecting Gardner’s appeal, the Utah Supreme Court said it was too late for Gardner to challenge his sentence or allege his resources to appeal were inadequate.

“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.

Parnes contends that mitigating evidence about Gardner — a dysfunctional family, early childhood drug use and physical and sexual abuse — must be heard in state court and may have persuaded a jury to impose a life sentence, not death.