Attorneys defending death row inmate Ralph Menzies argued in court this week that prosecutors with the Utah attorney general’s office haven’t acted fairly and should be kicked off the case.
Menzies has been on Utah’s death row since he was 29 years old. Now, at 66, his attorneys say he has dementia and cannot rationally understand his death sentence. They filed for a competency review earlier this year.
This presented a problem for the Utah attorney general’s office.
(Utah Department of Corrections) Ralph Leroy Menzies, who has been on Utah's death row since he was 29 years old.
In addition to prosecuting Menzies’ case, the office’s attorneys also represent the Utah Department of Health and Human Services and the Utah Department of Corrections — both agencies that play a role in determining Menzies’ competency. DHHS staff evaluate him, and Corrections staff provide evidence, such as phone calls or witness statements about his behavior.
To remedy this, the office instated a “conflict screen” — essentially a communications firewall — between its attorneys representing each agency, meant to ensure their independence from each other. It barred communications between the various attorney general’s office lawyers representing each entity in most instances, according to a copy of the memo.
Yet, when Menzies’ attorney Eric Zuckerman said he subpoenaed emails from counsel representing those entities, the attorney general’s office declined to hand over hundreds of emails because, they wrote, they were considered privileged “work product” and because of attorney-client confidentially.
In other words, Zuckerman interpreted, they were working together.
That apparent admission, Zuckerman argued Wednesday in 3rd District Court, violates the firewall the attorney general’s office elected to put in place, allowing prosecutors to collude with other state agencies such that prosecutors cannot ensure Menzies’ case is handled fairly. That’s why he called for the prosecutors to be disqualified.
The competency decision “is going to determine whether the state will execute Mr. Menzies or not, and when you are dealing with the death penalty, there are heightened precautions to make sure these proceedings are fair,” Zuckerman said.
Prosecutors argue defense team is speculating
The attorney general’s office has said Zuckerman’s claims of collusion are speculative and has asked the court to rule against the motion.
Third District Judge Matthew Bates ruled Wednesday that the emails Menzies’ team requested must be released. He reasoned that if the attorney general’s office prosecutors shared information among the independent sets of DHHS and Corrections Department counsel, then that information must also be shared with Zuckerman and the defense.
He asked for more time to decide whether or not to disqualify prosecutors, but he intends to enter a written ruling by Oct. 30.
When reached Wednesday, the attorney general’s office declined to comment.
Zuckerman on Thursday declined to offer comment on the hearing’s outcome, but in a statement issued prior to Wednesday’s hearing, he said Menzies was entitled to “impartial competency proceedings.”
Lawyers have been litigating Menzies’ competency since his attorneys broached the issue in January, about a week after prosecutors filed court documents requesting that a judge sign off on Menzies’ execution warrant so his death sentence could be carried out.
Aside from dementia, Menzies’ attorneys have said their client has also been experiencing chronic dizziness since 2018. The symptoms escalated after he fell from a ladder while working at the prison that year, resulting in a multiday hospitalization, court filings state.
Menzies was convicted in 1988 of killing Maurine Hunsaker, a 26-year-old mother of three abducted from her job at a Kearns convenience store. Her body was later found at a Big Cottonwood Canyon picnic area. She had apparently been strangled and her throat was cut.
Members of Hunsaker’s family attended Wednesday’s hearing but did not testify.
Attorneys have a ‘common interest,’ prosecutors say
When prosecutors spoke at Wednesday’s hearing, they did not deny that they communicated with counsel representing the different state agencies. Instead, they argued attorneys have a “common interest” and shared information accordingly.
Common interest is an “expanded version of the attorney-client privilege,” according to the American Bar Association. Attorney-client privilege bars an opposing attorney from getting access to communications regarding legal advice between an attorney and their client; common interest, meanwhile, comes into play when multiple clients and/or attorneys are working toward a shared goal — like when separate attorneys may work to exonerate codefendants in a criminal case.
Andrew Hopkins, with the attorney general’s office, argued in court Wednesday that the parties represented by his office were not “adversarial,” and that the imposed firewall was meant to preserve attorney-client privilege.
He asserted that various agency attorneys talking to each other was not evidence of a conflict or violation.
In arguing against the disqualifying motion, prosecutor Daniel Boyer, with the attorney general’s office, offered to let Bates review the emails, saying the judge wouldn’t find any impropriety or evidence that the prosecuting attorneys were trying to influence those representing DHHS or UDC.
“The sheer volume of production of discovery by UDC weighs against this argument,” Boyer added, noting that the Corrections Department, for instance, has turned over phone calls where Menzies “complains about memory errors.”
“If we were colluding with UDC to somehow create an unfair advantage against [Menzies], then the production wouldn’t look the way it does,” Boyer said.
Competency question to be argued next month
(Francisco Kjolseth | The Salt Lake Tribune) Matt Hunsaker, who’s mother, Maurine Hunsaker, was killed by Ralph Menzies in 1986, speaks in opposition as he attends a hearing to repeal Utah’s death penalty on Monday, Feb. 14, 2022.
Attorneys have also been arguing about whether or not Menzies should appear at any of his upcoming competency hearings. Menzies’ attorneys have said that his “numerous, well-documented health conditions” make transporting him and having him sit through hearings “painful and uncomfortable.”
For instance, Menzies uses a walker to get around, and cannot do so if his hands are cuffed behind his back, according to court records.
Bates said Wednesday he’d also rule on that at a later date, once attorneys got together to articulate their concerns and pitch accommodations, like providing space for Menzies to rest during the day.
But Bates said he’d like to see Menzies at least one day of the scheduled five-day hearing. A court date on the matter is scheduled for Oct. 31.
“It’s hard to make a decision on his competency when all I’m seeing is thirdhand accounts,” he said.
Evidentiary hearings regarding Menzies’ competency will take place Nov. 18-22, according to court records.
Utah’s last execution took place Aug. 8, when the state carried out Taberon Honie’s death sentence at the Utah State Correctional Facility in Salt Lake City. Before Honie, the last time the state executed a man was in 2010, when Ronnie Lee Gardner was killed by firing squad.
