Condemned killer Ronnie Lee Gardner moved one day closer to the firing squad after losing another round in court.
A federal judge denied Gardner's latest request for a stay of execution Tuesday evening, saying his lawyers offered no new evidence that his commutation hearing last week was conducted unfairly.
Attorney Andrew Parnes argued the Utah Board of Pardons and Parole did not comply with fundamental principles of due process in holding the two-day hearing in which it deemed Gardner's death sentence is "not inappropriate."
Parnes contends the role of lawyers in the Utah Attorney General's Office as both criminal prosecutors and advisers to the board is an inherent conflict of interest. He made the same argument last week in seeking to postpone the execution date.
Gardner is scheduled to die shortly after midnight Thursday (early Friday).
In denying the stay, Judge Tena Campbell, as she did before, said she did not see the likelihood of Gardner winning should she call for a full hearing on the issues Parnes raised.
"There simply is nothing new that I did not have before me last week," Campbell said.
Outside the courthouse, Parnes said he will now take his arguments to the 10th Circuit Court of Appeals. The Utah Supreme Court on Monday also denied Gardner's request for a stay.
"No court yet has given him that full and fair adjudication that he is entitled to," Parnes said.
During Tuesday's hearing, assistant attorney general David Wolf said there is no conflict of interest between attorneys in the criminal appeals division and those who work for the board of pardons. The attorney general's office sent out a memo advising them to not discuss the case and cited affidavits from those attorneys saying they did not talk about anything "substantive."
"That could be accurate," Parnes said. "I don't know."
The only way to know, he said, would be to postpone Gardner's execution to allow time for a hearing.
Parnes noted that the "ethical screen" wasn't put in place until two months after the state filed for Gardner's execution warrant, leaving attorneys free to talk to each other during that time. He argued that Gardner is entitled to know the nature of any discussions.
Gardner's application contends no screen can ensure the state's lawyers don't have divided loyalties. "They all work for the same agency that prosecutes crimes and 'battles killers' in order to 'push executions to conclusion.' "
On his website, Attorney General Mark Shurtleff says his job is to "battle killers such as Ronnie Lee Gardner" and touts having pushed through two previous executions.
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.
Asked after the hearing how Gardner is doing, Parnes said he is in good spirits.
"He is handling this as well as could be expected," he said. "He's basically dealing with it."
By Dennis Romboy
Source: Deseret News