Lawsuit: Brewer pressured clemency board

2013-09-26T18:41:00Z 2013-09-26T18:46:44Z Lawsuit: Brewer pressured clemency boardBy Howard Fischer Capitol Media Services Arizona Daily Star

PHOENIX — Five former members of the state Board of Executive Clemency say they were pressured by a top aide to Gov. Jan Brewer to deny requests for relief from those in high-profile cases.

In a signed affidavit, former Chairman Jesse Hernandez said he was called into several "come to Jesus" meetings by Scott Smith, Brewer's chief of staff. Hernandez said Smith told him the governor does not want a repeat of two situations where the board had recommended clemency, putting her in the position of having to reject the pleas.

"I immediately understood this to mean that Gov. Brewer was directing me not to recommend clemency in high-profile cases," Hernandez wrote.

Four other former board members — three who were replaced and a fourth who, like Hernandez later quit — made similar complaints. Some said Brewer refused to reappoint them because they had supported earlier clemency efforts, forcing the governor to make a ruling.

The filings come in a federal court lawsuit filed Thursday in a bid to stop the Oct. 9 execution of Edward Schad, convicted in the 1978 murder of Lorimer Grove of Bisbee.

Schad has exhausted all of his legal appeals. But he is scheduled to go before the five-member clemency board next week — a board his lawyers contend now has members under pressure to reject his plea.

The board's vote is significant because Brewer can grant a reprieve only if it makes such a recommendation. Schad's lawyers say if the board has been coerced not to recommend clemency, it lets Brewer avoid having to make such decisions — and avoid the attendant publicity.

The federal court filing seeks to block the current board from hearing the case.

That, in turn, could delay the execution to give Schad a chance to make his case for clemency to what his lawyers call "a legally constituted, legally performing, conflict-free and independent board.”

"Smith's actions on behalf of Gov. Brewer have so impacted the board that it is impossible for any death-row inmate to access executive clemency while Gov. Brewer holds office,” the lawsuit states. It says that the actions "have rendered the Arizona executive clemency process a sham.”

But even if Schad wins his bid for a new board and that board recommends clemency, that may not save his life: Brewer remains free to ignore it.

Gubernatorial press aide Andrew Wilder said could not say whether Smith had conversations with any board members or what was said. But he said no one from the governor's office ever sought to interfere with any case pending before the board.

And Wilder said even if Smith talked to board members about prior cases, sometimes in the context of them seeking reappointment to a new term, that hardly counts as interference.

Schad's attorneys contend Brewer is embarrassed by rejecting some high-profile requests and has made it clear to board members, through her staff, they should not put her in that position.

Duane Belcher, the former board chairman, said Smith and Joe Sciarrotta, the governor's chief counsel, told him the governor's office was unhappy with his vote to twice recommend clemency for William Macumber after the board concluded he likely was innocent. Belcher said the pair told him the governor was "blindsided'' by the vote which forced her to reject the plea.

Her denial also resulted in an uncomfortable moment for the governor in 2010 when Macumber's son confronted her in front of television cameras demanding to know why she had rejected the recommendation.

Marilyn Wilkens, seeking reappointment to the board, said Smith told her he was displeased she voted to reduce the sentence imposed on Robert Flibotte, a 74-year-old first-time male sex offender who had been sentenced to 90 years behind bars for possession of child pornography.

That sentence was required because of mandatory consecutive terms. Board members concluded a shorter term was appropriate.

Wilkens said Smith got about five inches from her.

"He was shaking his finger at me and told me in a raised voice, almost yelling at me, that I voted to let a 'sex offender' go,” she said in her affidavit.

Wilkens said she believes Brewer, who had appointed her in 2010, refused her a new term "because the governor's office does not want to receive clemency recommendations from board members in high-profile cases.”

Wilder said while he cannot address each allegation, he said Hernandez resigned from his post earlier this year amid an investigation accusing him of inappropriate behavior, including giving an employee he was dating a promotion and a pay raise.

"He's got some truth-telling issues," Wilder said.

Wilder also said Brewer has granted clemency in cases where she thinks it is appropriate.

Records obtained by Capitol Media Services show Brewer got 22 recommendations last year, granting seven and denying 15. But in six of the cases, the inmates, convicted of crimes like car theft and forgery, were dying; the seventh was a woman nearly 70 who had served nearly 49 years behind bars after being convicted of murder.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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