Begging Your Pardon
Michael Hester awoke January 21 inside an Arizona state prison, where he's been for the past eight years. The 54-year-old Vietnam veteran is doing time -- lots of time-- for selling about $50 worth of crack cocaine to an undercover cop.
Talk inside the prison at Florence that morning concerned a pair of politicians, Bill Clinton and J. Fife Symington III. On the last day of his presidency, Clinton had pardoned the former Arizona governor, meaning Symington will not be retried on charges of lying to obtain millions of dollars from lenders and union pension funds. A jury earlier convicted Symington of the charges, but an appellate court ordered a retrial in the celebrated case.
The ex-governor's privileged dodging of criminal accountability did not escape Hester, who has served his time wisely, educating himself and staying out of harm's way. Hester, in fact, is obsessed with Fife Symington, and for good reason.
Before Symington's own criminal charges forced him to resign from office, the ex-governor made a name as a law-and-order type. As such, he did his best in 1995 to ensure Hester would stay locked up for at least 25 years. Symington did so by rejecting the unanimous recommendation of the Arizona Board of Executive Clemency -- hardly a panel that coddles criminals -- to commute Hester's sentence to nine years.
But the ex-governor's best may not have been good enough.
Using a novel legal tactic, Hester went on to argue in federal court that Symington didn't file his rejection notice with the Secretary of State. That, the inmate claimed, meant the ex-governor's decision never had become "official," and the clemency board's recommendation should have been binding.
At first blush, it sounded like a stretch, a mere legal technicality. Prisoners routinely sue the government, and seldom win. But Mike Hester did.
In a stunning ruling issued last August 22, U.S. District Court Judge John Sedwick decided that Hester was right. The judge's ruling means that Hester will be freed this December unless the state wins a stay with the Ninth Circuit Court of Appeals.
State solicitor general Scott Bales warns that, if the ruling does stand, dozens of Arizona inmates in situations similar to Hester's may also may be able to appeal their sentences and shorten their prison stays.
"You have the prospect that this ruling may lead to countless commutations, which we don't believe is right or legal," says Bales, who works for the Arizona Attorney General.
But Maricopa County Superior Court Judge Ron Reinstein -- who served on a mid-1990s committee that considered the inequity of sentencing in cases such as Hester's -- says he wonders "what Fife [would] do now in cases like this one, now that he's been on the other side of things as a criminal defendant himself. Would he show more compassion?"
Symington's not saying. Through his attorney, John Dowd, he declined to talk about the Hester case.
"Born 1948 in DeRidder, Louisiana, in my grandmother's back bedroom, my mother tried to kill me with her foot, and my grandmother saved my life."
-- from a letter written by Michael Hester
Michael Hester says he's been writing a book, to be titled The Adventures of the Holy Boogie Master (My Life at 46 2 RPMs). It's an apt title to describe his saga, which transcends his extraordinary legal battle.
Hester's tale mirrors the tumultuous times in which he's lived: He is a black man from Louisiana who became a campus radical during the turbulent late 1960s, before the Army drafted him. Hester then served honorably in Vietnam, but says he got hooked on cocaine during his year there. Later, he managed the famed Pointer Sisters, and became San Francisco's top-rated disc jockey. Eventually, though, he lost everything, including his freedom, to drug addiction.
These days, prison records indicate he's a model inmate. "He's a fairly imposing figure, balding, very clean-cut, looks like ex-military," says David Taylor Shannon, an assistant federal public defender who assisted Hester in his court battle against Fife Symington. "He's in good shape, and there's an intelligence in his eyes. He came into our first meeting with a bunch of paperwork, and I realized that he'd put tremendous effort into learning about and studying the system that has him trapped unjustly."
Hester is unusual among convicts in that he shoulders blame for many of his past troubles. In one letter to New Times, he wrote, "I have always maintained my innocence throughout all proceedings, not to be confused with claiming to be an angel."
Hester was born in 1948 to a father in the Army Air Corps and a mother who was the daughter of poor Louisiana farmers. He says his mother left his father in the early 1950s, and that his maternal grandmother raised him during his formative years.
Hester later moved with his mother to Tucson, where she remarried. He attended Pueblo High School, did reasonably well in school and was a star wrestler. Hester was awarded an athletic scholarship to the University of Arizona after his graduation in 1966. He says he wanted to study law (that would have to wait), then decided the fine arts were more to his liking. Always a smooth talker, Hester found work on the weekends as a radio disc jockey.
