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Salt Lake attorney argues incompetence

He asks judge to remove him from convicted killer's death-row appeal

Defense attorney Mark Moffat, left, makes way for death-row inmate Douglas Stewart Carter as he enters court Monday.
Defense attorney Mark Moffat, left, makes way for death-row inmate Douglas Stewart Carter as he enters court Monday.
Al Hartmann, Associated Press Pool

PROVO — With eloquent and well-spoken arguments, a Salt Lake attorney argued Tuesday that he is incompetent to defend a man on death row.

Mark Moffat, who represents convicted killer Douglas Stewart Carter, is asking, even begging, to be allowed off the case.

"I submit to the court that I have absolutely no formal post-conviction training of any kind," Moffat told 4th District Judge Lynn Davis. "I am not qualified to do this work. I do not understand, nor do I have the training in, complex procedural rules that come into play in capital cases in state post-conviction (hearings)."

Carter, 52, was convicted and sentenced in 1985 for the murder of 57-year-old Eva Olesen, the aunt of a former Provo police chief.

Carter has appealed his case to state and federal courts numerous times and has been denied nearly as often. He's back in 4th District Court for a second post-conviction relief hearing, asking that his death sentence be reconsidered.

Carter sat handcuffed at a desk and flanked by three guards from the prison as he listened to Moffat lambaste himself.

"When claims are not effectively raised, and when not raised at the right time and in the right way, people get put to death," Moffat said. "I can't live with that, judge. I want somebody involved in the case who has the time and resources available to do it."

To that, Davis said: "Though you claim expertise, incompetence, and not being trained, you're the most articulate and eloquent incompetent attorney I've ever had before me."

"Thank you," Moffat said, "but that is no substitute for what needs to be done in this case."

Prosecutors argued that these concerns should have been raised months earlier and that allowing the attorneys, who knowingly took the case, to withdraw would delay the case even more.

"At this point, there is strong interest in the finality of this case," assistant Utah Attorney General Thomas Brunker said. "Delay will be the result if the court grants the resolution."

Olesen's son, Gary, said he is frustrated with the continual delays and a justice system that has protected his mother's convicted killer for so long.

"Had (Carter) been a guest, he would have had a pleasant visit with a lovely woman, who would have (talked to him) about her nearly born granddaughter," Gary Olesen read from a statement.

That granddaughter, now 23, sat weeping on the front row, next to her husband.

"For nearly 23 years our family has been trying to put this event to rest, while over the years our tax dollars have been paid to feed (and house Carter)," Gary Olesen read, his voice getting louder.

"What lawyer did she have? What appeals did she have, she, an innocent victim?" he continued. "(Carter) took it upon himself to be a judge, jury and executioner to someone who committed no crime. When will justice be served?"

Davis said he would rule within 60 days about whether the attorneys can be dismissed. "It is challenging to say that someone else is going to step in and pick up the pieces and we'll walk on," Davis told Moffat. "I don't think that is an accurate view of what would occur."

Brunker agreed it would be very difficult to get another attorney, and that if one can't be found, requested that Carter defend himself.

"Before Carter filed this successive state post-conviction petition, he had access to state process for one guilt trial, two penalty hearings, two direct appeals, one prior post-conviction action and one prior post-conviction appeal," Brunker said. "In those seven proceedings, he was represented by one counsel that he chose and seven that were appointed to represent him at state expense."

Expenses are another reason Moffat and co-counsel Leo Griffard are asking to be released form the case. "Our firm has spent 505 hours working on Mr. Carter's case," Moffat said. "If those hours were billed at our normal hourly rate, we would have earned $82,429."

There are options to collect some money from the state, but not $82,000.

The defense centers around the sentencing phase because Carter already confessed to murdering Olesen by stabbing her 10 times and shooting her in the head during a robbery, Brunker said.

Carter's case began with a jury trial in which he was found guilty and sentenced to die. On an appeal, the Utah Supreme Court affirmed the guilt, but sent the case back to another jury for a sentence other than the death penalty.

When that jury also decided on the death penalty, the Utah Supreme Court upheld that decision.

Carter then essentially "sued" the state, asking it to overturn his death penalty, but lost his first post-conviction relief hearing. The Utah Supreme Court also refused to overturn that decision, so he petitioned Utah's federal court to review his conviction and death sentence.

That court said it wouldn't hear a case if all the state-level proceedings hadn't been exhausted, which is what brought Carter back to another post-conviction relief hearing in Provo's 4th District.