Threw Away the Key

Carl Maynard, 74, has spent three decades in prison for a crime that should have resulted in a much shorter sentence. And he'll die in prison unless Gov. Janet Napolitano signs a reprieve--something she's never done.

Three days and a loaded gun forever changed Carl Maynard's life.

It was 1976, and the United States was in the midst of the bicentennial. While the country celebrated, Maynard participated in a series of three armed robberies at two different Safeway stores in Tucson.

Today, Maynard is getting ready to celebrate his 75th birthday, in March. During his three decades in prison, he's survived cancer and has been a state driver for the prison system (from 1988 until 1996). He's reportedly been feeling the results of old age, gradually walking ever slower through the prison halls.

Maynard doesn't stand on a soap box declaring his innocence. When this Tennessee native talks about the past, he admits in his Southern drawl that he committed the crimes he was accused of in 1976.

"It was wrong, what I did," Maynard told one of the members of his legal team during a taped interview, done in prison last November. "Armed robbery just wasn't my thing. ... And I pulled a burglary and stole a couple of cars when I was a kid. I was on my own when I was 13 years old after my mother died. My dad was a bootlegger and everything, and him and me just didn't get along. Before I know it, I just run all over the country. Did just about everything to get something to eat ... ."

Maynard's words assure the other man in the room, Pima County Legal Defenders paralegal Michael Linick, that Maynard recognizes he's done wrong.

"Now, I think about it, the armed robbery," Maynard says. "It was wrong ... to be out there with a loaded gun in my hand. I could have killed a kid, or a woman, an innocent. It was stupid. Stupid. Stupid."

Linick says he did the interview on Nov. 15, 2007, after looking over Maynard's file. A county judge had asked the Legal Defenders office to look at a request Maynard submitted asking for assistance in obtaining his time-computation records and the statutes under which he was sentenced.

As Linick looked into Maynard's records, he questioned how someone could serve what amounts to a life sentence without parole for a robbery, when today, murderers are often eligible for parole after several decades.

Linick says he thought of Dr. Brad Schwartz, who was convicted in 2006 of conspiracy to commit murder. Schwartz hired Ronald Bruce Bigger to kill Tucson ophthalmologist Dr. David Brian Stidham. Schwartz got life in prison, but is eligible for parole in 25 years.

According to Linick, Maynard won't be eligible for parole until 2039.

"I see the injustice, and that is the only reason (I decided to look at Maynard's case)," Linick says. "I don't know Carl, and I'd never met him before Nov. 15. I just looked at the papers and said, 'What's going on here?'"

Linick wrote to Maynard and agreed to look at his case and meet with him at Manzanita, a prison unit in Tucson. Linick says it was important to know whether Maynard was a person for whom he

should fight.

"I don't want to go to bat for someone unless I know they are a good person. And

I don't want to put my reputation on the line or this office's reputation," Linick says. "He didn't hurt anybody; he didn't shoot anyone. ... I saw Carl got messed over by the system, and he's continued to get messed over by

the system."

After committing the armed robberies, Maynard made another mistake back in 1976: He trusted his attorney.

Maynard's co-defendants in the case each took plea agreements recommended to them by their attorneys. One pled guilty to a drug charge in another case, and all charges against him regarding the robberies were dropped. He was released from prison the next year. Another pled no contest to being an accessory to the crime. His conviction was treated as a misdemeanor, and he was placed on probation for one year, with one day of credit for jail time served. The third defendant pled guilty to two counts of robbery and received five years and one day in prison.

However, Maynard didn't take a plea, and his case went to trial. When it was over, he received three 30-to-50-year terms on three armed-robbery convictions. The judge decided these sentences would run consecutively, meaning that Maynard has to serve them one after another.

The code Maynard was convicted under, sometimes called "old code," went through a wholesale revision in late 1977, with a new code going into effect in 1978. The change in code could be enough to make a case for clemency or even an early parole. However, Maynard is not eligible for a suspension of his sentence, a commutation, probation, a pardon or parole until he has served the minimum sentence imposed for armed robbery: In other words, he must serve 90 years, minus work credit, before he is eligible for parole.

Maynard's current attorney of record, Alex Heveri, a criminal public-defense attorney with Legal Defenders, says she went to court for Maynard in 2004 to try to change his status after he filed a post-conviction relief petition with the court. Heveri says she worked to show the court that his original legal counsel was ineffective, but she was not successful.

"He was charged in 1976, and the attorney who represented him had handled a lot of these cases," Heveri says. "It wasn't anything out of the ordinary; it was an armed robbery. ... I argued that his attorney didn't explain the consequences of him going to trial and not taking the plea. If the attorney would have explained that to him properly then, he would have accepted the plea.

"There's very good supporting case law now. An ineffective assistance-counsel claim was never raised, but now it is recognized as a fundamental right in a criminal trial, since most cases are resolved with a plea."

Heveri says that even back in 1976, it was almost unheard of for a judge to hand down as harsh of a sentence as Maynard received. His attorney at that time reportedly told Maynard he had never seen anything like it. He was surprised and immediately promised Maynard he would file an appeal--but he never did.

