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Utah man set for execution by firing squad says he's reformed, makes final appeal for clemency

DRAPER, Utah (AP) — After two days of testimony about a condemned Utah man's journey from a life of violence to reformation, his lawyer said Friday that fairness should compel a state parole board to stop his execution by firing squad.

"He came from a family that exuded criminality and violence, and that is what he was," Ronnie Lee Gardner's lawyer, Andrew Parnes, told the Utah Board of Pardons and Parole. "He's changed, he's overcome that."

Gardner wants the board to reduce his death sentence to life in prison without the possibility of parole.

A majority of the five-person board must vote for clemency to cancel Gardner's execution scheduled for June 18. The board plans to announce its decision Monday.

Arguing against commutation, Assistant Utah Attorney General Thomas Brunker said two murders, and a string of other violent crimes including several escapes, support the proposed punishment.

Brunker noted that Gardner's conviction and sentenced have been subject to 25 years of judicial review and that his death sentenced had been repeatedly upheld.

"Mr. Gardner's sentence is fair, was fair and should be carried out," Brunker said.

But Parnes said fairness also requires the board to do what jurors could not during Gardner's 1985 murder trial: consider mitigating evidence from Gardner's troubled life that includes early drug addiction, physical and sexual abuse and possible brain damage.

He contends that had jurors known Gardner's family history, they might have been swayed toward a lesser sentence, even though the law didn't allow for a life sentence without the possibility of parole at the time. The law was changed in 1992, and the information about Gardner's troubled life was uncovered seven years later during a federal appeal.

Four of the jurors who sentenced Gardner submitted statements to the board stating that their minds might have been changed if they had known more about his life, or if there had been other options to punish him.

"I agreed to vote for death because I just wanted to go home," juror Pauline Davies wrote, adding that she was the last juror to agree to the sentence. "I would prefer that Gardner be given commutation and life without parole."

During some two hours of questioning Thursday, Gardner said that for most of his life he was an impulsive, unapologetic person who looked for trouble. That began to change in 1999 as he met with psychologists and understood the damages wrought by his dysfunctional family life, Gardner testified Thursday.

He also said he supports the death penalty as a punishment.

"But they need to be fair," Gardner said. "In my case I never had that chance."

Gardner, 49, was convicted of capital murder and sentenced to death for the fatal shooting of attorney Michael Burdell in a botched courthouse escape attempt. Gardner shot Burdell in 1985 while trying to escape from custody at a Salt Lake City courthouse, where he faced a hearing on charges that he murdered bartender Melvyn Otterstrom the previous year. He pleaded guilty in the Otterstrom case.

Burdell's father, Joseph Burdell Jr., asked the board in a videotaped statement to reduce Gardner's sentence because his son did not believe in the death penalty.

As an adult, Gardner has spent nearly 30 years in prison on various criminal convictions, and Brunker said Gardner's claims of reformation seem like an 11th-hour plea from someone trying to save his own life.

While incarcerated, Gardner has helped instigate at least one riot and successfully escaped at least twice. Only in the last 10 years has he ceased to be a serious disciplinary problem, according to prison records.

"Even if he has made some changes, the board has to weigh this late change against a lengthy history of criminality and his refusal to obey the rules in prison and in the community," Brunker said.

Earlier this week, Parnes also asked the Utah Supreme Court to vacate Gardner's sentence and order a new sentencing hearing, or simply commute the sentence. It was unclear when the high court will rule.

If neither the court nor the board rules in Gardner's favor, Parnes said they will "reassess" and "might proceed to the U.S. Supreme Court."

At the end of Friday's hearing, Tami Stewart said she'll live with either outcome. He father, bailiff George "Nick" Kirk, suffered chronic health problems after Gardner shot him at the court in 1985.

"I do feel sorry for him," Stewart said. "But I'm just afraid if they do put him over to the life sentence, somebody else will get hurt."

Utah law allowed Gardner to choose execution by firing squad rather than lethal injection because he was sentenced before 2004, when lethal injection became the state's default execution method.

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