Edward Harold Schad, Jr. and Robert Glen Jones, Jr., Plaintiffs,
Janice K. Brewer, et al., Defendants.
ROSLYN O. SILVER, Senior District Judge.
Plaintiff Edward Schad, Jr., an Arizona prisoner under sentence of death, is scheduled to be executed at 10:00 a.m. on Wednesday, October 9, 2013. He has filed a civil rights complaint under 28 U.S.C. § 1983 alleging denial of access to a full and fair clemency process, in violation of his rights under the Eighth and Fourteenth Amendments. He sought a temporary restraining order preventing the Arizona Board of Executive Clemency ("the Board") from holding a commutation hearing and enjoining his execution pending availability of a full and fair clemency process. (Doc. 1 at 3.) Plaintiff Robert Glen Jones, Jr., intervened and joined Schad in the motion for injunctive relief. Jones is scheduled to be executed at 10:00 a.m. on Wednesday, October 23, 2013. On October 1, 2013, the Court issued a short order that denied the request for a temporary restraining order and stated a longer order would issue. This is that longer order.
In 1985, a jury convicted Schad of first-degree murder for the 1978 strangling of 74-year-old Lorimer Grove. The trial court sentenced him to death. Details of the crime are set forth in State v. Schad, 788 P.2d 1162 (1989), and State v. Schad, 633 P.2d 366 (1981). Following unsuccessful state post-conviction-relief proceedings, Schad filed a petition for a writ of habeas corpus. This Court denied relief in September 2006, and the Court of Appeals for the Ninth Circuit ultimately affirmed. Schad v. Ryan, 671 F.3d 708 (9th Cir. 2011) (per curiam).
After denial of certiorari, the Arizona Supreme Court issued a warrant setting Schad's execution for March 6, 2013. The Board then scheduled a reprieve/commutation hearing for February 27, 2013. Schad asked to attend the hearing and submitted materials in support of his request for commutation. (Doc. 1, Ex. C.) On February 26, 2013, instead of issuing its mandate, the Ninth Circuit granted Schad's request for a remand to this Court for further habeas corpus proceedings. Schad v. Ryan, No. 07-99005, 2013 WL 791610, *3 (9th Cir. Feb. 26, 2013). The Board thereafter cancelled Schad's hearing, and the warrant of execution expired.
In June 2013, the United States Supreme Court vacated the Ninth Circuit's remand order. Ryan v. Schad, 133 S.Ct. 2548 (2013) (per curiam). Subsequently, the Arizona Supreme Court issued a new warrant setting Schad's execution for October 9, 2013, and the Board rescheduled Schad's commutation hearing to October 2, 2013. (Doc. 1, Ex. D.)
On September 23, 2013, Schad's federal habeas counsel wrote to each of the four current members of the Board-Brian Livingston, John "Jack" LaSota, Ellen Kirschbaum, and Donna Harris-and asked that they recuse themselves from the October 2 reprieve/commutation hearing. The letter stated that a witness had indicated to Schad's counsel that Livingston and Kirschbaum, "and possibly others, engaged in an informal conversation wherein each specifically opined that he or she would never recommend clemency for Mr. Schad and expressed concern about what the Governor might think of such a recommendation." (Doc. 1, Ex. A.) The letter "alleged that this conversation took place shortly after the previous hearing for Mr. Schad was cancelled either in late February or early March, 2013." ( Id. ) The letter further stated that because Harris had only recently been appointed to the Board, she "cannot comply with the training requirements necessary to sit as a voting member" at Plaintiff's impending hearing. ( Id. ) Finally, the letter alleged that the Governor's office "has in the past sent letters addressed to Board Members expressing displeasure with certain board members votes in favor of clemency" and that certain members "have been summoned to meetings with members of the Governor's staff to express displeasure" with their votes. ( Id. ) Schad's counsel requested that each Board member respond in writing by close of business, Wednesday, September 25, 2013.
On September 26, 2013, Schad initiated this action by filing a civil rights complaint under 28 U.S.C. § 1983. In his three-count complaint, Schad sues the following Defendants: Arizona Governor Janice K. Brewer; Scott Smith, Chief of Staff to Governor Brewer; Brian Livingston, Chairman and Executive Director of the Arizona Board of Executive Clemency; and John LaSota, Ellen Kirschbaum, and Donna Harris, members of the Board. In Count One, Schad alleges Defendants have a created a clemency process that is arbitrary and capricious, in violation of the Eighth and Fourteenth Amendments. In Count Two, Schad alleges Defendants' failure to comply with Arizona's open meetings law violated his rights under the Eighth and Fourteenth Amendments. In Count III, Schad alleges Defendants conspired to deprive "high-profile inmates" access to executive clemency, in violation of the equal protection clause of the Fourteenth Amendment and, for death row inmates, the Eighth Amendment. In the Prayer for Relief, Schad seeks a declaratory judgment and temporary, preliminary, and permanent injunctive relief.
