On May 8, 2007, the Arizona Board of Executive Clemency met to consider whether to grant commutation or reprieve to Robert Comer, who is currently scheduled to be executed on May 22 at 10:00 a.m. The Board voting Board members included Duane Belcher, Jr., Chairman and Executive Director; Mirian Yim; Olivia Meza; and Tad Roberts. The remaining Board member, Ellen S. Stenson, was present but not voting because she had recently joined the Board.
Mr. Comer was not present at the hearing. Mr. Comer has "volunteered" for his death sentence by waiving all remaining appeals. Since 2000, Mr. Comer has indicated that he wants to be executed.
Mr. Belcher explained the difference between commutation and reprieve of a death sentence. By commuting the death sentence, the Board could grant a lesser sentence, such as natural life in prison. By granting a reprieve, the Board would delay the execution.
Michael Kimerer, the current attorney for Mr. Comer, spoke first. He explained that he had an opportunity prior to the clemency hearing to speak with his client. He noted that Mr. Comer wishes to waive all appeals and relief. He said that his client had a competency hearing, during which he offered cogent reasons for wanting to be executed. Finally, he noted that Mr. Comer regarded the reinstatement of his death sentence, which had temporarily been overturned by a panel of the 9th Circuit Court of Appeals, as a victory.
Juan Martinez, representing the Maricopa County Attorney’s Office, spoke next. He told Board members that Mr. Comer set out on a "rampage" of crime. He said it was noteworthy that Mr. Comer himself described his offense as "cold and callous."
Before accepting comments from the public, Mr. Belcher noted for the record that individuals had submitted written statements opposing Mr. Comer's execution and requesting the Board to grant relief. Among the written statements were letters from ambassadors to the United States from the European Commission, Germany, and Portugal and a statement from Middle Ground Prison Reform, a member organization of CAADP.
There were three other speakers: Jennifer Bedier, representing the Arizona Capitol Representation Project; John Todd, representing the Arizona Attorney General's Office; and Dennis Seavers, representing CAADP.
Ms. Bedier presented a book of documentation to the Board members and requested a reprieve of at least 90 days. She argued that Mr. Comer faced a substantial risk of suffering pain because he would be subject to lethal injection. She focused on questions that had been raised about whether lethal injection is a humane form of execution and described the process of lethal injection. She identified several other states that had formed commissions or panels to investigate recent evidence that lethal injection causes extreme suffering. She raised several questions about the Arizona Department of Corrections' procedures for executing by lethal injection. Ms. Bedier asked the Board to recommend that the governor grant a 90-day reprieve and form a panel to investigate whether lethal injection is inhumane and a form of state-sanctioned torture.
Mr. Todd from the Attorney General's Office spoke next. He argued that it was questionable whether the Board had the legal authority to grant a commutation or reprieve based on the issue of whether lethal injection is inhumane. Mr. Roberts, one of the Board members, interrupted Mr. Todd and said that he believed Board members should be able to vote according to their consciences if they had questions about the inhumanity of lethal injection. Mr. Todd characterized the objections to the death penalty in various appellate proceedings and in the clemency hearing as attempts to "raise questions" and cause "delays." He said that Mr. Comer's wishes should be respected, and the execution should proceed.
I spoke after Mr. Todd. I explained that I am the president of CAADP and described the organization. I noted that we represent numerous organizations, as well as many members, all of whom vary in size, political affinity, and belief. I asked the Board to commute Mr. Comer's sentence or, in the alternative, to grant a reprieve. I addressed Mr. Todd's comments by asking how we were subverting justice by raising questions, and I suggested that justice would be better served by raising questions and getting reliable answers to them rather than by sweeping them aside. I also said that it was disingenuous of the Attorney General's Office to suggest that it was interested in Mr. Comer's wishes. I said that the State is only interested in Mr. Comer being dead, not in respecting his wishes. I discussed waning public support for and mounting questions about the death penalty, citing, among other things, CAADP's 2000 survey and the Arizona Death Penalty Forum's 2007 survey, both of which showed that only a minority of Arizonans favor the death penalty when life imprisonment without the possibility of parole is a sentencing option (as it is in Arizona). I talked about volunteering for death as a sign of mental illness. In particular, I drew on my experience as a counselor in a mental hospital in Washington, D.C. I explained that wanting to die is a symptom of illness that should not be given credence by the Board, and I said that mental illness undermines freedom of conscience and choice. I concluded by asking the Board members to search their hearts. I said that the consequence of not granting reprieve or commutation—namely, Mr. Comer's death—was irrevocable. If in their hearts, the Board members detected the slightest doubt about whether executing Mr. Comer was the proper and moral course of action, I argued that they should listen to the calling of their consciences and grant Mr. Comer relief.
The Board members deliberated for about 10 or 15 minutes. During Ms. Bedier's testimony, they posed questions to Ms. Bedier and Mr. Kimerer about whether Mr. Comer understood that lethal injection might cause him suffering. Mr. Kimerer said that he had explained to his client that he might suffer. However, he said that he had not presented the amount of information to his client about lethal injection as Ms. Bedier had to the Board, and he said he would present the information to Mr. Comer. Mr. Belcher noted that the Board could reconvene if there were new testimony, essentially saying that the Board would consider Mr. Comer's reaction to the information Ms. Bedier had presented.
Mr. Belcher asked for a motion regarding commutation. Ms. Meza moved to recommend commutation of Mr. Comer's sentence. There was no second to the motion, so it failed. Ms. Yim made a countermotion to recommend that Mr. Comer's sentence not be commuted. Mr. Roberts seconded the motion, which passed 3–1. Ms. Meza voted against the motion.
Mr. Belcher asked for a motion regarding reprieve. Ms. Meza suggested that, if a reprieve were granted, a six-month rather than 90-day period might be more appropriate. After discussion of this time period and whether the Board could recommend that the governor form a panel to investigate the inhumanity of lethal injection, Ms. Meza made a motion to recommend a 90-day reprieve of Mr. Comer's death sentence. There was no second to the motion, so it failed. Mr. Roberts made a countermotion to recommend that Mr. Comer not be granted reprieve, and Ms. Yim seconded. The motion passed, 3–1, with Ms. Meza opposing the motion.
Mr. Belcher adjourned the meeting, but he reiterated that the Board could be reconvened to reconsider any new evidence.
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