Executions are set to resume in Arizona, and days after being dismissed from a death penalty review by Governor Katie Hobbs, a retired judge is telling his side of the story.
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Austin Sarat writes at Slate about three executions over the span of two days–November 16 and 17–were badly botched. In Murray Hooper’s execution, the team could not access a peripheral vein and resorted to accessing his femoral vein in his groin. Arizona law prevents the defense team or the public from learning the identities of the execution team members, who routinely struggle to access peripheral veins, or determining whether they have adequate training.
Jimmy Jenkins of the Arizona Republic also writes about the botched executions and Arizona’s “veneer of medicalization” on lethal injection.
On November 10, the Arizona Supreme Court affirmed the lower court’s denial of Mr. Hooper’s request for DNA testing and fingerprint testing. These requests were made pursuant to Arizona’s DNA and forensic testing statutes. Read the decision here.
On November 15, the Ninth Circuit Court of Appeals also rejected Mr. Hooper’s request for DNA testing, pursuant to the Rooker-Feldman doctrine, which prohibits the appeal of a state court judgment to a federal court. The Ninth Circuit’s decision is available here.
Arizona is set to execute Murray Hooper, age 76, on November 16 at 10 a.m. Mr. Hooper has maintained his innocence for more than 40 years and has requested DNA and fingerprint testing, which the State has opposed. There were significant problems with Mr. Hooper’s trial, including a mistaken identification, the use of paid informant testimony, and significant police misconduct.
Atwood asked the Arizona Supreme Court to review a post-conviction relief petition based on evidence of his innocence, prosecutorial wrongdoing after the Pima County Superior Court denied his post-conviction relief petition
Atwood will ask the Ninth Circuit for a rehearing, following a Ninth Circuit panel’s denial of a preliminary injunction to halt Atwood’s execution related to Arizona’s execution methods
PHOENIX—Attorneys for Frank Atwood today filed a motion with the Arizona Supreme Court asking the Court to review the Pima County Superior Court’s denial of his petition to vacate his conviction and give him a new trial. If the Arizona Supreme Court were to grant review, Mr. Atwood would be able to present evidence of his innocence and that the state withheld evidence implicating an alternate suspect, ultimately stopping his execution, which is scheduled for Wednesday, June 8, 2022.
The petition filed with the Arizona Supreme Court comes a day after attorneys for Mr. Atwood delivered oral arguments before a panel of judges from the United States Court of Appeals for the Ninth Circuit, urging the panel to issue a preliminary injunction to halt Mr. Atwood’s execution and compel Arizona to designate a constitutional execution method. The panel denied the request for a preliminary injunction.
See below for statements on both legal challenges.
STATEMENT ON POST-CONVICTION RELIEF BASED ON INNOCENCE CLAIMS, PROSECUTORIAL WRONGDOING:
To be attributed to said Sam Kooistra, counsel for Mr. Atwood:
“We hope the Court intervenes before Arizona executes an innocent man who was convicted in a case haunted by the specter of prosecutorial wrongdoing and an alternate suspect.”
Mr. Atwood has always maintained his innocence but was convicted in a case that lacked hard physical evidence or eyewitnesses. The FBI, which thoroughly inspected Mr. Atwood’s car, failed to find 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.
Moreover, when police received a highly credible tip linking a third suspect to the victim’s disappearance, the State failed to share that information with Mr. Atwood’s attorney, in direct violation of Mr. Atwood’s right to due process and the prosecution’s corresponding duties under Brady v. Maryland.
STATEMENT ON NINTH CIRCUIT DENIAL OF STAY OF EXECUTION PERTAINING TO ARIZONA’S EXECUTION METHODS:
To be attributed to Joseph Perkovich, counsel for Mr. Atwood:
“A panel of the Ninth Circuit has denied a stay of execution despite grave, persisting problems with the lethal injection method that will be used on Mr. Atwood, a method that, with all that has been evidenced, without refutation from the State, will intentionally inflict extreme pain for what will likely be an hour before, in the best-case scenario, he succumbs to the execution chemicals.
“The panel has also reasoned that because Mr. Atwood failed to designate hydrogen cyanide gas as his choice of execution method, he cannot legally challenge it. The panel ignores the Supreme Court law that, in no uncertain terms, categorically prohibits a legal challenge of a chosen method. Mr. Atwood brought a legal challenge to Arizona’s hydrogen cyanide gas when he was under the execution warrant and the constitutionality of that odious method was in question for him.
“Mr. Atwood will seek rehearing en banc to afford the Ninth Circuit an opportunity to remedy the egregious Catch 22 that the panel determined it had no recourse but to countenance.”
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Atwood is asking Court to halt his execution while it weighs a post-conviction relief petition based on innocence claims, state’s withholding of evidence
PHOENIX—Today, attorneys for Frank Atwood filed a legal motion with the Arizona Supreme Court to stay his execution as the Court weighs a separate petition asking the Court to vacate his conviction and give him a new trial based on innocence claims and the state’s suppression of evidence implicating an alternate suspect.
