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Is the death penalty dead in Utah?

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An inmate hangs his hands outside the bars at the  Utah State Prison  Wednesday, Feb. 6, 2013.

An inmate hangs his hands outside the bars at the Utah State Prison Wednesday, Feb. 6, 2013.

Jeffrey D. Allred, Deseret News

Utah imposes a very high burden to get a death sentence, and it’s much higher than what the federal Constitution requires. The state actually has a number of requirements for securing a death sentence that go beyond those laid out in the federal Constitution. – Assistant attorney general Tom Brunker

SALT LAKE CITY — It has been more than five years since anyone has been added to Utah's death row.

But that doesn't mean there's been a shortage of brutal murders that qualify as potential death penalty cases.

From Jan. 1, 2008, to Aug. 13, 2013, an analysis of data from the Utah state courts shows that 66 aggravated murder charges were filed against 54 people statewide, meaning prosecutors believed the elements of the crimes could qualify them as potential capital murder cases. But prosecutors took the next step — filing a notice of intent to seek the death penalty — in only seven of those cases, a search of court records shows.

"We may file several aggravated murder cases a year, but that does not mean they're capital cases," veteran Salt Lake County deputy district attorney Robert Stott said.

Salt Lake County District Attorney Sim Gill said notice of intent to seek the death penalty has only been filed by his office three or four times since 1992. Since Gill took the D.A. post in 2010, he said he has yet to file a notice of intent to seek the death penalty in a case.

Polls show that a large majority of Utahns support the use of the death penalty — more so than the rest of the country. Yet in many cases, Utah prosecutors are not pursuing the ultimate punishment.

Is the death penalty dead in Utah?

Gill, who runs the largest state prosecution office in the state, said there are current cases where the death penalty is still being considered, but he declined to comment specifically on which cases those might be.

Gill and Stott pulled data from their office that showed that between 1986 and 2011, 613 people were charged with murder in Salt Lake County. Of that number, 73 — or 12 percent — were charged with aggravated murder.

Of those 73 cases, 4.3 percent resulted in a death sentence.

"So compared to all the murder cases filed during this (25-year) time … less than one half of 1 percent of all the murder cases resulted in the death penalty," Gill said.

Six of those 54 aggravated murder cases filed statewide in the past five-plus years resulted in the next harshest sentence — life without parole. One ended in suicide. Prosecutors still have the option to file notice that they plan to seek the death penalty in 25 cases.

Experts offer several reasons for not pursuing a death penalty, including the relatively new option of sentencing a person to prison without any chance of parole; the extremely long, expensive and complicated appeals process for anyone sentenced to death; and desires of some victims' families to see an end to a criminal case for closure.

But what kind of murder case today would outweigh those considerations? Consider the following killings that were originally charged as potential capital murder cases but were ultimately not pursued as such:

• Esar Met is accused of raping a 9-year-old girl who was looking for someone to play with. Police say he strangled his neighbor and beat her to death in his apartment, just 50 yards away from her own home. When officers found her body, her hand was still clutching some of his hairs.

Gill announced in February he would not seek the death penalty against Met, partly because the case had been languishing due to language barriers and other issues and he wanted to "move this case along."

• Curtis Allgier, a white supremacist prison inmate, shot and murdered police officer Stephen Anderson at University Hospital to escape custody. He then used Anderson's weapon to hijack a vehicle and lead police on a chase before pointing a gun at the head of a restaurant employee during a standoff.

Allgier avoided a possible death penalty as part of a plea deal and was sentenced in December to life in prison without parole. Gill said the Anderson family's desire to move on played a large part in the decision.

• Paul David Vara savagely raped and murdered a woman in a Sugar House park, mutilating her body. He was spared the death penalty despite committing one of the most heinous crimes some law enforcement officers said they'd ever seen. He was also convicted of raping another woman who suffered extensive injuries that required surgery.

