Court Rejects Appeal Of Execution Begging For His Life, Mckenzie Denies 1974 Torture Murder

Duncan McKenzie Jr., facing death by lethal injection early Wednesday morning, maintained his innocence Monday in asking Gov. Marc Racicot to spare his life.

But even as he pleaded for clemency, the 9th U.S. Circuit Court of Appeals rejected McKenzie’s remaining attempt to block the execution. The court’s decision set the stage for a final-hours appeal to the U.S. Supreme Court.

The appellate court ruled 2-1 in rejecting McKenzie’s claim that his execution after 20 years on death row is cruel and unusual punishment prohibited by the U.S. Constitution.

The court said that McKenzie could have raised the claim 10 years ago, and that an execution delayed for defense appeals does not violate the Constitution.

“We are not confronted with a situation where the state of Montana has set up a scheme to prolong the period of incarceration, or rescheduled the execution repeatedly in order to torture McKenzie,” the court said.

“The delay has been caused by the fact that McKenzie has availed himself of procedures our law provides to ensure that executions are carried out only in appropriate circumstances.”

McKenzie, 43, was convicted in the 1974 aggravated kidnapping and torture murder of Lana Harding, a teacher at a one-room school near Conrad. He was convicted in 1975 and sentenced to die. Appeals in state and federal courts delayed the execution for two decades.

In his face-to-face plea for clemency from Racicot, McKenzie would not admit he killed Harding. He had asserted his innocence over the years.

“I can’t come to you and beg forgiveness for something that I didn’t do,” McKenzie told Racicot during the 35-minute meeting at Montana State Prison.

The meeting was requested by McKenzie earlier in the day, and Racicot drove to Deer Lodge to talk with the condemned man. The Board of Pardons recommended on Saturday Racicot reject McKenzie’s request to have his sentence commuted to life in prison without parole.

Racicot said he will issue a decision Tuesday after he has reviewed documents and testimony submitted at the board’s weekend clemency hearing.

In the talk with Racicot, McKenzie said that if he is allowed to live, he will use his years in prison to find a way of proving his innocence.

Wearing an orange jumpsuit, handcuffs and leg chains, McKenzie sat across a small table from the governor and made his case for mercy.

“I can’t say that I accept responsibility for Lana Harding’s death,” he told Racicot, a former state attorney general. “I feel a great deal of remorse for the Harding family and for the suffering that they have gone through with their loss.”

McKenzie also denied beating nearly to death Barbara Stiffarm of Harlem in 1970, a crime for which he was convicted and sentenced to three years in prison.

He said he agreed to plead guilty to the Harding murder in 1974 as part a proposed agreement with prosecutors, but not because he committed the crime. McKenzie said he did so because his stepfather persuaded him that a 50-year prison term would be less hard on his ailing mother than would having her son receive the death penalty.

McKenzie showed emotion only once - seemingly lost for words when mentioning one of his daughters plans to be married this month.

A commuted death sentence would be “a most unexpected and most welcome gift to a young girl starting her life, instead of having to start her life with her new husband under a black cloud,” he told Racicot.

Meanwhile, the Montana Supreme Court quickly rejected a claim by McKenzie’s lawyers that the March 27 death warrant is invalid because it was directed to the prison warden and the state had no one with that title then.