PHOENIX — Saying he doesn't have a legal claim, the 9th U.S. Circuit Court of Appeals this afternoon rejected the bid by Edward Schad to delay his execution.
In an unsigned opinion, the judges rejected Schad's contention he should be able to pursue his claim that Gov. Jan Brewer, through her aides, had unfairly and illegally tainted the Board of Executive Clemency. The result, according to his lawyers, is that current board members are unlikely to recommend clemency.
But the appellate court said there's no basis for them to consider the issue.
"The Supreme Court has never recognized a case in which clemency proceedings conducted pursuant to a state's executive powers have implicated due process,'' the judges wrote.
At best, they said, an inmate might have claim if the clemency proceeding's outcome is "wholly arbitrary, as would be the case if clemency were determined by a coin toss.''
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Beyond that, the judges said that U.S. District Court Judge Roslyn Silver, who had rebuffed Schad's attempt to delay the clemency hearing -- and, by extension, his execution — did nothing wrong in concluding that the three members of the current board "testified credibly that no pressure from the governor was ever exerted upon them to vote against clemency.''
Absent intervention from the U.S. Supreme Court, Schad is set to be executed Wednesday on his conviction of the 1978 murder of Bisbee resident Lorimer Grover.
