PHOENIX — A federal judge refused late Tuesday to block a scheduled hearing today by the Board of Executive Clemency on the fate of convicted murderer Edward Schad.
The attorney for Schad and another inmate on death row presented testimony Tuesday from former board members who said their votes to recommend clemency in two prior high-profile cases resulted in Gov. Jan Brewer refusing to reappoint them.
Attorney Kelley Henry said Scott Smith, now the governor’s chief of staff, was sending a message to all board members that Brewer did not want such cases dropped in her lap.
But Judge Roslyn Silver had said all that may ultimately be irrelevant, citing testimony from the three current board members who were asked about the upcoming hearing.
“All the board members have said they would vote their conscience and have not been threatened,’’ the judge said.
Today’s hearing is a precursor to Schad’s scheduled execution next Wednesday, after his conviction for the 1978 murder of Bisbee resident Lorimer Grove.
Silver’s ruling also affects an upcoming clemency hearing for Robert Glen Jones Jr., scheduled to be executed later this month.
Henry tried to show that the Governor’s Office has exerted improper — and illegal — influence, at least on prior board members, and that the current members were aware that Brewer was watching.
What’s behind all that, Henry said, is that Arizona law allows a governor to commute a death sentence only if the board makes such a recommendation. Any pressure on the board to vote against commutation, she said, means the governor is spared having to make that decision.
And that “arm twisting,” Henry said, violates the rights of those seeking clemency.
Part of her case came from testimony and affidavits from Marilyn Wilkens, named to the board in 2010 to fill out a vacancy that expired in 2011.
Wilkens said in a reappointment interview that Smith shook his finger at her and, “almost yelling at me,” told her she voted to let a sex offender go.
But Assistant Attorney General Kelly Gillian-Gibson told Silver the vote for clemency in that case was unanimous, and others who voted for clemency are still on the board.