Begging Your Pardon

Fife Symington's free and Michael Hester's not. But thanks to the ex-governor's oversight, that may soon change.

-- ARS 41-101 (B)

After Symington shot him down, Hester faced the likelihood of spending another 20 years or so behind bars. But Hester says that "when I finally got out of my blue funk, I decided to make the law work for me."

He says his legal research led him to something called a federal writ of habeas corpus, which he decided to pursue. Writs are extraordinary remedies, and usually are allowed only when a defendant or inmate has run out of other legal options.

Michael Hester, with "Father Guido Sarducci," circa 1978.
Michael Hester, with "Father Guido Sarducci," circa 1978.

But appellate courts rarely overturn a trial judge's sentencing of a defendant. An inmate may have a slightly better chance, but only slightly, if the judge lacked discretion in sentencing, such as happened in Hester's case.

In December 1997, Hester filed a federal writ that challenged his state conviction.

Hester said Symington hadn't signed anything to indicate he'd even looked at the clemency board's file, nor had he "officially" registered his decision to deny commutation with the Secretary of State -- which is an Arizona law.

A judge soon dismissed the case, saying the inmate had to exhaust his state appeals before turning elsewhere. But that judge left Hester the chance to amend, then refile his complaint. A year passed, and another judge, John Sedwick, said he wanted to hear more. Sedwick lives in Alaska, but was a visiting judge in Tucson at the time.

The state of Arizona's attorneys argued that it was unreasonable and legally unnecessary for Symington to have had to do what Hester was complaining about.

"In Hester's case," wrote assistant attorney general Eric Olsson, "having decided not to follow the board's recommendation, Governor Symington let the board know of his decision, but he had no "duty' to personally sign or have attested any "official act' to that effect."

Judge Sedwick, however, concluded that if he didn't review Hester's claim, a "fundamental miscarriage of justice" might result. The judge reiterated, however, that Hester had no right to have the merits of Symington's clemency decision reviewed.

Sedwick held an evidentiary hearing in Tucson on May 11, 2000. Hester listened as the judge took testimony from clemency board employees, an aide to Symington, and the ex-governor himself.

Board secretary Daisy Kirkpatrick said that, before the 1995 reviews started, she'd designed a form for Symington or a representative to initial, which indicated the governor's decision on whether to grant or deny commutation.

"And you [did] that because you were . . . getting proclamations back from the governor's office with just a red X drawn through them, right?" asked Hester's court-appointed attorney, David Taylor Shannon.

"Right," Kirkpatrick replied. "We had no signature. We were just told if it had a red X it was a denial. So we decided we weren't going to go on that way."

"In fact, at one time you got a business card from the governor's office just with [Symington aide] Maria Baier's signature on it denying a clemency?"

"Right."

Baier, an attorney, testified she'd advised Symington about potential commutation cases that had poured into the governor's office in 1995. She described an informal process in which she would communicate to Symington about pending cases, verbally or in writing. Baier said she didn't recall Hester, but insisted she never would have made any decisions about commutation on her own.

"The word "denied' reflects the will of the governor on this issue," testified Baier, an articulate woman to whom famed author Hunter S. Thompson once dedicated a book. "I would never constitute my will for the governor's will."

But Baier, not Symington, had signed the 26 denials of commutations on August 31, 1995.

"It is simply beyond belief," attorney Shannon later countered in court papers, "that Ms. Baier could have kept all these cases and the related communications clear in her mind over the months that she and the governor allegedly worked on them."

Symington then took the stand and quickly rejected Shannon's suggestion that Baier had been making the calls.

"Maria was my policy advisor," he testified, "and I also asked for her opinion and recommendation, but I did not grant her the authority to make any final decisions. I made the final decisions."

Like Baier, he said he didn't recall Mike Hester's case.

Because Judge Sedwick is from Alaska, no one locally had much of a feel for how he'd rule. But a scanning of his record indicates that he's not known for being soft on drug defendants. Last month, for example, the judge sentenced a marijuana grower to 17 years in prison, saying the man had "showed contempt for the rule of law stretching back over four decades."

Judge Sedwick announced his decision last August 22.

"If the governor did not effectively reject the board's unanimous recommendation," he wrote in a 25-page ruling, "then Hester's sentence exceeds that authorized by state law. The failure to record the governor's act rejecting the [recommendation] and to have his act attested renders the governor's act ineffective. It makes no sense to say that, in the 14 cases where he accepted the board's recommendations, the governor was acting officially, but in the balance of cases where he rejected the recommendations he was acting "unofficially.'"

Though the judge said he believed Symington had, in fact, examined Hester's file, he added "reasonable people who sat through the hearing and viewed the record evidence might legitimately question the court's conclusion. It bears emphasis that there was not so much as an initial, stamp, seal or signature from anyone which established that Governor Symington ever saw Hester's file."

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