PHOENIX — Saying he doesn't have a legal claim, the 9th U.S. Circuit Court of Appeals late Monday rejected the bid by Edward Schad to delay his scheduled Wednesday 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, has 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 legal basis for them to even 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.”
Even looking closer at Schad's claims, the judges were not convinced that his clemency hearing last week, where the board unanimously voted against any sort of reprieve, was subject to gubernatorial tainting.
They noted that U.S. District Court Judge Roslyn Silver, who had rebuffed Schad's attempt to delay the clemency hearing — and, by extension, his execution — found 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.” Nor were the appellate judges swayed by anything brought out by former board members.
A former chairman claimed that Scott Smith, now the governor's chief of staff, had called him for some “come to Jesus” meetings about some of the board's prior recommendations, telling him Brewer did not want certain kinds of high profile cases getting to her desk. Under Arizona law, a request for clemency can reach the governor only if the board makes such a recommendation.
Other board members said they believe from their meetings with Smith that they were not reappointed because of prior votes.
But the appellate judges also noted those same board members, in their testimony, never said they had been instructed to vote in any particular way. And the appellate court backed Silver's contention that the evidence about the failure to reappoint the board members “was not sufficient to raise due process concerns.”
Schad is running out of options to escape being put to death Wednesday following his conviction of the 1978 murder of Bisbee resident Lorimer Grove, whose body was found near Prescott. At this point, it would take U.S. Supreme Court intervention to stay the execution.
He had no better luck with a separate argument that he should once again be able to argue that he had been denied effective assistance of counsel.
In that ruling, appellate Judge Mary Schroeder said Schad wants to argue this time that his attorney failed at the time of sentencing to present evidence of the effect that his childhood abuse had on his mental condition at the time he committed the crime. Underlying that claim is the contention that evidence might have spared him the death penalty.
But Schroeder said her court already considered — and rejected — Schad's contention that his lawyer did not investigate child abuse. And the judge said this new claim, while worded a bit different, “is essentially the same” as the one he brought earlier.
That decision, however, was not unanimous. Judge Stephen Reinhardt said he considers the question of Schad's mental illness at the time he committed the crime “a new ineffective assistance of counsel claim.”
The rebuff of Schad on his clemency board claim also effectively kills a parallel bid by convicted murderer Robert Glen Jones Jr. who had intervened in this case to make the same claim of a tainted board. Jones is set to be executed later this month following his conviction of six murders in Tucson in 1996.