Other facets of sentencing code--that no longer exist today--contributed to Maynard's lengthy sentence. In 1976, if a criminal used a mask to hide his identity, he could get more added to his sentence. Kidnapping charges were filed against Maynard because he corralled the male employees at one Safeway into a walk-in freezer. Linick says Maynard asked one of the men if they could freeze to death in the walk-in, and was told no, so Maynard felt they'd be safe in there.

"One of the men could even walk out of the freezer to watch some of the robbery take place, and then went back in," Linick says. "No one was ever hurt--except Maynard. He was caught at the third robbery when he was shot."

Linick says he had to look at the case differently and try something that may have never been done before in a non-death-

penalty case: file for a reprieve from a prison sentence.

Linick says that while Maynard is not eligible for a suspension of his sentence, a commutation, probation, a pardon or parole, there is nothing on the books that says he can't receive a reprieve from the governor. Linick explained this to Maynard during their November meeting.

"Do you know what a reprieve is?" Linick asked Maynard.

"Well, I've heard of death row (inmates) getting a reprieve, you know," Maynard answered.

Linick explained to Maynard that the statute he was sentenced under doesn't say the governor can't give him a reprieve.

"I would think the governor may want to get you out because of your age. If the statute had said 'no form of early release,' then we wouldn't have a case. The governor may want to give you a reprieve because of your age, because you were sentenced under old code, and because people who are killing people are getting parole after 25 years. You didn't kill anybody. I don't think they are going to want to keep you in here, because you're incurring medical costs, and you've been in here too long compared to what you did and what other people have done."

Despite his apparent optimism while talking to Maynard, Linick describes a reprieve for Maynard as a long shot. First, Maynard's fate depends on the Arizona Board of Executive Clemency approving Linick's application. If that happens, the next--and hardest--step is getting the governor to sign off on Maynard's reprieve: Gov. Janet Napolitano has a reputation for being tough on crime, a reputation that serves career politicians well, Democrat or Republican. The former U.S. attorney and state attorney general has not signed any clemency applications since she began her duties as governor in 2003.

"If the governor looks at this and says, 'You know, we should give this guy a chance; this is archaic law,' that's something for them to hang their hat on--allowing him out for the rest of his incarceration, knowing if he does anything wrong, he'd get yanked right back in," Linick says.

UA School of Law professor Andy Silverman has worked on cases with the Phoenix-based Arizona Justice Project, which has sought clemency for inmates serving disproportionately harsh sentences. He says he has submitted commutation and parole applications to the Board of Executive Clemency for past clients convicted of first-degree murder, but he has never had to file a reprieve.

Silverman says he commends Maynard's legal team, but knows the real battle will begin after the application passes through the Board of Executive Clemency.

"The Board of Executive Clemency has always been willing to listen," Silverman says. "But the past three governors grant very few applications, especially for commutations. That would be this man's biggest challenge."

Linick's taped interview with Maynard was the first and, so far, only time Linick has seen his client. Maynard was at the Arizona State Prison Complex in Tucson in the Manzanita unit and was expecting to be transferred to Santa Rita, another unit at the same facility, after Thanksgiving. But to everyone's surprise, Maynard was transferred to a corrections facility in Buckeye shortly after meeting with Linick. The transfer puts a good bit of distance between the inmate and his paralegal.

Linick says Maynard's transfer to Buckeye, two weeks after he met with Maynard, may have been a result of that meeting.

"I believe it was because the warden knew I was looking into something. I wanted to bring a camera to my meeting with Carl and had to make a request to do so with the warden's office. My request was denied. The warden knew this paralegal (me) was out there asking questions," Linick says.

"Carl himself believes that the prison powers-that-be don't want him out. He and I have talked about that. And so with me making a phone call to the warden's office, doing a visit, I wouldn't be surprised if

they were listening to my conversation

with Carl."

The interview Linick did with Maynard proved to the paralegal that Maynard was worth fighting for.

"And here is Carl, after all these years, who has shown he can follow the rules and regulations of society, because he has no disciplinary record," Linick says. "... That's another reason why I got involved, and that's another factor: I saw that he was a statewide driver. ... He never got into trouble. I really wanted to help this guy."

It's worth noting that the prison refused to let the Tucson Weekly speak to Maynard. Linick got approval from Maynard to be interviewed, and then Linick formally wrote Maynard letting him know the Weekly was interested in visiting. A representative from the Buckeye facility's visitation office said the Weekly had not been put on the visitation list and that an application needed to be filed that could take eight weeks to be approved.

The Tucson Weekly then requested a visit or a telephone interview through the Arizona Department of Corrections' public-information office. ADC public-information officer Bill Lamoreaux said he'd begin processing the request.

Then things got strange.

In a two-week period, the Weekly was asked twice what the story was about. On another day, the Weekly was asked if the ADC could provide other inmates of similar age to interview.

