Family seeks to overturn governor's commutation

[September 07, 2012]  SACRAMENTO, Calif. (AP) -- A Sacramento County judge will hear arguments Friday over whether former Gov. Arnold Schwarzenegger violated California law when he cut the manslaughter sentence for the son of a political ally just hours before he left office last year.

Lawsuits filed by the San Diego district attorney and the victim's family claim Schwarzenegger violated voter-approved Marsy's Law because he did not notify the victims' families or the district attorney who prosecuted the case that he was cutting the sentence of Esteban Nunez from 16 years to seven.

Schwarzenegger issued the commutation hours before he left office in January 2011 and just months after the sentencing of Nunez, the son of the governor's political ally, Fabian Nunez.

The attorney general's office, arguing on behalf of Schwarzenegger, has sought to have the case thrown out several times, and will do so again on Friday. Its attorneys argue that Marsy's law does not apply to a governor's power to pardon and commute sentences and say he had "unfettered discretion to grant clemency without judicial review."

The AG's office argues in briefs filed this month that the plaintiffs are seeking resolution of a political question, rather than a legal one.

Esteban Nunez pleaded guilty to voluntary manslaughter in a 2008 attack on an unarmed group of young men after Nunez and some friends were turned away from a fraternity party. Three others pleaded guilty to various charges in the attack that killed 22-year-old college student Luis Santos.

Attorneys for the Nunez family and San Diego District Attorney Bonnie Dumanis say Schwarzenegger blatantly violated the state constitution with his last-minute decision, ignored the victims' due process rights and acted "in an arbitrary and capricious manner."

There is also evidence that Schwarzenegger generally required that his office follow the provisions of Marsy's law, which voters approved while he was in office in 2008, when he considered other clemency cases, deputy district attorney Laura Tanney wrote in a brief filed this week.

"Schwarzenegger knew the law, he knew exactly what was required of him, and yet he defied the oath of his office," Tanney wrote.

"Perhaps, if Schwarzenegger had all of the information, he would have been forced to listen to his conscience and the conscience of the community, and he would not have been able to reduce Nunez's sentence by more than half. But he believed he was above the law; he was not. His actions were unconstitutional and should be declared void."

A judge last year combined lawsuits by the family and DA's office, both of which seek to overturn the commutation and restore the original 16-year sentence for Nunez.

Esteban Nunez, who is now 23, is incarcerated at Mule Creek State Prison in Ione, about 50 miles southeast of Sacramento. His father is a political consultant in Sacramento.

Current Gov. Jerry Brown in October signed a bill that was written in response to the controversy over Nunez's commutation. It requires the governor to give at least 10 days' notice to the district attorney in the jurisdiction where the crime occurred before acting on an application for clemency. That would give the district attorney time to notify crime victims and allow them to petition against a sentence reduction.

[Associated Press; JULIET WILLIAMS]

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