By P. SOLOMON BANDA
Associated Press Writer
DENVER (AP) - Evidence about sexual abuse and brain damage could have persuaded a jury to spare a man the death penalty for his conviction of killing an attorney in a Salt Lake City courthouse nearly a quarter century ago, the man's attorney said Monday.
Attorney Andrew Parnes told a three-judge panel of the 10th U.S. Circuit Court of Appeals that a doctor spoke with Ronnie Lee Gardner for only about an hour shortly before Gardner was sentenced to death in 1985.
Parnes said in oral and written arguments that jurors didn't hear about Gardner's "exceptionally deprived and abusive background," which included sexual abuse and an illness that may have damaged his brain.
Utah Assistant Attorney General Thomas Brunker argued the mental health evidence was a "double-edge sword" that would not persuade a jury to spare Gardner's life.
The panel did not say when it would rule.
Gardner, 48, was convicted of shooting and killing attorney Mike Burdell in 1985 when Gardner was in court facing charges in another fatal shooting. Burdell was in another room and was not involved in Gardner's case.
Authorities say Gardner's girlfriend smuggled a loaded gun into the courthouse, and he opened fire with it in a failed escape attempt. Gardner and a bailiff were wounded in the melee, and Burdell was shot twice before Gardner was captured on the courthouse lawn.
Gardner's attorneys have raised several issues on appeal, mainly that Gardner may not have meant to kill Burdell.
Parnes said the .22 caliber gun used in the slaying had a defective safety mechanism that made the gun prone to accidental firings. And before shooting Burdell in the head, Parnes said Gardner was "bloody, dazed and confused" after having been shot in the chest by a law enforcement officer's .38 caliber handgun.
Parnes said that taken together with Gardner's mental state and defective gun, Burdell's shooting was more likely a result of a man bursting out of an another room during the fray "than a conscious, deliberate decision to kill."
Judge Michael McConnell, a member of the appeals court panel, said during Monday's hearing that Parnes' explanation differed from what he'd learned about the shooting.
"He (Gardner) did stop, and he did seem quite calculated and under control," McConnell said.
Brunker later added: "Most of the witnesses reported that Mr. Gardner was giving commands. He took hostages. He discarded the murder weapon on demand."
Among other issues raised by Parnes was that Gardner's attorneys during the trial for Burdell's slaying were ineffective because they had witnessed the shooting. One attorney thought his brother had been slain in the melee and told jurors that he feared Gardner.
A lower court in April 2007 ruled that there was "overwhelming evidence" that Gardner intended to shoot Burdell in his escape.
U.S. District Judge Tena Campbell cited Gardner's request for a loaded gun and a witness testifying that Gardner aimed the gun, paused, then fired at Burdell.
During oral arguments, another panel member, Judge Neil Gorsuch, quizzed Brunker on why he thought the mental health evidence wouldn't affect the outcome.
"How do you say that doesn't affect blameworthiness?" Gorsuch asked Brunker. "Would it have made a difference to one juror? Why doesn't all that do exactly that?"
Brunker argued that judges should consider only whether Gardner would have gotten a more favorable outcome.
Asked why the mental health issue hadn't already been settled, Brunker told the judges that the defense attorneys didn't immediately have the opportunity to develop Gardner's mental health record. He said after the hearing that no doctor would initially take the case and the defense later ran out of money.
Gardner's escape attempt occurred when he was brought to a courthouse for a hearing on charges in the 1984 robbery and fatal shooting of Melvyn John Otterstrom at a Salt Lake City bar.
Gardner was sentenced to death for killing Burdell and five years to life for killing Otterstrom.
The last person executed in Utah was Joseph Mitchell Parsons, who died by lethal injection on Oct. 15, 1999. Utah has executed six men since the U.S. Supreme Court reinstated the death penalty in 1972.
Utah Attorney General Mark Shurtleff said his state effectively has no death penalty. A measure pending in Utah's Senate would change the state constitution and streamline the post-conviction appeals process, shortening the time convicted killers are on death row before being executed. It needs two-thirds approval to be placed on the 2010 ballot.
Of the 10 men on Utah's death row, nine have active appeals, including Gardner. About half of them committed their crimes and were convicted in the 1980s.
(Copyright 2009 by The Associated Press. All Rights Reserved.)