He was sentenced in 2011 to life without parole, despite Judge Mark Kouris saying: "It's still not enough punishment for what you've done. … I don't know how a human being can do what you actually did."

• Matthew John Breck was charged and convicted in 2011, 13 years after sexually abusing, beating and stabbing a 10-year-old neighbor girl to death on her own front porch. Police believe Anna Palmer played with friends near Breck's house. He was sentenced to life without parole as part of a plea bargain.

• Damien Candland brutally beat, raped and strangled his aunt, then dumped her body in Hobble Creek Canyon after she testified against him in a theft case. He avoided the death penalty in 2011 when the Utah County Attorney's Office offered him a plea deal for the "cold-blooded" crime. He was sentenced to life without parole.

Those crimes are similar to those committed by five of the eight inmates currently on Utah's death row. Two of the eight facing execution killed two people in the same episode. The other is a convicted killer who murdered a fellow prison inmate in a brutal stabbing caught on tape.

Death penalty 'tool'

Gill said prosecutors should struggle over whether to push for the death penalty. He said it is a necessary "tool" but told the Deseret News it must be used sparingly and only after much time, thought and consideration.

"It really has to be that unique case," he said. "It has to be that case that is not just merely shocking the conscience of our community, but it is an amalgamation of a whole host of issues that are contributing to say that this person really is deserving of this ultimate punishment we have. And that's a very specific, fact-driven, case-by-case and very deliberative and deliberated process."

It shouldn't be used too often and lose its potency, he said. It also shouldn't be used "for the purpose of bluffing."

"What you want is a prosecutor who struggles with the death penalty, because it's a decision to take somebody's life," Gill said. "It shouldn't be something we do arbitrarily. It's not something that we should be cavalier about. It is not something we should reach to with indiscretion.

"That is not to say that there may not be circumstances where that tool needs to be used, but … this is something we take extremely seriously and we want to do it in the right circumstances, and if we're going to do it, then we intend on following through with it."

Since 2007, aggravated murder cases aren't officially deemed to be capital cases until prosecutors file notice in court that they plan to seek the death penalty, Stott said. Prosecutors have 60 days after a defendant is arraigned in court to file notice. An arraignment is typically held months after charges are filed, after a defendant has either had a preliminary hearing on the evidence against him or waives his right to that hearing.

"There's some rationale for that (extra time)," Gill said, "because as the preliminary information comes in and you gather more information, then you are more informed and theoretically in a position to make that (decision)."

Weber County prosecutors initially indicated they planned to pursue the death penalty against Matthew David Stewart, who shot and killed officer Jared Francom and also shot five other officers serving a warrant at his Ogden home last year. The case was closed, however, after Stewart committed suicide in his Weber County Jail cell in May.

Whether prosecutors would have filed an official notice to pursue the death penalty isn't known. Weber County Attorney Dee Smith declined to respond to calls for comment about the case.

The murder of a police officer doesn't always mean prosecutors will seek a death penalty, as evidenced by the Allgier case. The shooting death of Draper Police Sgt. Derek Johnson earlier this month led to a charge of aggravated murder against Timothy Troy Walker.

Gill said the death penalty is "definitely on the table" in the case, but he would not say whether he was leaning one way or another. It will likely be months before his office officially declares its intentions about whether to pursue capital punishment against Walker.

Difficult sentence

Utah is a state that is supportive of handing down the ultimate punishment. Results from a Deseret News-KSL poll conducted by Dan Jones & Associates in 2010 showed that 79 percent of Utahns either strongly or somewhat favor the death penalty. The number is higher than that of the nation; a Gallup poll released in January showed 63 percent of Americans supported the death penalty.

Utah has executed seven people in the 37 years since the U.S. Supreme Court upheld a new series of death penalty statues in 1976. But executions are also something of a rarity nationwide, as a U.S. Department of Justice report issued in July showed that 43 inmates were executed nationwide in both 2011 and 2012, with 3,082 individuals who had been sentenced to death by the end of 2011.

