Denver appellate court denies Gardner request for Utah inmate facing execution by firing squad

Denver appellate court denies stay for

SALT LAKE CITY — An appellate court in Denver has denied a stay of execution for a Utah inmate set to die by firing squad early Friday.

The unsigned opinion by the court Thursday says Ronnie Lee Gardner’s argument of a conflict of interest by the Utah attorney general’s office is without merit.

Gardner’s attorneys filed a federal civil rights lawsuit alleging his clemency hearing was biased because of the alleged conflict of interest. They made the same argument in a hand-delivered letter to Gov. Gary Herbert on Thursday.

Gardner’s attorneys also have an appeal pending before the U.S. Supreme Court.

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

SALT LAKE CITY (AP) — Utah is set to execute a condemned killer by firing squad shortly after midnight Thursday, reviving an old West style of justice that hasn’t been used for at least 14 years and that many criticize as archaic.

Barring the success of any final appeals, Ronnie Lee Gardner will be strapped into a chair, have a target pinned over his heart and die in a hail of bullets from five anonymous marksmen armed with .30-caliber rifles and firing from behind a ported wall.

Petitions are pending before the 10th U.S. Circuit Court of Appeals in Denver and the U.S. Supreme Court. Gardner also has asked Gov. Gary Herbert for a temporary stay.

After a visit with his family, Gardner was moved from his regular cell in a maximum security wing of the Utah State Prison to an observation cell Wednesday night, Department of Corrections officials said. He will be allowed to see his attorney and clergy Thursday.

Gardner will be the third man killed by firing squad in the U.S. since a U.S. Supreme Court ruling reinstated capital punishment in 1976. Although Utah altered its capital punishment law in 2004 to make lethal injection the default method, nine inmates convicted before that date, including Gardner, can still choose the firing squad over lethal injection.

In April, Gardner politely told a judge, “I would like the firing squad, please.” His attorney said the decision was based on preference, not a desire to embarrass the state or draw publicity to his case.

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 1984 murder charge in the shooting death of bartender Melvyn Otterstrom.

In trying to delay the execution, Gardner has spoken emotionally in recent days of his desire to start a 160-acre organic farm and program for at-risk youth. He also acknowledged his own tortured trajectory to a parole board last week: “It would have been a miracle if I didn’t end up here,” he said.

Gardner first came to the attention of authorities at age 2 as he was found walking alone on a street clad only in a diaper. At age 6 he became addicted to sniffing gasoline and glue. Harder drugs — LSD and heroin — followed by age 10. By then Gardner was tagging along with his stepfather as a lookout on robberies, according to court documents.

After spending 18 months in a state mental hospital and being sexually abused in a foster home, he killed Otterstrom at age 23. About six months later, at 24, he shot Burdell in the face as the attorney hid behind a door in the courthouse.

“I had a very explosive temper,” Gardner said last week. “Even my mom said it was like I had two personalities.”

On Wednesday, Gardner asked to talk to CNN’s “Larry King Live.” A statement from prison officials said the show’s producers expressed interest in a telephone interview and the Department of Corrections considered it but decided to maintain its policy of not making Gardner available to the media.

The show’s publicist didn’t immediately return a call seeking comment.

Some doubt that Gardner is, or could ever be, reformed.

Tami Stewart’s father, George “Nick” Kirk, was a bailiff who was shot and wounded in Gardner’s botched escape. Kirk suffered chronic health problems until his death in 1995 and became frustrated by the lack of justice Gardner’s years of appeals afforded him, Stewart said.

She said she’s not happy about the idea of Gardner’s death but believes it will bring her family some closure.

“I think at that moment, he will feel that fear that his victims felt,” Stewart said.

Burdell’s father, Joseph Burdell Jr., said Gardner’s desire to help troubled kids is proof that some transformation has come.

“I understand that he wants to apologize. I think it would be difficult for him,” he said by phone Tuesday from his Cary, N.C., home. “Twenty-five years is a long time. He’s not the same man.”

At his commutation hearing, Gardner shed a tear after telling the board his attempts to apologize to the Otterstroms and Kirks had been unsuccessful. He said he hoped for forgiveness.

“If someone hates me for 20 years, it’s going to affect them,” Gardner said. “I know killing me is going to hurt them just as bad. It’s something you have to live with every day. You can’t get away from it. I’ve been on the other side of the gun. I know.”