SALT LAKE CITY — In what attorneys for death row inmate Troy Kell call his "best chance" at appeal, they petitioned the Utah Supreme Court Monday arguing that the man had ineffective attorneys during his last appeal.
"(Kell's) counsel did not do anything," attorney Megan Moriarty asserted.
But in the mind of assistant attorney general Thomas Brunker, it is this simple: 17 years ago, Kell, already serving a life sentence, stabbed and killed fellow inmate Lonnie Blackmon — and it was caught on videotape.
Add to that an admission from Kell, a post-conviction relief appeal that has already been denied and the fact that there is no statutory requirement for effective counsel on appeal and the door on appeals in Kell's state case should be shut.
"To say (Kell's prior attorneys) investigated nothing and did nothing is wrong," Brunker said, saying the fact that they didn't add anything in subsequent filings may simply mean they investigated and didn't find anything.
Kell was sentenced to die in connection with the slaying of Blackmon, who Kell stabbed 67 times, including nine times in the eye. At the time, he was already serving a life sentence for a murder committed in Nevada. He was in Utah as part of a prison exchange program and was being housed in Gunnison at the time of Blackmon's murder.
Moriarty said "just because this isn't an issue of actual innocence" doesn't mean Kell doesn't have a right to review. Because the attorneys that handled his last appeal didn't investigate as many as 106 "red flags" in the case, there should be a new post-conviction appeal to review the man's sentence.
"Everything was faulty because the petition (the attorneys) filed was deficient on its face," Moriarty said, pointing to appeals documents she said did nothing but repeat issues brought up in Kell's first, direct appeal. "The record speaks for itself in this case."
Utah Supreme Court Justice Jill Parrish asked, though, whether an appeal and potential resentence would necessarily make a difference to a jury given the way Blackmon was killed.
"(Kell) was already in prison on a sentence of life without parole when he committed this kind of murder ... sentencing again to that would be meaningless. The only option was death," Parrish said.
Brunker said after the hearing that a key piece of evidence showed what Kell's attitude was. Apparently, a prison guard said Kell threatened them, saying he was already serving a life without parole sentence and had nothing left to lose.
"(Kell) is a very dangerous person and (death) was the only reasonable sentence that could be imposed," Brunker said.
Kell also has an appeal pending in federal court that has been stayed until the outcome of the state case is decided.
"Nobody has ever looked at and investigated his case," she said. "This is his last chance to fully understand the issues that happened in his case."