Otherwise, he says his struggles are the normal kind, like trying to make ends meet despite sluggish sales. "I'm real comfortable out here," he says, although occasional glimpses of uneasiness emerge.
"We going to go back into that?" he objects when I ask him about his crime. "I feel like I'm always on trial," he says by way of explaining why he'd rather not. "When I went up for clemency, they retried the whole case." Gardner says he thinks the clemency board should look at "who an individual is now," not what happened one night many years ago. But after attending two other clemency board hearings besides his, including that of Barry Massey, he has concluded that board members see it differently. "They retry everything."
Barry Massey, in a photo from 20 years ago, was sentenced to life in prison for a crime he committed at age 13. Gov. Gregoire recently rejected a clemency board recommendation that he be set free
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"Why did you confess?" clemency board member John Turner, then Marysville's interim chief of police, now with the Snohomish Police Department, asked Massey at his September hearing.
"At 13, I was scared," Massey replied, his voice still uneven as he talked by phone from the Monroe prison. "I was scared of Mike a little bit." Mike Harris was the 15-year-old with whom Massey entered Paul Wang's Steilacoom store. "He was my friend. I took the blame, not really understanding the consequences."
"I'm going to ask you again specifically," said Turner, "did you shoot the gun or do the stabbing?"
"No, I did not," Massey said.
And so it went, questions flying from not only Turner but fellow board members Raul Almeida, captain of a private patrol that monitors the Hanford nuclear waste site; onetime defense attorney Margaret Smith; and Cheryl Terry, wife of a slain police officer. They asked why he didn't stop Harris, what was going through his head when the killing occurred, what he did immediately afterward, and after that. Massey described feeling shock as he heard gunfire; staying put until Harris told him to start grabbing stuff; running up a hill through the mud; Harris telling him not to say anything because the older boy had been in trouble before; getting caught; and asking futilely for his mother.
Deputy Prosecutor Gerald Costello expressed his irritation plainly. "We're not here to retry this case today," he said. The jury had rendered its verdict. Going back over the details of the crime was a specious attempt to downplay Massey's role, he argued, and "outside the scope of what the board should consider."
His boss, Pierce County Prosecutor Gerald Horne, elaborated on this objection in a letter to the governor after the board voted to recommend clemency. "The Board's mistake is understandable," he wrote. "There was no standard in place governing their decision making. Not a single rule or guideline existed." Nonetheless, he opined, "Procedurally, it is disastrous in any case for the Board to consider evidence designed to show that a jury returned the wrong verdict. There is no opportunity for cross examination of testifying 'witnesses.' There is no standard of proof. No witness lists are delivered. No evidence rules exist to govern reliability of the evidence submitted."
Currently, the board is putting the final touches on a set of policies that will address procedural questions such as this. However, they are not expected to change the board's open-ended mode of operation. "Basically what they say is that the board does not intend to retry facts but [board members] do not limit themselves," says Kate McLachlan, a state assistant attorney general who is counsel to the board. "We have an obligation to consider everything that somebody wants us to hear," says board member Turner.
"It's almost a macabre joke among lawyers that the worst defense is actual innocence," notes David Boerner, a Seattle University law professor who helped write the state's Sentencing Reform Act. "Courts won't review that," he says, at least not past certain deadlines for reviewing new evidence. So the clemency process can be a person's only forum.
Law professor Kobil says also that jurors can vote for guilt without realizing the consequences for the defendant, something that might have changed their minds.
Board member Smith, in fact, asked the deputy prosecutor whether jurors knew that the teenage Massey would be imprisoned for life should they find him guilty. "I'm fairly certain not," Costello said.
For him and his boss, the important fact is that aggravated first-degree murder carries a clear penalty set by the Legislature. "The public's will," he kept calling Massey's life sentence. Yet the existence of clemency forces the board and governor, at least in individual cases, to think anew about a difficult question: How much time in prison is enough?
The Monroe Correctional Complex occupies the top of a hill, surrounded by a broad, sloping lawn. Recessed Ionic columns line the long, rectangular building that sits in front, so that it seems more like a courthouse or perhaps a library than a prison, but in fact among the four facilities located here is one of the most closely guarded in the state: the Washington State Reformatory. The cells inside are stacked four tiers high, and roughly half of the 875 inmates—who sleep with their feet to the bars and their heads toward the toilet for safety's sake—are convicted murderers.
