According to former White House counsel Fred Fielding, his staff had become frustrated by the lack of positive recommendations from the pardon office. In Bush's final year in office, lawyers began searching through denial recommendations for promising cases and found Aaron.
This time, key elements shifted in Aaron's favor. Unlike her predecessor, Deborah J. Rhodes, the new U.S. attorney for the Southern District of Alabama, supported the petition.
"I have reviewed various documents submitted by Clarence Aaron in support of his petition for commutation of sentence and agree that Aaron should receive a commutation of his life sentence," her November 2008 memo to Rodgers began.
Rhodes suggested Aaron's triple life sentence be commuted to the equivalent of a 25-year sentence, with credit for good behavior. Under this calculation, Aaron would be released in 2014.
U.S. District Court Judge Charles Butler Jr., who had sentenced Aaron, changed his earlier stance of no position, opting this time to support commutation.
"Looking through the prism of hindsight, and considering the many factors argued by the defendant that were not present at the time of his initial sentencing, one can argue that a less harsh sentence might have been more equitable," he wrote in response to a motion filed by Aaron's attorneys.
In a phone interview with the pardons office on Dec. 2, 2008, Butler told Morison, the lawyer in the office, that Aaron "should be granted relief" by the president immediately.
Morison sent an e-mail to Rodgers sharing his transcribed notes from the call with Butler. Morison asked Rodgers if he should update the draft recommendation on file for Aaron's release in light of the views expressed by Rhodes and the judge. Rodgers responded minutes later: "Thanks Sam. I'll take it from here."
Instead, Rodgers offered no new recommendation to the White House and did not revise the old one. He did not pass on years of favorable prisoner reports describing Aaron's successful rehabilitation. He also made no mention of an affidavit Aaron filed with the pardons office in 2007 in which he expressed further remorse and asked "for a second chance to be a productive citizen."
Rodgers resubmitted the 2004 denial recommendation, unchanged, to the White House.
In an email the next day to Kenneth Lee, associate White House counsel, Rodgers did not disclose that Rhodes and the sentencing judge now agreed that Aaron should receive an immediate commutation. He told Lee that Rhodes suggested Aaron's sentence should be commuted to a term of 25 years "at some point." Rodgers also said that Rhodes believed "Aaron's commutation request is about 10 years premature."
No such language is in Rhodes's memo.
All Rodgers told the White House about Butler's views was that the judge had "no objection to commuting the sentence presently."
Rhodes would not comment on Rodgers's handling of the petition except to reiterate that she had recommended an immediate commutation for Aaron.
"I reviewed the case myself and thought it was a good one," she said.
Butler declined to comment for this story.
The Justice Department would not answer questions about the way Rodgers characterized the views of Rhodes and Butler, or how Rodgers had arrived at his recommendation on Aaron.
Lee, the former associate White House counsel, said Rodgers had presented the views of Rhodes and Butler "in the least favorable light to the applicant."
