After Reese said Gardner’s avenues for appeal are exhausted and that he would sign the warrant, Gardner told the judge: “I would like the firing squad, please.”

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 want to die by firing squad.

Defense attorneys asked Reese not to sign the warrant and convert the sentence to life in prison without the possibility of parole.

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 executing his killer, 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 vowed to never use a weapon on another person, Temu said. After Vietnam, he dedicated himself to helping those who couldn’t afford to hire an attorney and gave free legal advice on a radio talk show.

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 at 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 Temu and Ra, yelling that they were to be his hostages, but never opening fire. They escaped. Temu later went back to find Burdell lying alone on the floor of a records room.

“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.”

Now, liberals and conservatives — longtime opponents on contentious social issues from abortion to capital punishment — are working together in a time of strong political polarization.

The effort took center stage at the National Coalition to Abolish the Death Penalty’s annual conference over the weekend in Louisville. Brown was joined by a conservative minister, the Rev. Matt Randles of Headwaters Coventant Church in Helena, Mont., and Heather Hass, a former National Republican Congressional Committee staffer. They walked fellow activists through how to make their case to others about the anti-death penalty movement.

Shari Silberstein, executive director of Equal Justice USA, a Brooklyn, N.Y.-based anti-death penalty organization, said working with conservatives is about common sense and common ground.

“It’s not really an ideological question,” Silberstein said.

The effort has been backed by Richard Viguerie, a fundraiser and activist considered the father of the modern conservative movement. Viguerie, in a July 2009 essay in Sojourners magazine, wrote that executions are supposed to take the life of the guilty — but noted there are enough flaws in the system to fear an innocent person has been put to death.

Viguerie noted that death row inmates have been exonerated by DNA evidence, raising the prospect that prosecutors and juries made mistakes in cases without scientific evidence and in cases that predate the science.

“To conservatives, that should be deemed as immoral as abortion,” Viguerie wrote.

And as lawmakers continue to slash budgets because of the slumping economy, many are wondering whether the price tag of the death penalty and the resulting drawn-out legal process is worthwhile. The winding series of appeals often runs up huge legal bills for states, which many advocates say is often more expensive than the cost of life imprisonment.

In 2007, New Jersey and New Mexico became the 14th and 15th states to abolish the death penalty. Ten other states have considered repealing it in recent years.

Kansas lawmakers have four days of hearings scheduled later this month to consider abolishing executions in the state, based in part on cost. And a Duke University professor concluded that North Carolina could save $11 million a year if it halted the death penalty.

“Criminals should be prosecuted,” Brown said. “I want it to be life without parole. In the long run, that’s much cheaper.”

Not all conservatives are open to Brown’s pitch. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and an outspoken capital punishment supporter, said most of the costs of a death penalty case come from “exhaustive investigation” of the defendant’s background and should be cut out.

“I think those who are falling for this line are misguided,” Scheidegger said. “The death penalty does not need to cost more than life imprisonment.”

While there are no hard numbers on how many conservatives have joined the anti-capital punishment campaign, those involved say it’s a growing movement.

“I am so sick of American polarizing politics,” said Laura Porter, director of organizing for the Equal Justice USA. “I think we all have a lot more in common than is ever acknowledged.”

Brown knows not everyone will agree with him, but he and other death penalty opponents are willing to take small gains.

“There are some people I’m not going to convince,” Brown said. “That’s all right. I’m not trying to win over the world.”

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On the Web: http://www.ncadp.org/

The prosecutors’ subpoena has sparked almost universal condemnation. Many commentators view it as a blatant attempt to harass the students and their professors and to chill advocacy on behalf of wrongly convicted individuals.

The prosecutors, however, will likely get the documents they seek — unless a judge determines that the students are “journalists” under Illinois law. If the judge treats the students as journalists, then Illinois law would shield their communications from disclosure.

Full smear campaign

The merits of the subpoena depend solely upon the status of the students under the Illinois journalistic shield statute. Nevertheless, Alvarez has apparently decided to launch a full smear campaign against the Medill project.

First, Alvarez defended the subpoena by claiming that she wanted to know whether students received higher grades if they concluded that inmates were innocent. Now, Alvarez has made the salacious claim that Medill students paid two witnesses for their testimony.

