FILE: Defense lawyer Mark Moffat, left, clears a spot at the table for death row inmate Douglas Stewart Carter during a hearing in Provo's 4th District Court in October 2007. Photo: Al Hartmann, Salt Lake Tribune/Pool
PROVO, Utah — The state of Utah filed paperwork with the 4th District Court in Provo Monday indicating it intends to appeal the vacated death sentence of a man who has been on the state’s Death Row since 1985.
Douglas Stewart Carter remains at the Utah State Correction Facility. The ruling that would potentially free him stays on hold pending the state’s appeal.
Wednesday, Judge Derek P. Pullan issued a ruling overturning Carter’s convictions for the murder of Eva Olesen, whose nephew served as the Provo police chief back in 1985. Monday, prosecutors working in the office of the state attorney general announced their plan to appeal.
Carter appealed his initial death sentence in 1985, receiving a second death sentence in 1992. In 2019, the Utah Supreme Court sent the case back to the 4th District Court in Provo. Justices found the testimony of two key witnesses in the case “tainted,” after Carter’s defense team located the couple in 2011. At that time, they told attorneys they had received cash and other gifts in exchange for testifying against Carter in his 1985 trial.
Back in 1985, Epifanio and Lucia Tovar testified that Carter came to them after Olesen’s murder, bragging about the crime. But in the 2011 affidavit, Epifanio Tovar told the defense he and his wife were advised not to testify about any benefits they received from police, which included rent payments, money for utilities, and even food and Christmas presents, worth thousands of dollars in total.
The opinion from the state Supreme Court found that evidence could have changed the outcome of Carter’s trial.
“We hold that there exists a genuine dispute of material fact as to whether the outcome of the trial would have been different,” the justices wrote in 2019.
Pullan’s ruling last week cited evidence the Tovars faced threats of deportation and that police coached them on specific language to use in their testimony. Carter’s defense team argued the failure of prosecutors to disclose that information violated Carter’s rights under Brady v. Maryland, a landmark ruling from the U.S. Supreme Court that requires prosecutors to disclose any information that could be considered “exculpatory” — in other words, information that could exonerate someone accused of a crime.
“The State knowingly failed to disclose that the testimony was false and coached by police,” Pullan wrote. “Carter’s conviction was secured — at least in part — on the basis of this false testimony.”
In announcing their plans to appeal, attorneys for the state of Utah did not offer any specifics about the arguments they plan to make. But the response means the ruling overturning Carter’s convictions remains on hold while the appeals process moves forward.
Utah officials last put an inmate to death in 2010. Ronnie Lee Gardner’s execution prompted widespread media attention because he opted to face the firing squad rather than lethal injection. It also sparked ongoing debates about the death penalty as a punishment.