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In Utah, firing squad case raises questions, and some shrugs, about death penalty

Jurors have second thoughts about death sentence during time when Utah gave them no option for life without parole

Ronnie Lee Gardner, at a hearing in which his lawyers asked to have his death sentence commuted, in Draper, Utah, Thursday, June 10, 2010. Gardner's request was denied. Photo: AP Photo/Trent Nelson, Pool

Update | Friday, July 18 | 2:46 a.m. Gardner was executed by firing squad early Friday morning in Utah state prison.

Jury deliberations in the 1985 trial and sentencing of Ronnie Lee Gardner, a Utah man charged with the shooting death of a bystander during an escape attempt, were tense. There was virtually no doubt of Gardner’s guilt, and at least one of the jurors considered him a sociopath.

And yet, Pauline Davies held out. She locked herself in the bathroom repeatedly, both to stall for time and to cry. As Davies would later acknowledge, she was pregnant at the time, and may have been unusually emotional. But during deliberations, she was steadfast. “I can’t be responsible for a person’s death,” she told the rest of the jury, according to several members.

Davies’ fellow jurors argued that the facts of Gardner’s harsh upbringing and troubled psychological state — a lack of empathy and impulse control, a childhood of physical and sexual abuse — were not enough to spare his life, and perhaps even allow him back onto the street. At the time, life without parole was not an option in Utah.

“We told her, ‘OK, if you could come up with one mitigating circumstance, we’ll go with you,” Colleen Cline, one of the jurors in Gardner’s trial and sentencing, recalled in an interview. Davies could not. “We were trying to point out to her that there were not mitigating circumstances. And finally, she relented.”

Now, 25 years later, Davies has asked the courts to reconsider. Gardner is facing execution on Friday at midnight, and he has chosen to die by firing squad, which is legal in Utah for death row inmates sentenced before 2004, when the practice was outlawed. Gardner would be only the third man executed by firing squad since the death penalty was reinstated in 1977. All three cases have been in Utah.

Gardner’s lawyers have sought a last-minute stay of his execution in state and federal court, saying new mitigating evidence should warrant a commutation of his sentence to life in prison. As part of that case, Gardner’s attorneys submitted signed affidavits from four jurors in the trial who said they would have preferred to sentence Gardner to life without parole rather than death.

Davies was one of them.

“I agreed to vote for death because I just wanted to go home, and I just wanted it to be over,” Davies wrote in her affidavit, a copy of which was provided to Need to Know by Gardner’s attorneys. “If I were voting today I would not be swayed, and I would vote for life without parole.”

She added: “I felt I was coerced into voting for death.”

The Utah state parole board denied Gardner’s request, as did the state Supreme Court and a U.S. Circuit Court judge. Gardner’s attorneys have vowed to take his case to the U.S. Supreme Court. But a last-minute stay or commutation seems unlikely.

Cline, who also submitted an affidavit saying she would have voted for life in prison rather than death, expressed sympathy for Davies. She, too, has been haunted by the decision she made 25 years ago to condemn Gardner to death.

“My heart really goes out to her, because I know that it’s been a terrible thing,” Cline said. She recalled what one of Gardner’s attorneys told her when he came to her house, asking her to sign the affidavit. “He said, ‘I’ve been trying to put this behind me for 25 years.’ And I said, ‘Well, we all have.’”

‘Let the firing squads fire’

In 1984, Gardner escaped the custody of a prison guard at Salt Lake City’s University Hospital, stealing his wallet and gun. Days later, he left the items wrapped in a pair of socks in a nearby mailbox, along with a note: “Sorry. Here’s the gun and wallet taken from the guard at the hospital. I don’t want to hurt no one else. I just want to be free.”

Nonetheless, Gardner went on to commit two murders. First he killed a bartender. Then he wriggled free from the protection of guards during a court hearing, after stealing one of the guards’ guns, and shot to death an attorney standing nearby.

Gardner’s lawyers and a psychiatrist who interviewed him have argued that he lacks the basic ability to control his impulses, and that he has no capacity for empathy. A judge ruled several years ago that those circumstances would have been unlikely to change the outcome of Gardner’s sentencing hearing, and refused to commute his sentence on those grounds.

His case has attracted worldwide attention for his preferred method of execution, an anachronism to much of the world. Agence-France Press called it “a bloody throwback to Old West-style justice.”

The case has also prompted some degree of soul-searching among Utahns, especially those who oppose the death penalty. Some hope the oddity of this particular execution will inspire Utahns to reconsider their support for capital punishment.

“I’m so happy this is a firing squad,” Greg Hughes, a member of the Utah state legislature and a Republican who opposes the death penalty, said in an interview. “I wish it were a hanging in the town square, where women and children could see it, so that they understood what they’ve allowed, or what they’ve permitted their government to do.”

Hughes is one of a small but growing number of Mormons and other members of Protestant denominations who have had second thoughts about the death penalty, especially in Utah. The Catholic Church has long opposed capital punishment. But the Church of Latter Day Saints, a dominant force in Utah, changed its official position from support to one of neutrality several years ago.

Nonetheless, Utahns remain overwhelmingly in favor of capital punishment. A poll conducted by a local television station this week found that 79 percent of Utah residents support the death penalty, even amid the media fanfare surrounding Gardner’s case. “I am dismayed at how few people are shocked and appalled at this barbaric method of execution,” said Ralph Dellapiana, the director of Utahns for Alternatives to the Death Penalty and a criminal defense lawyer.

Dellapiana, who has been working with Gardner’s attorneys, said the death penalty was simply a part of Utah’s culture. “There is a not a bloodthirsty bunch of vengeful people here,” Dellapiana said. “They just believe people should die. They’re not offended at all by the process.”

Executions have become rarer in Utah since the death penalty was reinstated three decades ago. Those policy changes are due in part to laws that allow felons to be imprisoned for life without parole, providing an acceptable alternative to jurors who fear allowing murderers back onto the streets, as in the Gardner case.

And yet, some have taken Gardner’s case as an example of how the death penalty can be improved as a method of punishment and deterrence. One Utah state legislator has said he will introduce a bill in the next session to speed up death penalty cases, so that future death row inmates don’t wait 25 years to be executed. Accelerating the process, he said, would make it more of a deterrent to potential criminals.

Hughes acknowledged that the bill, known informally as the “rocket docket,” may well pass Utah’s state legislature without much of a fight. He feels that Utahns have  become inured to capital punishment, perhaps because of the surgical nature of the more common method.

“When we find ways to sanitize the death penalty, by lethal injection, because it doesn’t offend the senses too much — no. Offend the senses, because that’s what you’re doing, you’re killing someone,” Hughes said. “So let it be what it is. Let the firing squads fire, and know that that’s what you want your government to be able to do.”

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