Gov. Jan Brewer last year followed the cues of judges in reducing the sentences of prisoners who were convicted of manslaughter, aggravated assault and selling methamphetamine.
Brewer, who commuted the sentences of seven prisoners in 2013, is required by law to provide reasons for her clemency decisions in a report to the Legislature. But she was silent on the majority of cases, including the one of Patrick Maloney, who was sentenced in 1963 at age 16 to life without parole for the murders of his mother and stepfather. The governor did give a reason when she reduced the sentences of three prisoners who were dying.
In Maloney’s case, he, the public and his attorneys are left with little else than speculation on Brewer’s decision. Katie Puzauskas, an attorney with the Arizona Justice Project, the nonprofit that represented Maloney before the Arizona Board of Executive Clemency, said she thinks Brewer might have been swayed by Maloney’s age at the time of his crime, his good discipline record, and a 2012 U.S. Supreme Court opinion that held it is unconstitutional to lock up for life someone who committed murder as a juvenile without a chance of parole.
For the three remaining prisoners whose sentences were commuted without comment, court and clemency records provide a hint of what might have influenced Brewer to effectively set them free.
Judges in all those three cases invoked a statute that allows the defendant to petition the Arizona Board of Executive Clemency for a commutation within 90 days of entering prison if the judge thinks the mandated sentence is “clearly excessive.”
Judge Robert Gottsfield of Maricopa County Superior Court issued two of the orders and Judge Howard Fell of Pima County Superior Court issued the third.
Tucson attorney Brick Storts III, who has tried 43 first-degree murder cases since 1996, said Fell had never used the statute in his time on the bench until his client, Adam Acorn, 24, pleaded guilty to manslaughter in connection with the death of his older brother in a car crash.
“It was a very, very troubling case,” Storts said.
Brewer cut Acorn’s sentence in half from the 3-year deal he struck with the Pima County Attorney’s Office. Following are summaries of the cases Brewer commuted without comment in 2013.
Sentenced concurrently to 3 years and 2½ years respectively for manslaughter and aggravated assault. Commuted to 1½ years and 1 year in October 2013. His release is set for June.
Acorn was 21 on Sept. 2, 2011, when he was behind the wheel and missed a turn, crashing into a tree and killing his older brother, Nicholas Acorn, and injuring three others in the car.
Storts said although Acorn had been drinking he still had a favorable case because no one in the car wore seat belts and there had been several other fatalities on the dangerous curve over the years.
Storts said the Pima County Attorney’s Office refused his offer of
1 year in jail and probation, sticking instead to a deal of 3 years. Someone convicted at trial for manslaughter involving a car faces a sentencing range of 7 to 21 years.
Storts said he thinks the County Attorney’s Office refused to budge because it wanted to avoid an appearance of favoritism. Acorn’s father works for the Pima County Sheriff’s Office.
The sentencing was emotional because Acorn’s parents had lost one son and the other was going to prison. Fell questioned the prosecutor about the severity of the plea deal and said Storts’ offer was more than reasonable.
The board of clemency wrote in its recommendation for commutation that the Acorn family’s healing process will be “helped greatly” by Acorn’s return.
Sentenced to 5 years for aggravated assault. Commuted to time served in March 2013. He served 10 months.
Deputy Maricopa County Attorney Thomas Forsyth described Oman’s case as a tragedy.
“It is the story of a man who built a family, a career, a reputation, but chose to let his anger rear its ugly head and lash out in violence against the victim over something unimportant as being honked at on the road,” Forsyth wrote in his sentencing memorandum to the court.
The 55-year-old car mechanic instructor, who had no criminal history, was in a road-rage incident on Dec. 17, 2010, when he approached his nemesis at a stop light and warned him he had a gun and his finger was on the trigger.
The victim wanted to see the gun, so Oman pointed it at his face, according to a pre-sentence report prepared by the Maricopa County Probation Department.
“I should not have gotten out of the car,” Oman wrote in a letter to Gottsfield.
Oman claimed he never pulled his gun from its holster and he also misunderstood Arizona’s self-defense laws when the incident occurred.
Oman rejected a plea deal of 45 days in jail, opting for trial because he thought the jury would believe he acted in self-defense.
Gottsfield, who was required by law to sentence him to prison, cited Oman’s clean record, steady employment, the victim’s belief that Oman simply made a mistake and the state’s own assessment the case was a tragedy, as reasons for finding the sentence clearly excessive.
The clemency board had problems believing much of the evidence presented at trial against Oman. A Mesa police officer testified on his behalf at the clemency hearing along with others who said he had a reputation for peacefulness.
The board also “had serious reservations about what exactly it was that Erik Oman had done to be found guilty,” according to the board’s recommendation for commutation.
Sentenced to 5 years for possession of dangerous drugs for sale. Commuted to 3 years in October. Released on Oct. 18.
Ochoa was 26, had no criminal record and had been working for the same employer for 8 years when she was sitting at the wheel of her parked car on Dec. 5, 2009. Witnesses said drug sales were occurring on the driver’s side of the car.
Ochoa wrote to Gottsfield, saying she made the huge mistake of hanging out with the wrong person at the wrong time.
She also decided to roll the dice at trial and lost. Gottsfield said the jury was reasonable to convict, but would have been reasonable to acquit her otherwise.
“She has an unblemished record of gainful employment of the extent that the instant charge appears out of character,” Gottsfield wrote to support his opinion the sentence was excessive.
The clemency board denied her first try at commutation, but on her second application she said she made good use of her time thinking about and taking responsibility for her crime.
Sentenced to life without parole for first-degree murder and manslaughter. Commuted to 45 years to life in October. Released on parole on March 20.
Maloney was 15 when he shot and killed his mother and stepfather on Sept. 21, 1964.
Puzauskas said Maloney’s background and the fact he had an incestuous relationship with his mother weren’t given enough consideration at trial and a punishment for first-degree murder at the time was either death or life without parole.
Maloney’s disciplinary record is minimal and he spent 18 months driving a truck unsupervised for the prison. He got married in prison and was released many times on furlough, always returning as required.