According to an article in the Wall Street Journal, Cook County prosecutors argued in court yesterday that Drakes received $40 from a cab driver hired by the Medill project and that he used the money to purchase “crack cocaine.” Prosecutors also argued that students paid Michael Lane, a friend of Drakes and possible accessory to the murder, between $50 and $100  and “took him out for cocktails and dinner and flirted with him.” Prosecutors, however, provided no other details regarding the payment to Lane. These assertions reflect absolute hypocrisy and desperation by the prosecutors.

Prosecutors “pay” witnesses all the time. In exchange for testimony from witnesses, prosecutors pursue lesser charges, or they give them full or partial immunity. They also drop pending charges in other cases. Prosecutors also threaten harsher penalties if witnesses refuse to cooperate. Indeed, it is probably likely that prosecutors threatened Drakes, who confessed to a murder, with severe penalties before he “recanted.” In order to question the students’ credibility, Alvarez must also question the credibility of prosecutors across the nation.

Furthermore, the prosecution’s assertions seem highly unlikely. Indeed, the Medill project has a simple explanation for the payment to Drakes, which suggests that prosecutors made the allegation purely for shock value, rather than substance. David Protess, the professor who runs the Medill project, says students paid a cab driver to transport Drakes and that he retains the receipt.

Protess also questions the sincerity of Cook County prosecutors who seem to believe that Drakes would confess to murder for $40. But these prosecutors are so desperate to conceal the truth that they apparently do not care about their own reputations or the reputations of the Medill students who pursue justice for wrongfully convicted individuals.

The subpoena is highly inappropriate

The subpoena raises several red flags. First, the information the prosecutors seek is completely unrelated to the question of McKinney’s guilt or innocence. Second, student grades are normally protected from disclosure by federal law. Third, the program is operated by the school of journalism and likely qualifies for protection by state journalism shield laws and the First Amendment. Fourth, the professor’s course materials are possibly protected from disclosure by the concept of academic freedom — which the Supreme Court has construed as a value secured by the First Amendment.

Sally Daly, a spokesperson for the Cook County District Attorney’s Office, denies any wrongdoing by prosecutors. Instead, Daly points the finger at students. Daly claims that prosecutors are concerned that students could have qualified for higher grades if they concluded that the inmate was innocent. This is a highly unusual — and insulting — assertion. First, any reputable professor would grade a student’s research by evaluating the methodology and written presentation, rather than using the final conclusion as a litmus test. Second, prosecutors should make their own independent determination regarding McKinney’s guilt or innocence — rather than treating the students as suspects.

During interviews the students conducted, several key witnesses recanted their testimony. The students have already turned over videotapes of these interviews to prosecutors. Prosecutors should question these witnesses rather than fishing for the students’ personal materials.

Daly makes other nonsensical and outrageous arguments in defense of the subpoena. Although the subpoena extends to grades, she says that “[w]e’re not trying to delve into areas of privacy or grades …” Daly also likens the subpoena to the routine disclosure of information by “detectives.” Police detectives, however, work for the government and assist the prosecution. They are colleagues. Although private detectives do not work for the government, they have an unambiguous financial stake in the outcome of their investigation. The students, by contrast, are private citizens and journalists. The Medill project exists to monitor and improve the criminal justice system — not to service the prosecutors’ office or inmates.

Northwestern University vows to fight the subpoena

Fortunately, Northwestern University is fighting the subpoena. As the New York Times reports:

Northwestern University and David Protess, the professor who leads the students and directs the Medill Innocence Project, say the demands are ridiculously overreaching, irrelevant to Mr. McKinney’s case, in violation of the state’s protections for journalists and a breach of federal privacy statutes — not to mention insulting.

John Lavine, the dean of the Medill School of Journalism, said the suggestion that students might have thought their grades were linked to what witnesses said was “astonishing.” He said he believed that federal law barred him from providing the students grades, but that he had no intention of doing so in any case.

Professional journalism groups have also stepped forward to defend the students.

Irony

The outcome of this matter could turn on whether a judge treats the students as “journalists” under Illinois law. If the students are journalists, their work is protected from disclosure.