But public support for the death penalty doesn't mean simplicity in death penalty sentences.

"Utah imposes a very high burden to get a death sentence, and it's much higher than what the federal Constitution requires," assistant attorney general Tom Brunker, who heads the capital appeals division, said. "The state actually has a number of requirements for securing a death sentence that go beyond those laid out in the federal Constitution."

For one thing, intent to kill has to be proved in every case except those involving severe child abuse. Once an individual has been found guilty, there is a separate sentencing stage in which it must be shown that the aggravating factors outweigh the mitigating factors — and that they do so beyond a reasonable doubt.

"Even after the sentencer finds that the aggravators outweigh the mitigators, then the sentencer has to make a second finding that death is appropriate under the circumstance … and that finding also has to be made beyond a reasonable doubt," Brunker said. "And if it's a jury, the jury has to be unanimous on both of those. … So Utah has set an extremely high threshold for a death sentence."

For Brunker, who is responsible for handling the myriad appeals of those on death row, that elaborate process provides a sense of confidence.

"I think it's all right for society to say certain crimes provided by certain people warrant the ultimate sanction," Brunker said. "And I think one of the advantages to Utah having such a high bar is I don't really question whether any of the death sentences that we have is inappropriate."

But L. Kay Gillespie, an expert on the death penalty and a longtime criminal justice professor at Weber State University before recently retiring, believes the death penalty has lost much of its effectiveness. The financial costs associated with it and the extremely long appeals process has weakened its original intent as a deterrent to crime, he said.

"It just seems to me we're at the point where we're not going to be able to afford the death penalty much longer anyway with the expense involved. So whether it works or not is pretty mute," Gillespie said. "For it to be effective, some would argue it has to be certain and timely, and we're not doing that, either. We don't seem to be applying it in a very good way."

Family input

Prosecutors have a host of things to consider when they make the decision whether to pursue the death penalty in an aggravated murder case. There is the amount of time it takes to secure a conviction and death sentence followed by the years of appeals that have to make their way through both the state and federal court systems.

The most important, though, may be the people who have already lost the most.

"In all of our cases we're very concerned about what the victims want, but in these capital murder cases we work very extensively with the family of the victim to make sure they understand the process, they understand what they'll have to go through, they understand what's going to happen," Stott said.

"We take great consideration in what they want. They have a big stake in it, and all of our decisions generally always pass through the victim's family and then they have a major say in what occurs," he said.

Gill said the victim's family will be the ones who will have to continue on after the prosecutors get a death sentence and the appeals process has begun, which generally takes decades. They will be the ones who have to attend hearings and endure media reports as the years pass.

"The question is, what is the measure of justice that we're trying to achieve and sometimes I think a deliberated process is … you start with the victims," Gill said. "It's not just simply getting this in place, because you're also sentencing the victims to live through this process over the many years that this has to unfold.

"Sometimes we forget the emotional and psychological toll that this sometimes takes on a victim's family."

In many cases, the family does not want a death sentence. A number of capital murder cases have resulted in a life without parole sentence at least partially at the request of families who wanted to move past the crime and trial.

Gill said it's possible, however, that prosecutors will seek a death penalty despite a family's wishes.

"I can honestly say that I could think of scenarios where that might happen, because at the end of the day in a criminal prosecution, the victim has an incredible role to play but they do not control the litigation or the decision — the elected (district attorneys and judges) is responsible," he said.

Stott gave the example of Ronnie Lee Gardner, who shot and killed a defense attorney in open court and wounded a court bailiff in an escape attempt. Gardner was in court stemming from prior murder charges.

"The defense was able to come up with some evidence that the victim himself told people that if he were ever killed, he would not want the perpetrator to get the death penalty," Stott said. "But we went ahead with it anyway because of the totality of the circumstances, his background and the prior crimes and the fact that he was actually convicted of a murder and was in prison when he committed the new escape and murder."

