Jessica Black quietly cried in the crowd of a packed committee hearing on Monday as lawmakers heard arguments about whether the state should do away with its death penalty.
Black is the mother of Elizabeth “Lizzy” Shelley, a 5-year-old Utah girl who was raped and murdered by her uncle in 2019. For the crime, Alexander William Whipple was sentenced to serve life in prison without the possibility of parole, after he disclosed where her body was in exchange for prosecutors agreeing not to seek the death penalty. Police found Lizzy’s remains a half block away from her home, covered by dirt, sticks and other debris, bringing a five-day search to an end.
When it was her time to talk, Black struggled to speak through her tears.
“There are monsters in the world that should never be out of prison,” she said. “Having the death penalty allowed us to find our daughter and put the monster in prison for the rest of his life.”
The effort to repeal and replace Utah’s death penalty faltered at its first legislative hurdle on Monday following nearly three hours of emotional, tearful and at times brutally graphic testimony.
The bill, HB147, has hit a dead end. It failed to advance out of the House Law Enforcement and Criminal Justice Committee after a motion to forward it to the full House of Representatives was thwarted on a narrow 5-6 vote.
The split vote came after victims of murdered family members from both sides of the debate lined up to give heartfelt remarks about why they did or didn’t support keeping Utah’s death penalty in place.
‘Fix the death penalty’
Among those who spoke in favor of HB147 was Sharon Wright Weeks, the sister and aunt of Ron Lafferty’s victims, who helped propel the bill before the 2022 Utah Legislature with her belief that the death penalty is a false promise of justice — how even though she desperately wanted Lafferty to die by execution, over 30 years of appeals continued to “re-traumatize” her and her family until he eventually died of natural causes at the age of 78.
But there was also Lizzy’s grandfather, Norman Black.
“The things that he did to my granddaughter were unspeakable. They were heinous. They were awful. They were absolute evil,” Norman Black said. “Having that death penalty on the table was instrumental in us finding her body. It spared us from having a prolonged trial and therefore a prolonged anguish that we didn’t have to go through that some other of these victims have.”
“Fix the death penalty if you have to,” Norman Black urged lawmakers. Instead of just “throwing away the death penalty, perhaps you ought to look at ways to fix it.”
Though death penalty detractors warned lawmakers efforts to shorten death sentence appeals processes would result in litigation and be overturned by the U.S. Supreme Court, the argument that repealing the death penalty wasn’t the answer resonated most with a majority of lawmakers on the House committee.
As did the gut-wrenching grief of murder victims’ family members and the gruesome details of some of Utah’s most horrific crimes.
Family members of Eva Olesen, who in 1985 was stabbed 10 times then shot in the back of her head at point-blank range through a pillow. The family of Beth Potts and her daughter Kaye Tiede, who were shot and killed in 1990. The family of Maurine Hunsaker, who in 1986 was kidnapped and tied to a tree before her throat was slashed. The family of Claudia Benn, whose throat was slashed and who was sexually assaulted with the same knife. The families of the young couple Riley Powell and Brelynne “Breezy” Otteson, whose bodies were dumped in a mine shaft.
They all pleaded with lawmakers not to take the death penalty off the table, arguing capital punishment acts as a deterrent to Utah’s most violent criminals while also expressing fear that removing it would open the door to more legal challenges to the men who have been convicted of those crimes.
Almost all of them currently sit on Utah’s death row, though Utah County Attorney David Leavitt has said he won’t seek the death penalty for Jerrod Baum, the man accused of killing Powell and Otteson. Leavitt made that announcement late last year while backing the effort to repeal and replace Utah’s capital punishment statute with a new sentence of 45 years to life.
Bill Powell, Riley Powell’s father, said the death penalty “was taken away from us by a certain person which I won’t name. But we need the death penalty to deter these things from happening.”
“The death penalty is broken,” he said, but argued Utah “has a lot of smart people. If they all put their heads together they ought to be able to figure out something to get this appeal process shortened and taken care of.”
Can Utah’s death penalty be fixed?
Rep. Jefferson Burton, R-Salem, asked that very question of retired First District Judge Kevin Allen, who spoke in favor of its repeal and replacement: “Why not fix it? Why throw it out?”
“I don’t think we can, given the current system that we have,” Allen said. “Fixing that would have to take place at a national level, not just a state level.”
Allen said the “constitutional provisions in place that are currently interpreted by the U.S. Supreme Court — and I don’t see those changing — require the state to pass this extraordinary burden to show that everything was done correctly as best they can.” That can take decades, he said.
“What deterrent does that send? I don’t think it sends any deterrent. All it does is victimize, once again, the true victims of these types of crimes,” Allen said. “It also costs the state millions of dollars.”
