"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."