Mr. Atwood has requested an alternative, constitutional method of execution, contending that forcing him to choose between cyanide gas and lethal injection violates his rights
The federal court could grant a preliminary injunction staying Mr. Atwood’s execution while it determines whether Arizona must designate new method of execution
PHOENIX—At a hearing scheduled for Friday, June 3 at 2:00pm PT, the U.S. District Court of the District of Arizona will determine whether to grant a preliminary injunction temporarily halting Frank Atwood’s execution while it weighs questions related to Arizona’s methods of execution. Mr. Atwood asserts that Arizona has deprived him of his right to choose a constitutional execution method because Arizona’s lethal injection protocol cannot be applied to him without causing unnecessary, extreme pain, and Arizona has failed to offer a valid choice of lethal gas.
“Before the court now lies the decision to stay Mr. Atwood’s execution or allow Arizona to violently torture an elderly, physically disabled man who shouldn’t be on death row in the first place,” said Joseph Perkovich, counsel for Mr. Atwood.
The Arizona Constitution guarantees a choice between lethal injection or lethal gas. Lethal injection is the most frequently botched method of execution, with many recent executions going catastrophically wrong. Physically strapping Mr. Atwood, who suffers from a severe form of spinal deterioration, to the lethal injection table will be painful and torturous and carries the threat of a botched execution.
Mr. Atwood has demanded the use of nitrogen gas, a constitutional gas method, but the State insists that it will only use cyanide gas, a barbaric execution method deployed by Nazis during the Holocaust and one that courts have previously rejected.
The District Court will hold its hearing in Phoenix a week after the Ninth Circuit Court of Appeals denied Mr. Atwood’s request to allow review of evidence of Mr. Atwood’s innocence. At this stage in a death penalty case, it is rare for a Ninth Circuit panel to have requested oral arguments.
“The fact that the Ninth Circuit requested oral arguments, and deliberated questions about Mr. Atwood’s innocence and the state’s suppression of evidence implicating an alternate suspect for several days, demonstrates that the Court had concerns and that they did not easily dismiss these concerns,” said Amy Knight, who argued before the Ninth Circuit on behalf of Mr. Atwood.
Mr. Atwood, who has always maintained his innocence, was convicted in a circumstantial case that lacked hard physical evidence or eyewitnesses. After thoroughly inspecting Mr. Atwood’s car, the FBI failed to find any blood, hair, soil, fingerprints or other physical evidence connecting the victim to the inside of the car, which was supposedly used to transport the victim. There were also no eyewitnesses to the abduction. However, several eyewitnesses came forward and pointed police in the direction of another suspect. On the evening of the victim’s disappearance, multiple witnesses spotted the victim, accurately describing her and her distinctive clothing, at the Tucson Mall. According to witnesses, the victim appeared distressed and in the control of an unknown woman. Mr. Atwood’s whereabouts were accounted for during the time of these eyewitness sightings and the timeline police proposed for Mr. Atwood’s alleged actions that day is simply not possible.
“Circumstantial evidence is not enough to torture and execute someone – especially if the evidence points to someone else. But that’s exactly what Arizona is about to do,” said Perkovich.
Still pending in Mr. Atwood’s case is other litigation pertaining to the safety and sterility of the lethal injection drugs Arizona intends to use to execute Mr. Atwood. Arizona has refused to identify the source of its drugs or to provide adequate testing to demonstrate that the drugs will work as intended. Just weeks ago, state officials scrambled to make a new batch of drugs the day before the execution of Clarence Dixon, after his attorneys argued that the vial the state intended to use was in fact already expired.
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