Ironically, the prosecutors’ brief provides the best argument for treating the students as journalists. In awfully butchered and revealing prose, prosecutors complain that: “The school believes it should be exempt from the scrutiny of this honorable court and the justice system, yet it should be deemed a purveyor of its inadequacies to the public  …” The prosecutors are uncomfortable with the idea of shielding journalists who investigate and publicize “inadequacies” in the criminal justice system. But having an additional “check” on the government is one of the strongest justifications for vigorously protecting the work of journalists.

Illinois prosecutors are blatantly using the strong arm of the state to harass Medill journalism students. The prosecutors’ behavior evinces a deep contempt for the law, which makes the students’ efforts to uncover wrongful convictions even more compelling.

Dragged it kicking and screaming, for it was Justice who ordered Texas to integrate its public schools in 1971 — 17 years after the Supreme Court’s Brown v. Board of Education decision made separate schools for blacks and whites unconstitutional. Texas resisted doing the right thing for as long as it could. Many of its segregated schools for African-American children were so poor they still had outhouses instead of indoor plumbing.

This small-town lawyer appointed to the federal bench by President Lyndon B. Johnson ordered Texas to open its public housing to everyone, regardless of their skin color. He looked at the state’s “truly shocking conditions” in its juvenile detention system and said, Repair it. He struck down state law that permitted public schools to charge as much as a thousand dollars tuition for the children of illegal immigrants.

And Justice demanded a top-to-bottom overhaul of Texas prisons, some of the most brutal and corrupt in the nation. He even held the state in contempt of court when he thought it was dragging its feet cleaning up a system where thousands of inmates slept on the dirty bare floors of their cellblocks and often went without medical care. The late, great Molly Ivins said, “He brought the United States Constitution to Texas.”

Some say that justice stings. William Wayne Justice certainly did — and his detractors stung back with death threats and hate mail. Carpenters refused to repair his house; beauty parlors denied service to his wife. There were cross burnings and constant calls for his impeachment.

After he desegregated the schools he was offered armed guards for protection. He turned them down and instead took lessons in self-defense.

You need to understand that while so many Texans have fought and are fighting the good fight in the Judge Justice tradition, others believe in the law only when it sides with them. They long for the good old days of Judge Roy Bean, the saloonkeeper whose barroom court was known in the frontier days as “the law west of the Pecos.” His judicial philosophy was simple: “Hang ‘em first, try ‘em later.”

The present governor of Texas seems to be channeling Bean. During his nine years in office, Rick Perry — “Gov. Goodhair,” as Ivins called him — has presided over more than 200 executions, dwarfing the previous record of 152 set by his predecessor in the governor’s mansion, George W. Bush. (The most, it is said, of any U.S. governor in modern history.)

Lethal injection is practically a religious ritual in Texas. In fact, before their sentencing verdict that will send Khristian Oliver to die in just a couple of weeks — on Nov. 5, to be exact — jurors in the east Texas town of Nacogdoches consulted the Bible and found what they were looking for in the book of Numbers, where it reads, “The murderer shall surely be put to death,” and, “The revenger of blood himself shall slay the murderer.” Although it was noted that referencing holy writ was an inappropriate “external influence,” two appeals courts upheld the jury’s sentence and the U.S. Supreme Court refused to hear the case.

Perry will do almost anything to please the vengeful crowd in the Colosseum with their thumbs turned down. Did we mention that next year he’s up for reelection? When it turned out recently that five years ago the state may have executed a man for a crime he didn’t commit, Perry pulled some particularly shady moves.

In February 2004, Cameron Todd Willingham was put to death for allegedly setting a fire that killed his three young daughters. Perry has willfully ignored evidence from top arson investigators that the blaze was not homicide but an accident.

Now Perry has fired the chairman and three members of the state’s Forensic Science Commission just as they were about to hear further scientific testimony that might prove Willingham’s innocence. This week, Perry told reporters that the controversy is “nothing more than propaganda from the anti-death penalty people across the country.”

They can be short on mercy in Texas. All the more reason to mourn the loss of Justice — William Wayne Justice. Rest in peace, your honor.