Menzies should die by terminal illness, not firing squad, his attorneys argue

SALT LAKE CITY — Attorneys for death row inmate Ralph Leroy Menzies say one way or another, their client will die in prison.

But attorney Eric Zuckerman says the Utah Board of Pardons and Parole should allow Menzies “to die from his terminal illness and not by firing squad.”

“Mr. Menzies will die in this prison,” he told the board. The question is whether he will die from his terminal vascular dementia, “or whether the state of Utah will hasten his death by shooting him.”

On Wednesday, the 2 1/2 day commutation hearing for Menzies got started at the Utah State Prison. At stake is whether the Utah Board of Pardons and Parole will change Menzies’ death sentence to life in prison without the possibility of parole. Menzies, 67, is scheduled to be executed by firing squad early on the morning of Sept. 5.

Over the next three days, board members will hear testimony from attorneys both for and against commuting his sentence, as well as representatives of Maurine Hunsaker, a 26-year-old mother of three, who in 1986 Menzies robbed, kidnapped, tethered to a tree near Storm Mountain in Big Cottonwood Canyon, and slit her throat.

Menzies’ attorneys are addressing the board first. Once they are finished, the state will present its case. The third phase of the hearing has times set aside for three victim representatives to address the board, which typically involves family members. That will be followed by closing arguments from each side.

Zuckerman argued Wednesday that his client is not the same person he was when he was convicted 37 years ago. He has grown old and has a terminal illness.

“That’s not a matter of argument or to be debated,” Zuckerman said. “His brain is literally shrinking.”

While Zuckerman says the defense recognizes that Menzies has had more of a life than his victim, his life has been limited by being incarcerated for the past 37 years.

“It has not been a good life,” he said while adding that the execution of Menzies will not bring Hunsaker back. “(It’s) not the only way to bring closure to this situation.”

Several medical doctors are expected to testify Wednesday about Menzies’ vascular dementia. Zuckerman said the state is expected to argue that Menzies actually knows what is going on. But he countered that “ebbs and flows” with his dementia and sporadic moments of clarity from a year ago do not negate the fact that he still has terminal dementia.

Menzies’ attorneys are further expected to argue that an inmate whose testimony was key in getting the original death penalty decision actually committed perjury and now admits he made up his testimony. Furthermore, the judge who sentenced Menzies to death admitted before his death that the sentence was the wrong decision in this case.

“Utah has never executed a person where the sentencing judge believes he made a mistake,” Zuckerman told the board.

The option of sentencing a person to life in prison without the possibility of parole was not available when Menzies was convicted.

Zuckerman noted Wednesday that he will not argue Menzies’ competency, but rather provide new information that has been learned over the past 37 years and argue the original reasons for giving Menzies the death sentence no longer exist.

Menzies sat in a wheelchair in an orange prison jumpsuit with his supplemental oxygen tank during Wednesday’s hearing.

While Taberon Dave Honie directly addressed the board during his commutation hearing last year, it is unclear if Menzies will do the same. In their petition for a commutation hearing, his attorneys noted that they have “advised Mr. Menzies not to speak, as he cannot meaningfully prepare, recall his remarks, or remain focused on the subject at hand.”

In their response, the Utah Attorney General’s Office, however, contends that Menzies “understands the world. He is not confused. While he needs help with some things, he has not forgotten how to care for himself. If he is scared, it’s not an irrational fear caused by dementia; it is instead a rational fear of his impending death.

“Commuting Menzies’ sentence would mean vitiating a sentence, and a penalty-phase case, that every reviewing state and federal court has found to be constitutionally fair,” the state continued.

Separate from the hearing before the board of pardons, a 3rd District judge is also currently reviewing the latest request by Menzies to reconsider his mental competency. Depending on the judge’s decision, Menzies’ execution date could be delayed.

Once the three-day hearing is over, the full five-member board will take all the information made available to them under advisement and, at some point before Sept. 5, vote on whether to change Menzies’ death sentence to life in prison without the possibility of parole. A final decision will be based on a majority vote.

The last two inmates executed by the state also were granted commutation hearings. Honie was granted a commutation hearing last year, as was Ronnie Lee Gardner in 2010. The board ultimately rejected their arguments, however, and both executions proceeded as scheduled. Gardner was the last Utah inmate put to death by firing squad. Honie died by lethal injection.

This story will be updated.