“Arizona is on the brink of torturing and executing Mr. Atwood for a crime he did not commit and based on a conviction obtained after the state violated Mr. Atwood’s constitutional rights by withholding evidence,” said Sam Kooistra, counsel for Mr. Atwood. “Executing Frank Atwood would be a deep and irreparable miscarriage of justice.”
Mr. Atwood has always maintained his innocence but was convicted in a circumstantial case that lacked hard physical evidence or eyewitnesses. After thoroughly inspecting Mr. Atwood’s car following his arrest, the FBI failed to find 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.
Moreover, when police received a highly credible tip linking a third suspect to the victim’s disappearance, the State failed to share that information with Mr. Atwood’s attorney, in direct violation of Mr. Atwood’s right to due process and the prosecution’s corresponding duties under Brady v. Maryland.
The motion for a stay of execution was filed the same day as the Phoenix-based U.S. District Court of the District of Arizona is hearing arguments to determine whether to grant a preliminary injunction temporarily halting Frank Atwood’s execution while it determines whether Arizona must designate a new method of 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 Arizona Constitution guarantees a choice between lethal gas or lethal injection. 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. Lethal injection is the most frequently botched method of execution, with many recent executions going catastrophically wrong.
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Arizona’s use of Zyklon B should shock the conscience of all Americans.
On June 8, the State of Arizona is scheduled to execute Frank Atwood. Atwood, whose mother escaped Nazi persecution in Vienna, faces a perverse choice: suffer execution by lethal injection, or by hydrogen cyanide gas, a version of which was used by the Nazis to murder more than one million Jewish people at Auschwitz. Arizona last used cyanide gas in 1999 to execute Walter LaGrand. The state killed him violently, in all of our names, through a painfully slow asphyxiation that dragged on for an unfathomable 18 minutes.
Arizona’s commitment to this hideous execution method should shock the conscience of all Americans. It is particularly appalling to me as the board chair of the Jewish Community Relations Council (JCRC) of Greater Phoenix, and to my broader community. Earlier this year, we sued the state of Arizona to stop it from using this barbaric execution tool, infamous as the primary chemical deployed in Nazi death camps during the Holocaust.
This is the first time the JCRC has ever been a litigant. We hope it is the last.
The killing of another human being through a practice known to cause pain and suffering undermines everything the Jewish people stand for. Judaism introduced to the world the idea that every life is imbued with infinite value. Long before the constitutions of Arizona or the United States banned cruel and unusual penal punishments, the Jewish people opposed them, as they diminish the humanity and dignity of everyone involved, the punished and those who inflict the punishment alike.
For thousands of years, Jewish teachings have inveighed against practices common in the cities, nations, and empires where we lived: mutilation, burning at the stake, and throwing the condemned into a funeral pyre, to name only a few. Those same moral and ethical values require us to stand against a practice that we recognize, from our own tragic history, as highly likely to cause severe pain and suffering.
We are shocked that Arizona is proposing to use the very same chemical compound used by Nazis — often referred to as Zyklon B. Indeed, the resumption of this practice risks, for Holocaust survivors, reliving a trauma they have spent their lifetimes trying to forget.
As Jews, we aspire to make our society a light unto the nations. On this matter, Arizona stands out for its darkness. Nearly the entire civilized world — and most of the United States — has abandoned the use of Zyklon B. No state has used it to execute for more than 20 years. There is no question that killing a person with hydrogen cyanide is both cruel and unusual. In fact, Frank Atwood’s lawyers argue that forcing him to choose between cyanide gas and lethal injection violates his rights.
The state has raised many defenses to our suit, most of them hyper-technical, legal ones that, if adopted, would prevent any challenge to a state’s use of any method of execution, no matter how cruel or unusual. What is absent from the state’s arguments is any argument that killing another human being with hydrogen cyanide is anything but cruel or unusual.
As June 8 approaches, we continue to hold out hope that the state will confess explicitly what it concedes implicitly — that killing a person with Zyklon B is torture and thus that we, following every other state and the community of civilized nations, should bar its potential use. This hideous Nazi weapon of the Holocaust should be banished to history, not resurrected to wield violence in the name of Arizonans.
Legal team points to this misstep as emblematic of problems plaguing Arizona’s death penalty system
PHOENIX—Today, Frank Atwood’s legal team uncovered that the Arizona Supreme Court had declined to weigh in on an earlier filing challenging the adequacy and expiration of Arizona’s lethal execution drugs. The Court, however, failed to notify Mr. Atwood’s legal team about its decision, which it reached nearly one week ago today.
In response to this error, Joseph Perkovich, counsel for Mr. Atwood, had this to say:
“This significant misstep by the Arizona Supreme Court is more than disappointing, it is emblematic of systemic problems plaguing Arizona’s death penalty at large.
“In a complex legal process that carries with it the ultimate and irreversible outcome of death at the hands of the state, we have seen over and over again a consistent disregard for the rule of the law and the very premise of fairness in our justice system.”
After discovering the error, counsel for Mr. Atwood requested a stay of execution to allow for additional time to seek review of the Court’s denial.
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