A judge on Tuesday ordered a man who has been on death row in the Utah State Prison for about 40 years to be transferred to the Utah County Jail, noting that he is no longer considered guilty after his conviction and sentence were overturned.
Douglas Stewart Carter, 69, was convicted of the aggravated murder of Eva Olesen and sentenced to death in 1985. In May of this year, the Utah Supreme Court affirmed a district court decision from 4th District Judge Derek Pullan that his trial should be vacated and that the district court should hold a new trial.
They determined there were serious constitutional violations during the first trial, including suppressing evidence and witnesses who had been given more money than was disclosed to the court or Carter’s attorneys. The witnesses later reported they were pressured to lie in court.
Death penalty possibility confirmed
Eva Olesen’s husband found her body in her home in Provo on Feb. 27, 1985. She had her hands tied behind her back and her clothing removed from the waist down. She had been stabbed 10 times and shot in the back of the head.
Carter was convicted in 1985 of murder, a capital offense, and the jury found two aggravating factors — the murder occurred during the commission of aggravated burglary and in “an especially heinous, atrocious, cruel or exceptionally depraved manner.”
Utah County attorneys filed a notice last week that they do intend to seek the death penalty at the new trial.
“This case now stands in the position it was some 40 years ago — pending a trial for the aggravated murder of Eva Oleson,” prosecutors said in the notice.
It explained that the requirements for notice that prosecutors are seeking the death penalty which applied when Carter was charged would not require them to file this notice, but they decided to do so “in an abundance of caution.”
Over the last few months as attorneys have been chosen to represent Carter, the case has been treated as if the death penalty was being sought as the judge assigned attorneys who are certified to handle death penalty cases.
A different type of case
During Tuesday’s hearing, there was a moment that got more heated than is usual in court as attorneys talked over each other, leading Pullan to say, “Counsel, that’s enough.”
The dispute was over a motion from prosecutors to release exhibits to the Provo Police Department for more investigation. Assistant attorney general Erwin Petilos explained that the police would take them to the crime lab where they could redo the lab work with current science. He said the county could do this, and asked to clarify if the objection was about the Provo Police Department touching the evidence in the case.
Richard Gale, Carter’s attorney, confirmed that their reason for objecting to the motion was not wanting the Provo Police Department involved in the investigation at all. He said they would like investigations to go through a different law enforcement agency.
“They were found to have the misconduct in the past,” Gale said.
Petilos began questioning whether it mattered when the detective handling it would not have been there 40 years ago, and none of the people at the department would have been there 40 years ago. At that point, Carter’s attorney, Neal Hamilton, interjected to request that the conversation should be done by email to not bother others in the virtual courtroom.
After Hamilton interrupted Petilos, the judge made his comment putting an end to the conversation. Later, he instructed the attorneys to be aware that the court record in a death penalty case is important and they should speak respectfully and not speak over each other.
“As each of you know, death cases are different than any kind of litigation in the criminal justice system,” he said.
What’s next?
Pullan ruled that Carter should be moved to the jail “forthwith,” so he will likely be transferred to his new location soon.
Gale said he has spoken with the jail, and they will be able to accommodate Carter’s many legal documents, including giving him his own space, and conversations with his attorneys — something Carter asked about in an earlier hearing.
Hamilton said they filed a motion requesting another preliminary hearing — or asking the judge to again rule on whether there is enough evidence for the case to move to trial. Petilos had not yet read the motion but may contest the request. He expressed an understanding that although the verdict from the jury trial was overturned, the original preliminary hearing should stand.
Petilos also said he plans to file a motion requesting a DNA sample from Carter.
Each of the pending motions are scheduled to be considered in a hearing on Sept. 2. At that point, the judge could decide if the case should be scheduled for a preliminary hearing or a jury trial.