SALT LAKE CITY — Just days after a judge signed an execution warrant in Ronnie Lee Gardner's name, his attorneys have filed a motion asking the judge to stay the execution pending a new appeal.
Prosecutors say they will fight the request.
In the motion filed late Tuesday, Gardner's attorneys argue there is a fundamental right to appeal 3rd District Judge Robin Reese's decision to sign the warrant, to the Utah Supreme Court.
"Denying defendant a stay while he pursues his appeal would essentially violate his constitutional rights to pursue an appeal," the motion states.
But defense attorneys say the latest court action is not a last-ditch attempt to stay the man's execution.
"Defendant's motion for a stay is made to preserve his right to appeal the court's order, and not to simply delay his execution."
Gardner's attorney Andrew Parnes said he has requested a hearing on the motion in state court and is "trying to do everything in an expeditious fashion." He said he will file a docketing motion to the Utah Supreme Court shortly.
Reese signed an execution warrant for Gardner on Friday. The death-row inmate asked to die by firing squad, and an execution date was set for June 18.
The judge based his decision on the fact that, with no motions or appeals pending, there was no legal reason not to sign the warrant. As Gardner has also been appealing his death sentence for 25 years at every level possible, Reese also said he didn't want to "second guess" the other courts that have upheld Gardner's sentence.
Parnes said immediately after Friday's hearing that they planned to appeal, believing Gardner's due process rights have been violated because of the length of the appeals process and because Gardner was not given funding to present mitigating evidence when he was sentenced. Parnes believes such evidence would have convinced at least one juror to give Gardner a life sentence.
Parnes told the Deseret News Wednesday that the appeal will address "what we believe are legal reasons the judge should not have issued a warrant of execution." He said the basis of the appeals are basically the same ones raised before Reese, but he believes Reese wasn't able to "get to the merits" of the arguments during Friday's hearing.
State prosecutors made it clear to the judge at that hearing that without any pending appeals or petitions, there was no legal justification for a delay in signing the warrant.
With this notice of appeal, a stay of the death sentence is required under state law, his attorneys argue in the latest motion.
"Because the defendant has the right to appeal the court's ruling to the Utah Supreme Court, (the law) not only vests this court with the power to stay his execution, but implies that the stay is automatic and required."
Assistant Attorney General Tom Brunker said his office will "oppose all requests for a stay unless something occurs where the law requires it" — and Brunker said he's not sure how the latest appeal will play out.
"This is not something that is in the regular course of proceedings, and we will be opposing this request," he said.
Attorneys for Gardner noted in the motion that they filed the notice of appeal almost immediately, saying Gardner will take "every step necessary to expedite his appeal." But they reiterated their belief that "a stay is necessary to ensure that his fundamental rights are protected when his life is on the line."
Parnes said that while they're "not trying to delay" the execution, he doubts an appeal to the Utah Supreme Court will wrap up before the scheduled June 18 execution date.
"It's very rare that an appeal is resolved in a month and a half, and that's the reason for the stay," he said. "We think these are significant issues the Supreme Court will have an opportunity to review, but we're not trying to put this off for long period of time."
Gardner was sentenced to death in 1985 for the shooting death of attorney Michael Burdell, who Gardner murdered in a botched escape attempt from the old county courthouse in Salt Lake. He also shot and wounded court bailiff George "Nick" Kirk. Gardner, who was in court on a separate murder charge, was given a gun by a girlfriend.
Because Gardner requested death by firing squad at the time of his sentencing, he had the option to choose between lethal injection and firing squad when the warrant was signed, despite a Utah law that eliminated the firing squad option in 2004.
e-mail: emorgan@desnews.com