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Hearing on firing squad sentence will go on

A federal judge denies Ronnie Lee Gardner's request for a temporary restraining order that would have blocked a hearing on his death sentence by firing squad.
/ Source: The Associated Press

Lawyers for a death row inmate scheduled for execution by a firing squad on June 18 failed Wednesday to persuade a federal judge to block a commutation hearing because the process is riddled with conflict.

The emergency hearing in U.S. District Court came hours after attorneys for Ronnie Lee Gardner argued an appeal of the case before the Utah Supreme Court — asking justices to vacate Gardner's death sentence.

It's unclear when the state's high court will rule.

But the federal court's Chief Judge Tena Campbell said Gardner failed to prove he could not get a "fair and impartial hearing" before Utah's Board of Pardons and Parole.

A two-day hearing before the board is set to begin on Thursday.

In court papers filed in U.S. District Court late Tuesday, attorney Andrew Parnes argued that the board's process was tainted because lawyers that represent the board work for the Utah attorney general's office — the same entity that sought Gardner's death warrant. Those state attorneys will also argue against the board commuting Gardner's death sentence to life in prison without the possibility of parole.

A third set of attorneys from the same office also advise the Utah Department of Corrections, Parnes said.

"We get a request from one attorney from the attorney general's office and then we get a ruling from another attorney in the attorney general's office," he told Campbell.

Parnes had asked Campbell to delay the commutation process and order the attorney general's office to resolve the conflict.

But Campbell said it appeared the attorney general's system that established a "firewall" between different branches of the office seemed sufficient.

Earlier Wednesday, Gardner's lawyers asked the Utah Supreme Court to vacate his death sentence and send the case back to state court for a new sentencing hearing. They contend that mitigating evidence developed for Gardner's federal appeal should be heard in state court.

Gardner's attorneys said the court also could reduce Gardner's sentence to life in prison.

State attorneys argue Gardner's appeal has come too late.

Gardner, 49, was convicted of capital murder and sentenced to death for the 1985 fatal shooting of Michael Burdell during a botched escape attempt at the old Salt Lake City courthouse.

He chose a five-man firing squad over lethal injection as the method of execution.