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SALT LAKE CITY -- The Utah Supreme court heard arguments Thursday on why condemned killer Ronnie Lee Gardner should not be executed.
Attorneys for Gardner want justices to reverse a state court judge's order of execution by firing squad and impose a lifetime prison sentence, or grant him a new sentencing hearing.
In court, Gardner's attorneys urged the justices to give Gardner his due process of law and review new mitigating evidence that was not heard in past hearings.
It's a rehashing of claims and evidence that he's raised and lost before.
–Assistant Utah Attorney General Thomas Brunker
"He should have that right, he should have that," Gardner's attorney Andrew Parnes said. "That's what we're arguing about. He didn't get it at his first trial and we've been trying now to get that right."
Gardner's attorneys said that new evidence, including details about Gardner's troubled childhood, could be enough for a jury to sentence him to life in prison.
In a brief filed with the court, Gardner's attorneys claim Gardner was a victim of sexual and physical abuse. They say that abuse ultimately set him up for failure.
Defense attorneys claim had that evidence been presented in court, Gardner would have received a life sentence. They say it would violate Gardner's constitutional rights to execute him without the state court hearing mitigating evidence.
But Assistant Utah Attorney General Thomas Brunker said, "It's a rehashing of claims and evidence that he's raised and lost before."
Gardener's attorneys also claim that after 25 years on death row, executing Gardner would be cruel and unusual punishment that serves no purpose.
"Executing Mr. Gardner now, after nearly 25 years of living on death row does not serve any penological purpose and cannot be justified," Parnes said in his written arguments.
A Utah district judge has already denied a request to vacate the death sentence, and Utah's Supreme Court has in the past upheld Gardner's conviction and sentence.
"There are lots of appeals that exist and they exist for a reason," says criminal law consultant Marguerite Driessen. "This is obviously a draconian sentence. It's the ultimate penalty and the state doesn't want to do it without knowing they've gotten it right, so there are procedures in place."
Driessen is also a law professor at BYU. She says many of these arguments have already been presented.
This is obviously a draconian sentence. It's the ultimate penalty and the state doesn't want to do it without knowing they've gotten it right.
–Marguerite Driessen
"As to whether or not it's too late to bring those arguments in this case, that will depend upon the facts," Driessen says. "A lot of them are repetitious and you don't get to keep bringing up the same argument over and over again. That is one of the things they consider an abuse of the system."
Driessen says if new arguments are presented, it could delay the execution. Gardner, 49, is set to die June 18.
Gardner was not in court today, but the family of Melvyn Otterstrom was at the hearing. Gardner was convicted of killing Otterstrom in 1984. He was at a hearing on the charges when Gardner killed attorney Michael Burdell during a failed escape attempt.
"It's about time justice is served," said Craig Watson, Otterstrom's cousin. "The 18th of June is coming up, and I certainly hope that the Supreme Court goes through and we execute Mr. Gardner on the 18th of June."
Thursday's hearing isn't the only legal avenue Gardner will pursue. His attorneys will also make his case before the Board of Pardons and Parole at a commutation hearing next week.
Burdell's family plans speak at that two-day hearing. They've spoken out against the death penalty, saying Burdell would not want Gardner to die.
State attorneys contend Gardner has no right to appeal the signing of a death warrant. In a court papers, Assistant Utah Attorney General Tom Brunker also claims there is no merit to Gardner's argument that the mitigating evidence would have produced a different sentence.
"He has not proven a reasonable probability that a jury presented with the 'full picture' would have sentenced him to life," Brunker wrote.
Brunker said Gardner lost that argument when the federal court upheld his conviction and sentence in 1999.
The justices are taking the case under advisement. They will also come up with a briefing schedule for Gardner's post-conviction appeal.
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Story compiled with contributions from Anne Forester, Sandra Yi, Marc Giauque and The Associated Press.
