A federal judge on Tuesday refused a death-row prisoner’s request to disqualify the Board of Executive Clemency from hearing his plea for mercy, finding that he didn’t prove that the governor’s office pressured board members to pursue a tough-on-crime policy.
Judge Roslyn Silver of U.S. District Court concluded that an attorney for Edward Schad, who is scheduled to be executed Oct. 9, failed to meet her burden in showing the board is biased and would treat him unfairly. His clemency hearing is set for today.
A court hearing on Schad’s request went well past closing hours for the Sandra Day O’Connor U.S. Courthouse in Phoenix as Schad’s attorney, Kelley Henry, tried to make her case.
But testimony from current board members who said no one from the Governor’s Office tried to influence their votes carried the day, dousing claims that the office created an unfair clemency process. Three current clemency board members and a former one testified that no one from the governor’s office has ever tried to intimidate them or influence their votes on clemency matters and that they regularly based their votes on their conscience and facts.
The testimony countered statements by other former members who said they were either questioned about their votes in certain cases by the governor’s staff or questioned about them during job interviews.
In the end, the testimony indicated the governor’s office doesn’t try to wield influence over current board members, but that it didn’t reappoint three former members who recommended clemency in two high-profile cases. Two former members testified in effect that they were grilled about their votes in specific controversial cases during closed-door interviews when they applied for reappointment.
The state objected to the two former members, Ellen Stenson and Marilyn Wilkins, testifying about interviews conducted in executive session. The judge sustained the objections, but said she would consider their sworn affidavits describing the secret interviews. Wilkins said in her affidavit that Gov. Jan Brewer’s Chief of Staff Scott Smith got in her face, wagged a finger at her and reminded her that she voted to release a sex offender.
Wilkins and Stenson said they think they weren’t reappointed because they didn’t vote the way the governor’s staff wanted them to vote on two cases. And former Chairman Duane Belcher said he was summoned by the governor’s Chief of Staff Scott Smith and questioned about those cases. He indicated he also thinks he was ousted for his votes.
The cases involved Bill Macumber, an elderly inmate who many believed to be innocent of a double murder in the 1960s, and Robert Flibotte, an elderly first-time sex offender who had been sentenced to 90 years behind bars for possessing child pornography. Stenson, Belcher and Wilkins were on a board that unanimously recommended clemency for both prisoners. Brewer, who has the last word on clemency matters, rejected the board recommendations.
Macumber eventually was released after striking a deal with prosecutors, but not before his son confronted Brewer at a public event in front of national news cameras.
Although Silver refused to issue a temporary to stop the clemency hearing, she ordered former member Melvin Thomas to get more information about a letter cited in his testimony.
Thomas said he had seen a portion of a letter that apparently was from the governor’s office to a board member complaining about the member’s voting record.
Thomas said the letter was in the form of an email that was on a person’s cell phone, and the person implied it was from the governor.
Thomas has refused to name the person who showed him the letter because he doesn’t want to breach the person’s trust, but Silver’s written order said he will have to tell her eventually or give her the reasons why the person wants to stay anonymous.
Silver also ordered Thomas to get a copy of the letter if possible and give it to the parties in the case or the court.
Silver wouldn’t allow Henry to issue a broad subpoena to fish for the letter, but if Thomas is able to provide enough specific information, Henry can subpoena the letter.