Governor OKs Parole of Murderer

Offering a first glimpse of his views on matters of crime and punishment, Gov. Arnold Schwarzenegger on Thursday let stand a state parole board decision freeing a Sacramento man convicted of murder in a 1985 shooting.

At the same time, the governor vetoed parole for a Visalia motorist who killed a woman while driving drunk 17 years ago.

In both cases, Schwarzenegger was exercising a constitutional power over the parole of murderers handed to governors through a ballot initiative approved by voters in 1988.

His actions, watched closely by inmates and their advocates, mark Schwarzenegger’s first foray into a sensitive policy area that created controversy for his predecessor, Gray Davis.

Davis, a Democrat, was criticized as unduly harsh in blocking paroles granted to convicts by his appointed Board of Prison Terms, with his pattern of decision-making challenged all the way to the state Supreme Court.

During Davis’ five years in office, his parole board decided that 294 murder convicts were rehabilitated and ready for release. Davis blocked freedom for all but eight, a record far stricter than the two Republican governors who preceded him.

Moreover, Davis waited almost two years into his tenure to permit any eligible murderer to go free -- and chose a battered woman who killed her abuser as his first. Schwarzenegger, by contrast, waited just four days into his term.

Schwarzenegger, a Republican, offered little comment during the campaign about his stand on law and order issues, aside from his support of the death penalty. On Thursday, a spokeswoman in the governor’s legal affairs office said there would be no comment on the parole decisions.

The man Schwarzenegger is allowing to go free is Fred Nesbit, 63, who has served 18 years for the killing of Donald Hollock during a confrontation that also involved Nesbit’s estranged wife.

A transcript of Nesbit’s June parole hearing shows that Nesbit became angry after his ex-wife had taken two horses and saddles from the property they had shared.

He went to her home to confront her. An argument ensued, during which Nesbit and Hollock exchanged gunfire. Hollock died and Nesbit suffered three serious gunshot wounds.

Nesbit, a heating and plumbing engineer, was convicted of second-degree murder and sentenced to 17 years to life in prison. While behind bars, he has had no disciplinary problems. A prison psychiatrist in January concluded that if Nesbit were released, his threat to society would be “low to nil.”

In addition, neither the district attorney who prosecuted him nor the victim’s family opposed his parole. Based on such factors, the board found him suitable for release.

“I’m ecstatic to hear that the governor is going to let this [parole] date go through and let the Board of Prison Terms do its job,” said Nesbit’s attorney, Rhonda Skipper-Dotta. “He was deserving of release a long time ago and will make the most of his second chance.”

By taking no action to block Nesbit’s parole, Schwarzenegger automatically clears him for freedom, probably as early as this weekend.

The other case decided by Schwarzenegger involved Kenneth Fleming, 45, convicted of second-degree murder after causing a series of traffic collisions while driving with a blood-alcohol level twice the legal limit in February 1986.

Fleming, then 28 and on probation for an earlier conviction of driving while intoxicated, hit two cars -- causing injuries to three people -- and then sped away, without headlights and on the wrong side of the road, a summary by the governor said.

A few miles away, he crashed head-on into a third vehicle, killing a passenger, Mary Lee Watkins, and seriously injuring the two others in the car.

Fleming agreed to a plea bargain and was sentenced to 15 years to life in prison. Schwarzenegger said he has made “significant progress” while incarcerated, participating in Alcoholics Anonymous, Bible study and prison work programs and receiving laudatory reports from staff.

“However, Mr. Fleming’s crime, history and psychological evaluations show a dangerous instability during times of stress,” the governor wrote.

The inmate, he continued, must demonstrate his gains over a longer period of time to ensure he will not pose a safety risk once released.

Fleming had previously applied for parole was rejected by Davis.

Paroles are handed down by the nine-member Board of Prison Terms, appointed by the governor.

Each year the board holds about 3,100 hearings for murderers, rapists and kidnappers who have served their minimum terms and become eligible for parole.

About 1% of those evaluated by the board are cleared for release. A small number of inmates convicted of more heinous killings are ineligible for parole or are on death row.

California’s governor was brought into the parole process through the 1988 ballot initiative, Proposition 89. It was pushed by former Gov. George Deukmejian, who was angered by his inability to prevent the release of a murderer and rapist.

California is one of only three states -- along with Oklahoma and Maryland -- that give governors veto power over parole.

Some say such authority provides society an extra measure of protection.

But others say it can politicize the task of deciding which inmates should go free, because some governors fear a paroled criminal will commit a new crime and ruin their political future.

The classic case in point is Willie Horton, the Massachusetts murderer who raped a woman while on a weekend furlough when Michael Dukakis was governor of Massachusetts. In the 1988 presidential race, then-Vice President George Bush, among others, used the Horton episode to bash Dukakis, contributing to the Democrat’s defeat.

Lawyers for inmates said they hoped Schwarzenegger would be less sensitive to such political risks.

“This is a very good sign,” said Cheryl Montgomery, a Sacramento attorney who has handled parole board cases for years.

“I hope this means he realizes that the parole commissioners are not pushovers, not marshmallows. They are very, very selective about who they recommend for parole, so the governor should let them do their job,” she said.