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Death-row attorney sues Brewer, Clemency Board

This undated photo provided by the Arizona Department of Corrections shows death-row inmate Samuel Villegas Lopez. Lopez's attorneys are fighting his upcoming execution, arguing in one filing Tuesday, May 1, 2012 that three newly appointed clemency board members are unprepared to consider his arguments for mercy and in another that the state Department of Corrections is violating his constitutional rights. (AP Photo/Arizona Department of Corrections)

A death-row prisoner scheduled for lethal injection May 16 sued Gov. Jan Brewer today, alleging she illegally appointed three members to the Board of Executive Clemency.

Julie Hall, an attorney for Samuel Lopez, is asking Maricopa County Superior Court Judge Joseph Kreamer to declare the appointments of the three new members “null and void” and order Brewer to form a new board that conforms to the law.

She is also asking the judge to direct Brewer and Lopez to seek a stay of execution from the Supreme Court.

The filing, which alleges that the illegal appointments deny Lopez of guarantees to minimum due process at a clemency hearing, came two days after another of Lopez’ attorneys, Federal Public Defender Kelley Henry, walked out of a clemency hearing. Henry claimed at the meeting that the Governor’s Office broke open meeting laws in appointing the new members.

Hall went a step further in the court filing by providing a motive for the governor’s alleged wrong doing.

“These were not technical violations of state statute,” Hall wrote. “They resulted in a board designed to not forward clemency recommendations to the Governor in high-profile or controversial cases.”

The new members, Chairman Jesse Hernandez, Melvin Thomas and Brian Livingston, were confirmed April 18 and 19 and replaced former Chairman Duane Belcher, Ellen Stenson and Marilyn Wilkens, all of whom had applied for re-appointment.

Belcher and Stenson have said they believe they were replaced for their votes in controversial cases.

Matt Benson, a spokesman for Gov. Jan Brewer, has said the appointment procedure was done legally and appropriately and that the claims were desperation tactics of an attorney trying to save her client.

Henry said that if she had proceeded with Monday’s clemency hearing, then she wouldn’t have been able to make a case in Maricopa County Superior Court.

Lopez was to go before the board to ask for a delay in his execution and to have his sentence changed from death to life without parole. Brewer has final say on the board recommendation. Lopez was convicted in the 1986 rape and murder of Estefana Holmes, 59, who was stabbed 26 times and her throat slit.

The filing alleges the open meeting violations occurred at the March 21 and 30 meetings of the Executive Clemency Selection Committee, made up of Department of Corrections Director Charles Ryan, DPS Director Robert Halliday, Eileen Klein, Brewer’s chief of staff, Scott Smith, deputy chief of staff, and Joe Sciarrotta, Brewer’s general counsel.

For example, the candidates were supposed to be notified in writing that their interviews would be in executive session, which Hall said didn’t happen.

“At least one of the prospective candidates, Marilyn Wilkens, would have objected to the executive session if she had been given proper notice,” Hall wrote.

Hall said the committee discussed “interview questions” and “selection of interview questions,” subject matter that is improper for executive sessions.

Hall said statute also requires three candidates per vacancy, but there were only eight candidates interviewed and only five of them forwarded to Brewer.

Hall also questioned whether the three new members were adequately trained. Arizona law requires every board member to complete four weeks of training, which she said wasn’t done by the time Lopez had his hearing on Monday.

Hall also said Hernandez isn’t qualified because his employment history doesn’t “demonstrate an interest in Arizona’s correctional program” as required by law, and Livingston has a conflict of interest because his job as a police lobbyist gives him a “financial interest in individuals who are witnesses in the cases which come before the board.”

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