Condemned Utah killer could face firing squad

[April 23, 2010]  SALT LAKE CITY (AP) -- A condemned killer appears headed for a date with death in Utah that could see him sit before a firing squad -- a development that would likely re-ignite protests over an antiquated, Old West-style of justice.

At a hearing Friday, 3rd District Judge Robin Reese will consider whether to sign a warrant of execution for Ronnie Lee Gardner, who killed a man during a failed escape 25 years ago.

Under state law Gardner, 49, would be allowed to decide whether he would be killed by lethal injection or be shot by a five-man team of executioners firing from a set of matched rifles, a rarely used relic that harkens back to Utah's territorial history.

Of the 35 states with the death penalty on the books, Utah is the only one to use the firing squad as a method of execution since the U.S. Supreme Court reinstated capital punishment in 1976.

Two men have died in a hail of bullets since that decision: Gary Gilmore, on Jan. 17, 1977 -- after famously uttering the last words, "Let's do it" -- and John Albert Taylor on Jan. 26, 1996.

Oklahoma is the only other state that considers a firing squad an acceptable option, but by law would only use it if lethal injection was deemed unconstitutional. The state has never used the method.

Utah's death row inmates were for decades allowed to choose how they wanted to die. State lawmakers removed that choice in 2004 and made lethal injection the default method, though inmates sentenced before then still have a choice.

The repeal of the firing squad wasn't tied to any discomfort with the method itself. Rather, state lawmakers disliked the heaps of negative media attention that firing squads focused on the state, said Rep. Sheryl Allen, R-Bountiful, who twice carried legislation to change the law.

In 1996, more than 150 media outlets descended on Utah to cover Taylor's execution, painting the firing squad as an "Old West" style of justice that allows killers to go out in a blaze of glory that embarrasses the state.

"I was just hoping to end that focus," said Allen, adding that she's displeased with the prospect of another firing squad execution. "I fear that the proper attention will not be paid to the victims of the crime and the atrocity of the crime."

Still, lawmakers did not retroactively ban the firing squad out of fear that it would give condemned inmates a new avenue of appeal, she said.

Gardner is one of at least four of 10 men on Utah's death row who have said they wanted to die by firing squad. However, a warrant for his execution from the 1990s lists his preference as lethal injection, so it's unclear which method he'll choose.

Defense attorneys, who declined comment ahead of Friday's hearing, have asked Reese not to sign the warrant and convert the sentence to life in prison without the possibility of parole. They say killing Gardner after 25 years on death row amounts to cruel and unusual punishment.

Assistant Utah Attorney General Tom Brunker disagrees and said that because Gardner has exhausted all avenues of appeal, he should be put to death.

If the warrant is signed, the Department of Corrections would hold the execution on a date that is more than 30 days, but less than 60 days, from the judge's decision.

A stay of the execution could still be sought. Gardner could also ask the state's Board of Pardons and Parole to commute his sentence.

Lydia Kalish, Amnesty International's death penalty abolition coordinator for Utah said her organization opposes the state's effort to see Gardner executed. But despite Utah's strong religious roots -- it's the home of The Church of Jesus Christ of Latter-day Saints -- most here support the use of the death penalty.

"I think in Utah, when it suits their purposes, they go back to the Old Testament and the 'eye for an eye' kind of thing," Kalish said. "These people may be the worst of the worst, but if the best we can do is repeat the same thing, it's so obviously wrong."

Gardner was convicted of the fatal shooting death of Utah attorney Michael J. Burdell during an escape attempt and shootout at the old Metropolitan Hall of Justice in downtown Salt Lake City on April 2, 1985.

Although he was handcuffed and surrounded by prison guards, a female acquaintance slipped Gardner a loaded, long-barreled .22-caliber handgun in the basement of the building just before the shooting. He shot Burdell in the head, wounded a court bailiff and was himself shot in the right shoulder before being captured on the courthouse lawn as he tried to flee.

Regardless of the method, Gardner's victim, would oppose any effort by the state to avenge his name by putting another person to death, said Rom Temu, a close friend of Burdell.

"Michael would not be happy at all. Michael would have fought against the death penalty, that's who he was," said Temu, 62, a Salt Lake City-area funeral director who knew Burdell through their membership in the Summum church.

A pacifist, who was drafted into the U.S. Army, Burdell served in Vietnam but had vowed he would never use a weapon on another person, Temu said. An electrical engineer, Burdell went to law school after Vietnam and was dedicated to helping those who couldn't afford to hire an attorney and gave free legal advice on a radio talk show.

"He was about as poor as you could possibly imagine," Temu said.

On the day of the shooting, Burdell was helping Summum's then-president Corky Ra secure legal custody of a church member with severe mental illness. Temu was a the hearing and ran down two flights of stairs to find Burdell when he heard shots had been fired inside the building.

Temu said he came face to face with Gardner and watched him shoot bailiff Nick Kirk. Gardner then chased into the stairwell after a fleeing Temu and Ra, yelling that they were to be his hostages, but never opening fire. They escaped, but Temu later went back to find Burdell lying alone on the floor of a records room.

"He wasn't breathing, so I gave him mouth to mouth resuscitation until finally some paramedics came," said Temu, who later learned Burdell had died instantly.

"I don't know what they are planning to do with Ronnie Lee Gardner ... that's a Utah thing," he said. "But as far as Michael is concerned, he already turned the other cheek, whatever brought the two of them together is done."

[Associated Press; By JENNIFER DOBNER]

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