The day after that, the Weekly was asked what dates would be best to schedule a phone interview with Maynard. Toward the end of the first week, the Weekly was informed that an interview date was being finalized; finally, the Weekly was asked to submit via e-mail the names of Maynard's attorneys and a few examples of interview questions.

The Weekly submitted the request on Jan. 8 and was told an interview would probably take place the next day, on Jan. 9.

However, Lamoreaux called on Jan. 9 to let the Weekly know the interview request had been denied. Lamoreaux e-mailed: "The media director and the director of ADC review all inmate interview requests and they have the final decision. They gave me their decision to decline this request."

Linick believes Maynard and other older inmates facing egregious sentences should be released to ease overcrowding and prevent corrections departments from building more prisons. It would also save taxpayers from paying for older inmates' health care.

"They shouldn't have to pay (Maynard's) medical bills any longer," Linick says.

The issue of what prison facilities should do with its aging populations is part of a growing debate. According to a 2006 study led by Brie Williams, a geriatrician at the San Francisco VA Medical Center, one-third of prisoners will be older than 55 by 2030. Currently, the prisons don't have proper services or protocol in place to work with geriatric prisoners.

The study by Williams focused on female prisoners who struggled with daily living, especially physical tasks demanded in a prison environment. Prisoners are expected to drop to the floor immediately when an alarm goes off, get to a top bunk, hear orders from officers, stand in line to be counted and walk substantial distances to dining halls.

Last month, the House Judiciary Committee heard testimony from legal and medical professionals regarding how the justice system is addressing the growing senior prison population. Last year, the Federal Bureau Prison Nonviolent Offender Relief Act of 2007 was introduced in the House. The bill never made it past committee. (The bill would not have helped Maynard in any case, in part, because he's in the state system, not the federal system.)

Professor Jonathan Turley, executive director of the Project for Older Prisoners at George Washington University, testified before the committee in support of the proposed law that would release many nonviolent offenders older than 45.

According to Turley's testimony, each older prisoner costs taxpayers $70,000 per year. Geriatric inmates with debilitating health issues can cost more than $100,000 each and force prisons to make nursing-home accommodations.

As for recidivism, Turley said inmates older than 40 have an 11 percent chance of reoffending. As prisoners reach 65, however, that percentage decreases so much that it is negligible.

Linick and Heveri say Maynard is a prime example in favor of releasing older prisoners.

"There's no doubt that as Carl gets older, he will continue to be a big burden on the system. He doesn't want to be," Linick says.

Heveri points out that this may be Maynard's last chance.

"Carl's old, and he doesn't know anyone who has spent as much time in prison as he has," Heveri says. "And he has always somehow expected that something would happen, that some law would change. Now he's realizing that may not happen, and he wants to try to get out."

Maynard's last job before his transfer to Buckeye was in the prison's sewing department, mending items such as blankets and clothing.

"He's in good health. He's not feeble. He stands straight," Linick says. "But what's important is that he feels he can still work, that he has something to contribute."

The pictures of Maynard provided to the Weekly by his legal team show a man with gray hair in prison orange standing against a wall, and sitting down--with a smile across his face.

"Now he has a chance, and there's a little excitement that there's the possibility that he could get out, that someone is actually helping him, that someone is working on his behalf," Linick says. "There's no urgency. If it takes a year, it takes a year, but before he dies, it would be nice. ... If not, he's looking to spend the rest of his days in prison."

Linick says a free Maynard would be eligible for Medicare and may have enough work credits (from employment before he went to prison) to receive some Social Security. Maynard told Linick a person on the outside has even offered him a job.

"He feels he could rent a small apartment. He can also use a halfway house temporarily as he lands on his feet," Linick says.

Linick and Heveri say they do not have any concerns that Maynard would re-offend. In any case, Maynard could be released with as many conditions as the governor wanted, including going back to prison if he re-offends or comes close.

"There are studies that show senior inmates are the least likely inmate population to re-offend," Heveri says. "But what I've also been told is, essentially, the pardons and paroles that go in front of (Napolitano) are meaningless, because she never signs off. And in a sense, it's heartbreaking, because ... there are very substantial reasons for paroles and early release, and (the inmates) get excited, but not one of them (has been) granted. I was told the Board of Executive Clemency sends her the three most important just to get her to look at more serious cases, but to no avail."

During Linick's interview with Maynard, at one point, Maynard lowered his voice a bit, apparently thinking about the possibilities.

"Look, the DOC don't want me out. I know they don't," Maynard says.

But when Linick asked Maynard if he thought he could make it on the outside, the conversation was full of hope, including the possibility of one day reaching out to a daughter who lives in Southern Arizona.

"Maybe with Social Security, I could get $600 to $700 a month, and I know a guy who would get $300 of food stamps a month (when he got out), but I never thought of doing stuff like that," Maynard says.

Despite what Maynard faces, Linick says he's amazed by Maynard's upbeat personality.

"He's very personable," Linick says. "I don't know why, but he's upbeat. If I were him, I'd be bitter, but he doesn't come across as bitter at all."

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