Begging Your Pardon

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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.

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Paul Rubin
Contact: Paul Rubin