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Judge refuses to block scheduled Arizona execution

PHOENIX -- A judge is refusing to temporarily block an Arizona execution to give the inmate's lawyers time to prove the state clemency board can't give him a fair hearing because of interference from Gov. Jan Brewer's office.

The state's lawyers had urged U.S. District Judge Roslyn Silver to deny the request to postpone the scheduled Oct. 9 execution of Edward Schad.

Silver ruled Tuesday night after holding a three-hour hearing that lasted until after 7 p.m. and that included testimony from three former members of the Arizona Board of Executive Clemency.

Silver's brief order refusing to grant a temporary restraining order said Schad's lawyers hadn't shown they're likely to prevail on their claim that Schad cannot receive a fair clemency hearing.

Schad's lawyers reacted by filing a notice Tuesday evening that they're appealing Silver's order to a higher court.

The clemency board is scheduled to hold a hearing Wednesday morning on Schad.

During the hearing late Tuesday, two former board members testified they believed they lost their jobs because they voted for clemency in two high-profile cases, and also said Brewer's chief of staff was angry about the requests, which Brewer denied.

The third, who was appointed by Brewer last year and resigned over the summer, spoke about a partial letter he was shown that he believed was intended to warn him about voting for clemency in some cases.

Schad's lawyer, assistant federal public defender Kelley Henry, told Silver that their testimony showed that Brewer and her staff leaned on board members to influence their vote.

"I think we've made a ... case that members of the governor's staff are interfering with the clemency process," Henry said.

Assistant Attorney General Kelly Gillian-Gibson said Schad's lawyers hadn't shown current board members weren't impartial.

She called three current members, including chairman Brian Livingston, who all said they weren't pressured by Brewer or her staff and acted independently.

"I didn't take the job to be biased," Livingston said.

The board is charged with reviewing clemency applications, and Brewer can't act without a positive recommendation by the board.

Silver seemed skeptical of Henry's arguments during the hearing, but she did order the state to search for the purported letter former board member Melvin Thomas said he was shown.

Schad, now 71, was convicted of killing 74-year-old Lorimer "Leroy" Grove of Bisbee in August 1978 but has maintained his innocence.

Grove was last seen leaving Bisbee in a Cadillac that was pulling a trailer on his way to visit his sister in Washington state. Eight days later, his body was found south of Prescott in underbrush off the shoulder of U.S. 89.

Authorities said Schad drove Grove's car across the country for a month, used Grove's credit cards and forged a check from the victim's bank account. He was arrested in Utah about a month after the killing.

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