SALT LAKE CITY – SALT LAKE CITY — A Utah death row inmate who specifically requested execution by firing squad now is appealing to the Supreme Court to stay the sentence, scheduled to be carried out on Friday.
This comes after a federal judge on Tuesday denied a request to postpone the execution while he pursues a civil rights lawsuit.
Ronnie Lee Gardner filed the lawsuit in U.S. District Court last week, challenging the commutation process of the Utah Board of Pardons and Parole. He contends the process is tainted and fraught with conflicts of interest, and asked for a stay to investigate it further.
But U.S. District Court Chief Judge Tena Campbell rejected the request, saying it seemed unlikely the lawsuit could succeed.
"I simply cannot grant, on the evidence before me, the motion for a stay," Campbell said.
Gardner attorney Andrew Parnes said he will appeal her decision to the 10th U.S. Circuit Court of Appeals in Denver.
"We will keep raising the issues to make sure he has a fair and full adjudication," Parnes said after the hearing. "That's been the problem all along."
Gardner is scrambling to block his execution after losing an appeal at the Utah Supreme Court and failing to persuade the state parole board to grant him clemency. Both rulings were issued Monday.
Parnes appealed the Utah Supreme Court's decision to the U.S. Supreme Court and is also seeking a stay from the U.S. Supreme Court.
Campbell did not dismiss Gardner's federal lawsuit.
"Obviously there are problems with that if a stay is not issued and Mr. Gardner is executed," Parnes said.
The suit contends the clemency hearing was "hopelessly biased" because lawyers who represent the board and the state prison all work for the Utah attorney general's office — the same entity that sought Gardner's death warrant and argued against a commuted sentence.
The attorney general's office disputes the conflict and said it is charged with representing all state agencies.
Assistant Attorney General David Wolf said the office established internal electronic firewalls in May to prevent any conflicts between attorneys working on different aspects of Gardner's case.
He said no "substantive" issues had been discussed by those attorneys.
"There is no conflict because what the AG's office did was entirely permissible," Wolf said.
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 murder charge in the shooting death of bartender Melvyn Otterstrom.
Burdell's family does not support the death penalty and asked the board to spare Gardner's life. Otterstrom's family — and that of a court bailiff wounded during the courthouse shooting — lobbied for the death sentence to be carried out.
In the appeal to the U.S. Supreme Court, Parnes is arguing that Gardner's constitutional rights will have been violated if he is executed before a state court hears mitigating evidence that could have swayed jurors toward a sentence of life in prison.
Utah Assistant Attorney General Thomas Brunker said the state will oppose any further delays of the execution.
All things considered, Gardner is holding up pretty well, Parnes said Tuesday.
"He is handling this as well as can be expected. ... He's in good spirits given the situation," Parnes said.