In the summer of 1967, Hester had a memorable chat with a member of the Black Panther Party. "I learned about the Revolution, and the part I had to play in it," he recalled in a recent letter. Hester started the Black Student Union at the university, and says, "It was not long before the Revolution consumed my every hour and every thought. My grades suffered almost as much as my people."
News clippings show Hester was quoted after several campus protests. After a 1968 run-in with the university president, he told the Tucson Citizen, "On every other campus, they are using violence. But here we are doing something constructive, and the [administration] won't respond."
Hester took a semester off in the fall of 1968, and the Army soon drafted him. He was inducted into service on February 13, 1969, at the age of 20. He got shipped to Vietnam in January 1970, where he was a radio message router in the battlefield.
Hester summarizes his war experience: "Never ran to Canada, never dodged anything -- except bullets -- as I fought for my country in a crazy war. One year, 12 days, 45 minutes, and 27 seconds later my flight left [for the States]. I had gotten a field commission, Sergeant E-5. I was also packing some unwanted luggage -- a drug habit."
After his honorable discharge in December 1971, Hester went to work through an Army-sponsored program for KSAN, a popular San Francisco radio station. That turned into a gig as the morning weekend jock. Along the way, he met the musical Pointer Sisters. Hester became their manager for a stretch, and later promoted music shows in the Bay Area and elsewhere. But drugs were ruling his life.
"My drug use was an everyday thing," he says. "Cocaine was my personal friend."
Hester later worked as a prime-time radio announcer in San Francisco, Los Angeles and San Diego. He was glib, hip and hot. A newspaper clip from 1978 listed him as San Francisco's number-one ranked radio talent.
But his luck ran out that year, when narcotics agents arrested him for his role in a multistate cocaine ring. A judge sentenced Hester to 30 months in prison after his conspiracy conviction. Records indicate he spent about six months behind bars, then bounced from job to job in the 1980s.
Hester says he made sporadic attempts to go straight, but his bond with cocaine remained inviolate: "It was just a matter of time before something was going to give."
It was. In 1988, Tucson police again arrested Hester on a charge of possessing a small amount of cocaine. He was convicted and sentenced to four years in prison. He served almost three years before being paroled in March 1991.
One year later, in March 1992, Tucson police charged Hester with selling about $50 worth of crack to an undercover agent. Hester decided to take his chances at trial rather than accept a plea bargain, which was an extremely risky proposition.
Arizona laws at the time dramatically increased sentences for repeat offenders, especially those already on probation or parole. That list included all cocaine dealers, from lowly street seller to kingpin. Authorities also hoped to dent the illegal drug industry by nailing dope dealers with mandatory minimum sentences.
The results of the tougher laws soon became evident: In 1983, according to the National Institute of Justice, one in 11 inmates nationally was serving time or awaiting trial for a drug crime. By 1997, it was one in four -- and that was specific drug offenses, not, say, a murder committed during a drug deal.
A jury in 1992 convicted Mike Hester of selling crack to the undercover cop. Because Hester still was on parole from his 1988 drug conviction, he faced an automatic life sentence. On November 23, 1992, Hester stood before Pima County Superior Court Judge Bernardo Velasco and blamed racism for his plight.
"Michael Hester," Velasco responded, "you were found guilty by a jury on those two counts, not because you are a black man, not because you were on parole, [but] because a jury of your peers was able to evaluate the evidence presented to them by the state, and the evidence presented by you, no doubt in part because of your totally incredible testimony, not worthy of belief."
"Worthy of belief because I am educated?" Hester interrupted. "I don't understand."
"No, excuse me, sir, not worthy of belief," Velasco replied. "You think you are educated, you may think you sound educated, but when it comes time to listen to the words and evaluate them, it doesn't work. You are to be committed to the custody of the Arizona Department of Corrections for a life term without possibility of release on any basis until 25 years have been served."
That would be the year 2017, when Hester will be 68 years old.
"The sentence-review process in question was never in my view a very good idea. I have never believed that the state owed any additional breaks to criminals already convicted and sentenced. America has come to be a crime-ridden society, with various liberal elites and media outlets perpetually portraying common criminals as victims of society, victims of difficult childhoods and now, victims even of a governor who reviews their individual profiles before rubber-stamping some process devised to hasten their return to the community. I refuse to do that."
-- Fife Symington, in a July 1995 opinion piece written for a Phoenix newspaper
Arizona was undergoing a sea change in its criminal-justice system during the early 1990s. Backed by Fife Symington, the Arizona Legislature had enacted new laws that called for inmates convicted after January 1, 1994, to serve at least 85 percent of their sentences. That contrasted with the so-called "soft" time -- half or two-thirds of imposed sentences -- that many inmates had been serving.
