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Schwarzenegger's clemency order challenged

Schwarzenegger's clemency order challenged
Austrian- American actor/politician Arnold Schwarzenegger attends a photo call for "Barclay's Cycle Hire Scheme" at City Hall in London on March 31, 2011. UPI/Rune Hellestad | License Photo

SACRAMENTO, May 29 (UPI) -- The family of a stabbing victim says California's Victims Bill of Rights should allow them to be heard in a clemency order issued by Gov. Arnold Schwarzenegger.

Attorneys for Fred and Kathy Santos -- parents of Mesa College student Luis Santos, who was fatally stabbed at a party in October 2008 -- argue the law says the governor is legally obligated to notify family members of victims when considering whether to reduce or commute sentences, the San Diego Union-Tribune reported Friday.

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Shortly before leaving office, Schwarzenegger reduced by more than half the sentence handed down to one of the two defendants, Esteban Nunez, the son of former Assembly Speaker Fabian Nunez, a political ally of the governor.

"Well, hello! I mean, of course you help a friend," Schwarzenegger told Newsweek in April, an admission Santos' attorneys plan to use to make their case.

The governor "did not grant the commutation to correct a true injustice and instead admitted he did it as a 'favor' to a friend," attorney Salarno Ashford said.

Schwarzenegger has justified his action by saying Nunez unfairly received the same sentence as the man prosecutors said delivered the fatal blow. Nunez pleaded guilty to voluntary manslaughter and two counts of assault with a deadly weapon and was sentenced to 16 years in jail.

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Most legal experts don't expect the legal challenge to succeed.

"It will be very difficult to argue that Marsy's Law applies here since the law does not mention gubernatorial commutations," Erwin Chemerinsky, dean of the law school at the University of California, Irvine, told the newspaper in an e-mail message.

Marsy's Law, also known as the Victims Bill of Rights, is an initiative approved by voters in 2008 requiring those harmed by crimes to be notified of all court action from arrest to parole hearings. But it is not clear if the law applies to gubernatorial clemency, which takes place outside the court system.

"All the governor has to do is treat the victims with fairness and respect, consult the victims, consider their safety," Douglas Beloof, a law professor at Lewis & Clark Law School in Portland, Ore., told the newspaper. "Once he does that he can do what he wants. ... The problem is he didn't do that, which throws the action into constitutional doubt."

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