This is an archived article that was published on sltrib.com in 2007, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The state of Utah wants to execute Ralph Leroy Menzies.
He kidnapped Maurine Hunsaker, a Kearns mother of three, from her night job in 1986, took her to Big Cottonwood Canyon and slit her throat.
But nearly 20 years after a judge put him on death row, Menzies has no date with the executioner.
No lawyer is both qualified and willing to represent Menzies in his effort to overturn his conviction. And without an attorney, the killer cannot be put to death.
Menzies' case is the first death-penalty appeal in Utah that has been put on hold for lack of a defense lawyer, but it might not be the last.
Though there are just nine inmates on Utah's death row, the state struggles to find attorneys to represent them. The situation is prolonging the already-complicated process of carrying out death sentences. And it is prolonging the grief of survivors who are expecting an execution to bring them justice and relief.
"It's ridiculous the ways things have been going on," says Gary Oleson, whose mother was murdered 22 years ago. "It's just been appeal after appeal, delay after delay."
'Critical errors': The latest delay for Douglas Stewart Carter, who killed Eva Oleson during a robbery in her Provo home, was argued earlier this month when his two attorneys asked to be let off his case.
Mark Moffat, of Salt Lake City, and Leo Griffard, of Boise, have not been paid a dime for hundreds of hours of work on Carter's behalf. Moffat also says he was never qualified to handle Carter's appeal in 4th District Court but reluctantly took the case because he feared the inmate would be left to fend for himself. In retrospect, that was a mistake, he says.
"Due to the involvement of unqualified counsel to date, there have no doubt been critical errors and omission in the pursuit of Mr. Carter's claims," Moffat wrote in his request to withdraw from the case.
The Utah Attorney General's Office is opposing the request, as well as a related motion that new lawyers be appointed for Carter. After the Oct. 2 hearing, 4th District Judge Lynn Davis took the matter under consideration.
Under court rules, one, sometimes two, attorneys must be assigned to each capital case, and the legal team must meet certain experience and education requirements. Also, the state has relatively few death penalty cases, the pool of qualified lawyers numbers fewer than 10, for appeals beyond the first appeal to the Utah Supreme Court.
Another problem is money: The Utah Division of Finance caps the total amount paid to defense attorneys in an appeal at $37,500. Lawyers, however, can easily clock 2,000 hours working on post-conviction relief proceedings and end up earning a fraction of their usual pay of $150 to $250 an hour.
In addition, that time is taken away from paying clients, a serious loss for small firms or solo attorneys trying to cover their overhead.
Attorneys have learned the hard way how a capital case can put them in financial peril, according to a brief by the Utah Association of Criminal Defense Lawyers.
Moffat says he put more than 500 hours of work into the Menzies case. Had these hours been spent on work for paying clients, his firm could have billed $82,000.
At this point, though, Moffat could collect only $10,000 from the state. Splitting the payment with Griffard would give him $9.88 an hour. The two men have said they will forgo the money if they are allowed to withdraw from the case.
Richard Mauro did a little better. For the 700 to 800 hours he worked on the case of death-row inmate Von Lester Taylor, the Salt Lake City attorney earned about $17 an hour, much less than the $150 an hour he billed regular clients at the time.
The situation is different in the federal courts. A newly created unit at the Federal Defender's Office in Salt Lake City now handles appeals that go to U.S. District Court. And if private attorneys have to be appointed to a case, the federal government pays them $163 an hour.
Thomas Brunker, an assistant Utah attorney general, says that before the state began providing money in 1997 for post-conviction proceedings, there was no problem getting lawyers because law firms would handle the cases for free. He acknowledges that funding could be a problem in certain cases but says most of the money complaints stem from "wasteful, redundant" appeals of issues that have already been resolved.
Executions on hold: Whatever the cause, the difficulty in finding lawyers for death-row inmates is slowing the pace of Utah capital cases, none of which has a pending execution date.
Condemned inmates in the United States typically spend more than a decade awaiting execution, according to the Death Penalty Information Center in Washington, D.C.
Texas, which carries out nearly half the executions in the nation, has the shortest waiting period, seven to 10 years. The average time in the other 37 states with capital punishment is about 15 years, and some prisoners stay on death row for more than 20 years, the center says.
Utah's current death-row inmates have been there between eight and 22 years.
Another factor adding to delays is mistakes by attorneys who had difficulty navigating complex death-penalty laws that lead to retrials or resentencings in two-thirds of the cases.
Carter first landed on death row in late 1985, the same year he committed his crime. While burglarizing the home of 57-year-old Eva Oleson, Carter stabbed her 10 times and shot her in the head, using a pillow to muffle the gunshot.
His original death sentence was reversed by the Utah Supreme Court in 1989, but a new jury in 1992 resentenced him to die. The high court has upheld that sentence.
Carter now is pursuing his second post-conviction appeal in 4th District Court, which his current attorneys say is close to forcing them out of business. Attorney Heidi Nestel, who represents the Oleson family, expressed her concerns to Judge Davis at the Oct. 2 hearing at which Carter's attorneys requested to be dismissed.
"How do you put a price on justice for the victims in this case?" she asked. "This case may come to a grinding halt if these two counsel are allowed to withdraw."
Menzies case stalled: The Utah Supreme Court upheld Menzies' conviction but reopened an appeal Dec. 15 because of his appeals attorney's "deplorable" representation. Menzies now has the opportunity to argue for a new trial or a new sentencing hearing, which could lead to his removal from death row.
But the lawyer who got his appeal reopened stepped down because of a conflict of interest and a long search has failed to find a new attorney.
More than a dozen attorneys in Utah, Idaho, Arizona and New Mexico have declined to take on the case. Mark Field, a staff attorney for the Utah Administrative Office of the Courts, says most cited monetary reasons for saying no.
Hunsaker's survivors are furious at the continuing delays.
"He was tried and convicted by the laws of the state and given the death penalty," says Betty Sudweeks, Hunsaker's mother. "The sentence should be carried out. It's frustrating the way he plays the system."
The situation is so frustrating to 3rd District Judge Stephen Roth that he is thinking about forcing a lawyer to represent Menzies. He recently asked state and defense attorneys for their opinions on whether he has that authority.
The state Attorney General's Office says nothing in state law directly permits an unwilling attorney to be compelled to take a case. But nothing in the law forbids it, either, because the lawyer has the right to challenge the adequacy of the pay, according to Brunker and assistant attorney general Erin Riley.
Brunker and Riley, who take no position on whether Roth could force a lawyer to represent Menzies, suggest that the attorney can litigate with the Division of Finance for more money, if needed.
On Friday, the state's attorneys said that they intended to seek a legislative amendment that would put the payment structure in law, rather than in administrative rules. Under the change, judges would have discretion to exceed funding limits if certain criteria were met.
Good pay = due process: Brunker disputes that Menzies and Carter are entitled to court-appointed counsel in their post-conviction appeals.
But to lawyers Troy Booher and Michael Zimmerman, there's no doubt that condemned inmates have a constitutional right to legal help at the post-conviction stage to ensure their sentences are appropriate before they are put to death.
In a friend-of-the-court brief submitted on behalf of the Utah Association of Criminal Defense Lawyers, Booher and Zimmerman ask Roth to declare that the state must provide adequate compensation before new counsel is appointed.
Their brief contends adequate pay and good lawyering will benefit everyone by moving cases along and bringing finality for the loved ones of murder victims.
"If you want the death penalty implemented in a reasonable amount of time, you provide for adequate counsel," says Zimmerman, a former chief justice of the Utah Supreme Court. "The money the state makes available is grotesquely inadequate."