The Arizona Legislature knew the new laws meant most prisoners would be serving more time, and reduced the length of sentences for some crimes, primarily those considered "nonviolent." In that vein, the law no longer allowed prosecutors to seek "kingpin" penalties unless someone had sold more than a specified amount of cocaine.
The sum of Mike Hester's two crack sales to the undercover cop wouldn't have met the new "threshold amounts."
Truth was, if Hester had been charged in 1994, he wouldn't have been sentenced to life in prison. Instead, he would have faced about nine years, precisely what the clemency board recommended to Symington in 1995.
The unfairness of cases such as Hester's struck many legislators. To that end, the lawmakers sought to level the playing field. They convened a study committee of police officers, attorneys, corrections officials, judges and a former governor (Raul Castro), whose mission was to figure out a way to do that.
Says Dave Derickson, a Phoenix attorney and former Superior Court judge, "We basically did away with the [enhancement punishment] laws, and we did a lot of talking about the small-fry crack dealers -- generally young black men -- who were getting long terms. Even the prosecutors on the committee started to see that the laws as they were being used were racially discriminatory."
Committee member Ron Reinstein recalls "the most compelling stories we heard on the committee were about those small-time drug abusers and dealers who were getting the book thrown at them. We talked about that a lot."
The committee devised a plan, which would become law: Let the clemency board review the sentences of certain inmates sentenced before December 31, 1993. The board could suggest commutation of an inmate's sentence, and the governor would have the final say.
The new law stipulated that Symington would have 90 days to accept or reject unanimous recommendations from his board. If the governor didn't do anything, the board's recommendations automatically would take effect.
"We put in that 90-day rule because the granting of commutations could be potentially embarrassing for the governor," says current board member Duane Belcher Sr., who also served on the study committee. "We saw that armed robbers and murderers were walking around the street, while many minor-league druggies were serving life sentences. We weren't asking the governor to release everyone, just to make things fairer. Things definitely needed fixing."
Prisoners who applied for review with the board had to have been convicted at trial -- no plea bargains were reviewed. Most violent criminals, and those who had committed "dangerous" crimes against children wouldn't qualify, though some so-called "nonviolent" child abusers could be considered. The reviews were to be completed by the end of 1995.
About 2,400 inmates, including Mike Hester, filed applications with the eight-person board. In the first phase, the board determined whether an inmate's sentence was "clearly excessive" compared with similar crimes committed under the new laws. If so, the board would meet with that inmate, after which it would make a recommendation to Symington, or simply deny the application.
About 1,500 cases passed the first phase. The second phase was more rigorous, as the board considered, among other things, whether a given inmate had a "substantial probability" of staying straight after being freed. That's always a crapshoot, and clemency boards usually err on the side of caution.
And no one could accuse this panel of being liberal: It consisted of longtime corrections officials, a career cop and ex-lawmakers with impeccably conservative credentials, such as Stan Turley -- a Symington appointee who served 22 years in the Arizona Legislature, including stints as Speaker of the House and President of the Senate.
The clemency board held hearing after hearing for months, often working well into the night. Of the 1,500 inmates who made it to the second phase, the board would send 216 recommendations to Symington for possible commutation of sentence. Hester earned one of the unanimous recommendations.
Mike Hester appeared before the clemency board on March 7, 1995. Kathryn Brown, a longtime Department of Corrections supervisor, asked him why his sentence should be commuted.
Hester said he'd been represented poorly at his criminal trial, and still was trying to prove his innocence. He told the panel he'd completed paralegal training by mail, and was helping other inmates with their appeals.
"I have made every attempt that I can to adjust to what has been done to me," he said calmly. "I'm not trying to minimize my offense. I realize that being involved with drugs is wrong."
But why should we recommend commutation, Brown persisted.
"Why should it happen? Because it was basically unfair. It was disproportionate to other sentences around the country -- and it has been considered by the Legislature to be wrong."
Stan Turley told Hester bluntly, "You took this to trial, and got hit with a big number."
"I thought I was going to die," the inmate said of the moment in 1992 when Judge Velasco sentenced him to life imprisonment.
Hester spoke of his drug addiction, mentioning his experience in Vietnam.
"I got it all taken away from me when I was in college," he told the board, "and I was put in a position where I had to fight for my life every day. When I came back, my entire outlook on life was different. I was beat down with race, lack of money, and that caused me to go back to [drugs]."
Hester's mother and a longtime friend, Tucson schoolteacher Olivia Oros, also spoke on his behalf.
As the hearing ended, the board voted unanimously to recommend commutation of Hester's sentence to just more than nine years.