Schad attached numerous documents to his complaint, including written declarations from five former Board members. In opposing the motion for temporary restraining order, Defendants submitted numerous declarations from past and current Board members. Those submissions are summarized as follows.
Duane Belcher served on the Board for twenty years and was its Chairman and Executive Directive until replaced in April 2012 after his application for reappointment was denied. In his declaration, Belcher describes a meeting in early 2012 with two members of the Governor's staff, including Defendant Smith, during which he was questioned about the board's vote to recommend clemency in two "high-profile" cases-those of William Macumber and Robert Flibotte, whose clemency applications were ultimately denied by Governor Brewer. (Doc. 1, Ex. E.) "It was [his] opinion that the Governor's office wanted Board Members who would vote the wishes of her office, rather than vote their conscience, based on the facts and circumstances of each case." ( Id. )
Ellen Stenson served on the Board for five years until she too was replaced in April 2012 after her application for reappointment was denied. According to Stenson's declaration, during her 2012 interview for reappointment, Defendant Smith asked whether she stood by the Board's 2009 unanimous vote to recommend clemency for Macumber. (Doc. 1, Ex. F.) She answered affirmatively and believes her 2009 vote "in combination with my interview response that I did not regret my 2009 vote and my indication that I would likely vote the same way, if given the chance, influenced the Governor's decision to oust me from the Board." ( Id. )
Marilyn Wilkens served on the Board for approximately two years and was the third member replaced in April 2012. In her declaration, Wilkens asserts that, during her 2012 interview for reappointment, Defendant Smith expressed dissatisfaction with her vote to reduce the sentence of Flibotte, a 74-year-old first-time offender who had been sentenced to prison for ninety years for possession of child pornography. (Doc. 1, Ex. G.) According to Wilkens, Defendant Smith became "agitated" and told her in a raised voice that she had "voted to let a sex offender' go." ( Id. ) Wilkens concludes that she was not reappointed because "the Governor's office does not want to receive clemency recommendations from Board members in high-profile cases." ( Id. )
Melvin Thomas was appointed to the Board in April 2012 and resigned on August 5, 2013. Thomas asserts in his declaration that he was aware that "the three Board members who left before me were forced out because each one of them had recommended clemency in one or more cases that got sent up to Governor Brewer." (Doc. 1 at H.) He claims that he once saw a letter from the Governor's office to an unnamed Board member relaying the Governor's displeasure about a Board vote. ( Id. ) Thomas further claims that Jesse Hernandez, who replaced Belcher as Board Chairman in April 2012, informed Board members on more than one occasion that Governor Brewer either had been unhappy with a vote or would be unhappy if the Board voted a certain way in an upcoming case, and that Hernandez got this information from the Governor's office. Nonetheless, Thomas asserts that all of his votes while serving on the Board were dictated by his conscience and that he was unconcerned about losing his job as a result of how he voted. ( Id. )
Jesse Hernandez served as Board Chairman from April 2012 until his resignation on August 16, 2013. In his declaration, Hernandez claims that he learned shortly after taking office that the Board "is not independent from the Governor." (Doc. 1, Ex. I.) "Not long after I was sworn in, I was called to the first of several come to Jesus' meetings with Scott Smith and other individuals representing Governor Brewer." ( Id. ) According to Hernandez, he was lectured about the Governor's policy to be tough on crime and was told, "We don't want another Macumber or Flibotte." ( Id. ) Hernandez understood this to mean that he was expected to vote against clemency in "particular kinds of cases." ( Id. ) He further asserts that during his short time on the Board, "the other members understood clearly that they risked losing their jobs if they voted contrary to the Governor's wishes" and that current Board member Ellen Kirschbaum said, "What would the Governor think?" in response to Hernandez's remark that she was "always a no" vote. ( Id. ) Finally, Hernandez claims that after Schad received a stay of execution in early 2012, Hernandez overheard Kirschbaum, Melvin Thomas, and (current Board chairman) ...