Allen, who presided over the Lizzy Shelley court case, said he was “absolutely convinced” police would have found the 5-year-old girl’s body in a matter of days without the help of her uncle. “And the suggestion that he reveal the body wasn’t his idea,” Allen noted. “It was a defense attorney.”
Allen joined the bill’s sponsor, Rep. Lowry Snow, R-Cedar City, as a leading presenter for the bill. Snow, a former prosecutor, laid out his arguments in three points: “No. 1, the death penalty is broken. No. 2, the death penalty unintentionally can cause more harm to victim (family) members. No. 3, maintaining the death penalty means we run the risk, in our state, of executing innocent people.”
Is anyone innocent on Utah’s death row?
Snow and Jenise Anderson, of the Rocky Mountain Innocence Project, pointed specifically to the case of Douglas Stewart Carter, who has sat on Utah’s death row for 35 years after being convicted of aggravated murder for stabbing and shooting a Provo grandmother, 57-year-old Eva Olesen, who was also the aunt of a former Provo police chief.
Carter, who is Black, was convicted and sentenced using testimony from star witnesses who his defense attorneys say were threatened, paid thousands of dollars and told to lie by the Provo Police Department in the 1980s. Almost three years ago, the Utah Supreme Court ordered that Carter receive a new evidence hearing in 4th District Court, pointing to “damning revelations” from those witnesses.
“Although no one has yet been exonerated from Utah’s death row, at least one death row case must be brought to your attention because we may very well have an innocent man on our death row,” Anderson said, pointing to the concerns in Carter’s case.
That evidence hearing took place in November. Late last month, Carter’s defense team submitted their written post-hearing brief to the court asking for either a new trial or new sentencing hearing.
The Utah Attorney General’s Office has until mid-March to file a response, but Andrew Peterson, the Utah Attorney General’s capital case coordinator, called the latest brief “highly one-sided” that left out “tremendous amounts of evidence that the judge heard.”
Peterson noted Carter “did confess under circumstances that the Utah Supreme Court said were constitutional.” While Carter has challenged that confession, he hasn’t recanted it, Peterson said. He also questioned why, over a decade ago, when Carter had the ability to test DNA in the case, he didn’t. Now that DNA isn’t available to test.
“They waited until nothing could be done about it. Why would they do that?” Anderson said. “Well I’ll tell you why. Because he knows that it’s his.”
Gary Olesen, Eva Olesen’s son, told lawmakers the bill to repeal the death penalty is “just another law to save the breath of violent criminals.”
“We have endured 36 years of heart wrenching appeals as we have watched the fancy footwork of defense lawyers delay justice,” Gary Olesen said.
The case against repeal that prevailed
In recent weeks, momentum has built against the repeal and replace legislation, even though it was spearheaded by two influential conservative lawmakers including Snow and Sen. Dan McCay, R-Riverton.
Two of the House’s top leaders, House Speaker Brad Wilson, R-Kaysville, and House Majority Leader Mike Schultz, said earlier this month they were personally opposed to rolling back Utah’s death penalty.
Schultz, a member of the House law enforcement committee, staked his position. Five more of his fellow Republican committee members sided with him.
Schultz made his point by reading painfully graphic details from the brutal 1988 murder of 28-year-old Southern Utah University student Gordon Ray Church. The committee’s chairman, Rep. Ryan Wilcox, eventually told Schultz to stop describing the violence against Church that led to his killing.
“I keep hearing over and over that the death penalty is broken in Utah. If that’s the case why don’t we spend the hundreds of thousands of dollars that has been spent on lobbyists and the millions of dollars that’s been spent around the nation trying to eradicate the death penalty, why don’t we spend that money trying to get the death penalty fixed?” Schulz said.
“The money that’s spent trying to abolish the death penalty in Utah should be put towards making it better.”
Weeks, in an interview with the Deseret News after the vote, said she didn’t walk away from the hearing disappointed or discouraged. Instead, she said she felt energized — and she’ll be watching for Schultz to follow up on the issue.
“I wanted to shake his hand and congratulate him on being the person that is going to fix the death penalty,” Weeks said. “Because it’s going to take somebody like him that can clearly see the challenges.”
Weeks, who has told the Deseret News before that she spent 25 years of her life trying to figure out how to fix the issue on the federal level to no avail, said Schultz will “find out” if it’s actually doable.
“That’s what it’s going to take,” she said. “I could tell he was passionate about it. And I haven’t seen that. I’m going to be watching him. I’m going to let him know that if he needs my assistance, my experience trapped inside of the system, to let me know.”
Weeks added: “I don’t know if it can be fixed. I don’t know. I mean, it’s such a daunting process. If they could fix it, I think they already would, honestly. But, nobody’s talked about fixing the death penalty, really.”
Now that three iterations of a death penalty repeal bill has failed on Utah’s Capitol Hill in the last six years, maybe now it’s time to shift gears, she said.
“I think people are paying attention, and that was my only hope.”