Because of the heavy backlog, however, the board didn't tell the governor's office until June 7, 1995, three months after the hearing. From that date, Symington had 90 days to decide Hester's fate, or the board's recommendation would become law.
On August 31, 1995, Symington rejected the panel's recommendations regarding Hester and 25 other inmates. But the governor's name appeared nowhere on paperwork provided by the board. Instead, policy advisor Maria Baier initialed the denial on her boss's behalf.
The clemency board informed Hester of the bad news. The inmate soon responded by sending Symington a bitter letter:
"When I was asked to serve my country, I did so without question . . . I deserve no less than any of this state's citizens. I am in no way trying to minimize the alleged offense against me for my past indiscretions. However, due to the extreme disproportionality of my sentence, I do now question your motivation for your decision and request an explanation of your discrimination towards my particular case."
Hester says he never heard back from the governor or his minions.
But Symington's decision against Hester shouldn't have come as a surprise.
In the end, the governor would commute the sentences of just 14 of the 216 inmates the board had recommended.
In one of those 14 cases, the board had recommended commutation of Darius Alexander's sentence from life to 10 years. In 1991, Alexander, then a 20-year-old black man, had been convicted of selling $20 worth of crack cocaine. Like Hester, he was on probation at the time, for theft and drug possession. One difference was a note in Alexander's file from the judge who had sentenced him: "The court finds that the sentence imposed was disproportionate to the crime and, given the opportunity to do so, would have imposed a less severe sentence."
Symington also commuted the sentence of Juan Felix-Garabaldi from life to 19 years. The Tucson man had been convicted of two counts of negligent homicide after a December 1991 car crash in which he broadsided a car whose driver had run a stop sign. Though the accident wasn't all his fault, Felix-Garabaldi had been speeding and was driving under the influence of alcohol. He was on probation for a burglary at the time, which had kicked in the enhanced sentence. It may have helped Felix-Garabaldi that the victims' families said a life sentence seemed too long.
Symington also showed leniency to AzScam figure Ron Tapp, an ex-lobbyist and bail bondsman who had been serving 10 years in prison on a bribery charge. The commutation led in 1996 to Tapp's early release.
Board member and Symington appointee Duane Belcher says he and his colleagues were gravely disappointed with the governor's negative response to their efforts.
"We felt we had an insight into the cases that he couldn't possibly have," Belcher says. "We were seeing and talking to the inmate, as well as studying the paperwork. But he was the governor, the politician. We were just a recommending body."
Stan Turley puts it more pointedly: "I don't recall Mr. Hester's case, but I'm sure it was one of the travesties of justice we had to deal with at the time. I'm a capital punishment kind of guy -- check my record -- but if a guy goes in [prison] and straightens out, and he got way too long of a sentence to begin with, give him another chance someday. I lost my respect for Fife during this. It's been a burr in my saddle for a long time. I'm glad [Hester] eventually won his case, and I hope he has a good life in front of him."
Says attorney Dave Derickson, "Fife just shot the parole board down, which was constitutionally appropriate, but made everyone's hard work leading up to it seem like a waste of time. You have to remember, strange as it sounds now, Fife was being mentioned as a presidential candidate in those days. He wasn't about to look soft on crime."
The governor shall keep the following: A record of his official acts.
-- Arizona Revised Statute 41-102
All official acts of the governor, except approval of the laws, shall be attested by the Secretary of State.
-- 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.
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?"
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."
Solicitor general Scott Bales says the state of Arizona will appeal Sedwick's ruling.
"It's important to note that the governor didn't want to commute [Hester's] sentence, which everyone agrees was his prerogative," he tells New Times. "The governor didn't have to do a thing to let the board know what he had decided on a given inmate unless he wanted to, which he did in this instance through an aide. What Governor Symington did was legal."
Bales points out that the Arizona Court of Appeals rejected a Hester-type argument last November in a case involving inmate Kevin McDonald. The Phoenix man is serving a life sentence on an aggravated assault conviction, though the clemency board in 1995 unanimously recommended a reduction of his sentence to eight and a half years.
That ruling is being appealed on McDonald's behalf by attorneys with the Justice Project, a consortium of volunteer attorneys.
Mike Hester says he's eager to start a new life this December. That is, if the state of Arizona isn't able to keep him incarcerated until the appellate issues are decided. He's uncertain what his future on the outside might hold, though he says it surely will have something to do with the law.
"I am drug-free for eight years," he wrote a few weeks ago. "If you know anything about drug rehabilitation, then you know that the only freedom is getting away from all that caused your problems."
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