Anderson family

The case could be made that Allgier, who killed Anderson and attempted to escape while already in custody, was similar to Gardner. But while the death penalty was being pursued against Allgier, Anderson's family wasn't necessarily in favor of the ultimate penalty.

"We were never pushing for a specific outcome and we never went in there with a preconceived idea about what should happen," said Mark Anderson, Stephen Anderson's cousin who also acts as the family's spokesman.

It's important for people to know that these cases are never as black and white as they might seem.

"Unless you're part of the equation, you have no perspective of this," he said. "The further you're removed from the situation the easier it is to make a judgment."

He said the five years of hearings without a trial and the idea of more years of appeals were frustrating for the family. Those with the district attorney's office worked with them and kept them informed.

Ultimately, having Allgier plead and receive a sentence of life without parole was the best outcome for the family, Mark Anderson said. They can be assured Allgier will never again be released from prison and won't have to have their wounds reopened in future court hearings.

"There's no question that we believe, in this particular case, that justice was served," he said. "When you have a crime that's committed, you need to protect two entities. You need to protect the victim and the public in general, and in both of those situations justice was satisfied."

He said Stephen Anderson was kind and forgiving and those traits guided questions about what he would do if he had been in the shoes of his surviving family. His wife and children still miss him but are moving forward.

"They've grown," Mark Anderson said. "They've found that the road after tragedy can still be as wonderful as it was before. You just have to adapt and change sometimes and that's what they've done and they've done very well."

Based on the research he's done, Gillespie said most families of victims who want to move on "have found it's much easier to forgive and get on with their lives rather than looking for some sort of revenge or vengeance or something which they don't seem to find, particularly in the way we apply the death penalty.

"Whether life without parole appeases people or not, the research I've done has suggested that the victims, for a large part, would just as soon forgive and get on with it, and that's how they bring closure to themselves," he said.

Appropriate penalty

But while years of appeals are difficult for victims' families, many still believe the death penalty is appropriate punishment.

“Our family feels the death penalty actually represents a reverence for the sanctity of the lives of the innocent,” Barbara Noriega, whose mother and sister were killed in their Oakley cabin in 1990, told lawmakers last year.

She said, however, that waiting so many years for death row inmate Von Lester Taylor's execution is an injustice and travesty for her and her relatives.

Craig Watson, whose cousin Melvyn Otterstrom was killed by Gardner in 1984, witnessed Gardner's firing squad death in 2010 and said it gave him some peace.

"I don't know if the proper word is closure, but I viewed the execution and what I can tell you is that Mr. Gardner was treated a lot more humanely than the way he killed my cousin," Watson told legislators in November. "I can also tell you that when it was over, there was a feeling of peace that comes over you. You'd have to be involved to understand it."

No one has been executed in Utah since Gardner was put to death.

Life without parole

In 1992, the Utah Legislature gave judges and juries an option of sentencing killers to life in prison without parole. Stott and Gill both said that sentence has provided an effective alternative to the death penalty.

Stott said that both in Utah and across the nation, there's been a major reduction in capital murder trials and that can be attributed to having a life without parole option.

"What we're finding is that when we get to these cases, most of the people involved find that the life without possibility of parole penalty is preferred," Stott said. "The victims are feeling that way, the prosecutors are feeling that way, the police are feeling that way. Why? Because we eliminate all the problems we've been talking about that occur even if we do get the death penalty.

"We ensure that defendant will be in prison for the rest of his life, and that meets the need of the great majority of these cases."

Gill said that the sentence still sends a powerful message.

"People sometimes don't fully appreciate (it)," he said. "Let's just slow down and conceptually try and get our brains around the idea of life without the possibility of parole. What does that mean? … That is, that person is never coming out — ever. The world has shrunk itself down to the size of that cell. That is the universe there."

Email: emorgan@deseretnews.com, Twitter: DNewsCrimeTeam