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SALT LAKE CITY — A Chicago native has spent nearly half of his life on Utah's death row for the killing of a Provo grandmother.
Now, 33 years after a jury first sentenced him to die, 63-year-old Douglas Stewart Carter is asking Utah's highest court to order a new hearing based on details of the case that came to light years after he was convicted.
Carter's attorneys argue that they learned in 2011 of gifts police gave to star witnesses in the case, saying the Provo officers paid the couple's rent and instructed them to lie about the financial help.
"Mr. Carter's been on death row for over 30 years and all he's asking for is a fair trial," defense attorney Eric Zuckerman said Wednesday after the Utah Supreme Court heard arguments in Carter's case.
His lawyers contend the new information could have changed the outcome of the case and a lower court should review the evidence at a new hearing. Prosecutors say that's not true, arguing the testimony from Carter's friends mirrored his own admission to police about killing 57-year-old Eva Olesen — the aunt of a former Provo police chief — during a robbery of her home.
"Carter confessed to the police, and he told his friends, the Tovars, what he'd done," Utah's Assistant Solicitor General Erin Riley said after the hearing. "These new declarations don't change anything about their testimony, about Carter telling them he committed the murder."
Justice Deno Himonas suggested he sees it differently.
"It renders them impeachable to the nth degree, if they're being paid by the state" and disclosing they felt pressured to lie, he said.
What's more, argued Carter's defense attorney, Paula Harms, the police officers' alleged secret behavior lends more credibility to Carter's assertion that he was coerced to confess, she said.
"We believe the confession is thrown into doubt because the veracity of law enforcement is thrown into doubt," Harms said in court. She said the defense would have argued the case differently and the jury deserved to know about the money.
The state, however, emphasized in court filings that Carter presented no evidence at the 1985 trial that his statement was false, noting the witnesses have not recanted their testimony.
During a roughly hourlong hearing, justices quizzed the attorneys on both sides. The court did not issue a decision Wednesday and Carter was not present.
Jurors originally convicted him of stabbing and shooting Olesen during a home-invasion robbery in Provo on Feb. 27, 1985, and sentenced him to death. The jury considered Carter's written confession and his bragging to friends Epifanio and Lucia Tovar that he killed a woman. He appealed the sentence and in 1992, and another jury upheld the death penalty.
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He also has a petition pending in federal court, but that is stayed as the Utah Supreme Court weighs its decision. No execution date has been set.
Last year, 4th District Judge Lunn Davis sided with prosecutors, ruling that Carter failed to show his constitutional rights were violated and that the newer evidence likely wouldn't have led to a more favorable outcome. In 2011, Davis decided that the new evidence came too late to be included in Carter's state petition for post-conviction relief.
The Tovars had testified during trial that police provided no incentive for them to take the stand beyond a $14 check they each received. But Carter's attorneys said they learned in 2011 that the couple received more money and gifts and police coached them to lie.
In a sworn declaration, the pair said police relocated them twice to protect them from Carter, paid their rent and utilities, gave gifts to them, including a Christmas tree, and bought toys for their children. They also said police threatened to deport them, file criminal charges and take away their son if they didn't cooperate in the case.
Epifanio Tovar, who admitted to disposing of Carter's .38-caliber handgun used in the murder, "had every reason to cast suspicion away from himself and onto someone else," Harms said Wednesday.
She also argued that Lucia Tovar gave inconsistent statements at different points in the case, but the state countered that's because she feared retaliation from Carter.
Wednesday was not the first time Utah's Supreme Court has weighed an appeal from Carter. The court rejected other petitions he filed on other grounds, including an alleged conflict of interest by a mental health expert who evaluated him and testified in the 1992 trial.
On Wednesday, Chief Justice Matthew Durrant and Associate Chief Justice Thomas Lee recused themselves. Two judges from the Utah Court of Appeals took their place.
