NPR: Attorneys For Death Row Prisoners Push Back On AG’s Request To Set Execution Dates

Posted by emily on April 26, 2021
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In a filing this week, attorneys for Atwood asked the state Supreme Court to deny the AG’s request, saying their client has an active appeal.

 “The court should put the brakes on this to prevent a miscarriage of justice,” said Attorney Joseph Perkovich. “At this point there are many unanswered questions in Mr. Atwood’s case that remain unanswered because of the pandemic.”

Read the article from local NPR affiliate KJZZ.

Prisoners try to slow push for executions

Posted by Kirsty Davis on April 23, 2021
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https://azcapitoltimes.com/news/2021/04/23/prisoners-try-to-slow-push-for-executions/

Prisoners try to slow push for executions

By Kyra Haas, April 23, 2021

With Arizona’s rush to resume executions come unanswered questions on the sanity and innocence of the first two of 21 condemned prisoners and the motivations of Attorney General Mark Brnovich.

Brnovich notified the Arizona Supreme Court this month that the state intends to seek death warrants for Clarence Dixon and Frank Atwood and made a request for a “firm briefing schedule,” saying it would ensure that the Department of Corrections, Rehabilitation and Reentry is able to comply with lethal drug testing and disclosure obligations.

Robert Dunham, executive director of the Death Penalty Information Center, said Brnovich’s request for a briefing schedule from the court was unusual and looks to set a short timeline and hamstring the court from reviewing legal issues.

Dunham compared Brnovich’s actions to those of former U.S. Attorney General William Barr, who pushed through a string of 13 executions toward the end of his time in office. He issued death warrants that set executions so close in time that the courts couldn’t meaningfully review lingering issues in the cases while falsely claiming no legal issues remained, Dunham said.

Brnovich’s move “goes against everything else we’re seeing with capital punishment in the United States” during the pandemic, said Dunham, whose organization provides information and analysis on death penalty issues and does not take a position for or against capital punishment.

“All of that suggests that what the attorney general is interested in is expediting executions for his political resume rather than ensuring that the process be carried out in a fair and principled manner,” Dunham said.

Brnovich’s term in office ends in January 2023 and the speculation has been he’s eying either the Governor’s Office or U.S. Senate. He did not immediately agree to an interview for this story, but he has used Twitter to defend his actions, saying he’ll never apologize for standing up for the victims of violent crime and never stop fighting for the families of victims.

“I won’t be swayed by activists and journalists who don’t care about the victims,” Brnovich wrote April 17, in response to a New York Times commentary criticizing him and asserting that lethal injection is cruel and violates the U.S. Constitution.

There is no doubt Arizona has struck out on its own in pursuit of resuming executions, with the recent push coming during the longest hiatus between executions carried out by states in the past 40 years — nearly 300 days. In the United States, six executions are scheduled for the rest of 2021. Five are in Texas, and one is in Pennsylvania where there has been a moratorium on executions since 2015 and the governor is expected to grant a reprieve.

Arizona itself has had a nearly seven-year execution hiatus after the execution of Joseph Wood in 2014. Wood snorted and gasped for air for nearly two hours as he was given 15 doses of the sedative Midazolam and hydromorphone, a painkiller.

Atwood’s and Dixon’s attorneys are now trying to slow things down.

Atwood’s attorneys claim that the state is “leapfrogging” Atwood to the front of the line of death row inmates who’ve exhausted their appeals, noting that 12 concluded their appeals before Atwood. The lawyers say there are pending legal issues that haven’t been resolved, involving sentencing and possible innocence, that were cut off because of the pandemic.

They also say that the Attorney General’s Office argued Atwood could bring innocence claims at a later date “while simultaneously preparing, in secret, to moot future investigation by procuring the drugs necessary to resume executions and prioritizing his ahead of all but one other.”

“Instead, Mr. Atwood was put to the front of the line that has over 20 people in it, despite having these very grave issues that have not gotten the process,” said Joseph Perkovich, an attorney for Atwood, said.

Atwood, a previously convicted pedophile, was convinced of the 1984 slaying of Vicky Lynn Hoskinson. She disappeared while riding her pink bicycle on her way to mail a letter for her mother.

Brnovich said in his own filing that the state Supreme Court “need only determine whether Atwood’s first postconviction proceeding and habeas appellate review have concluded,” and if those proceedings have been completed, then state law and procedural rule “leave this Court no discretion to deny the warrant.”

Atwood’s attorneys disagreed, stating that the court has discretion to deny a warrant, and that the way the attorney general interpreted the warrant statute would violate separation of powers by reducing the judiciary to “a rubber stamp acting at the direction of the executive department.”

“Indeed, if this Court’s role was merely to mechanically approve the discretionary actions of the Attorney General, it would be more sensible to vest the warrant power in the executive, as is the case in other capital jurisdictions,” the attorneys wrote.

Dixon’s attorneys are asking for a delay in starting the briefing schedule Brnovich requested, citing the pandemic and the corrections department’s suspension of legal and expert visits. Dixon’s legal team hasn’t been able to visit him since March 2020, and that has kept him from preparing for or accessing clemency proceedings, according to the filing.

The attorneys pointed to two cases in Tennessee and Texas where executions were postponed on public safety grounds, adding that because pentobarbital’s 90-day shelf life doesn’t begin until it is compounded, the state wouldn’t be disadvantaged by the delay.

“As his lawyers, we must have an opportunity to meet with him in person to discuss the difficult and sensitive issues surrounding any potential execution and to gather essential information for a clemency petition,” Dixon’s attorney, Dale Baich, said in a written statement. “The requested pause would ensure those meetings can take place.”

Baich said Dixon has had severe mental illnesses, including schizophrenia, for decades and is now suffering from several physical ailments, including blindness. He said it would be unconscionable for the state to execute him.

If Dixon is schizophrenic, the Constitution prohibits his execution, according to Jon Gould, foundation professor and director of Arizona State University’s School of Criminology and Criminal Justice.

“That’s capital punishment 101,” Gould said.

 

Arizona AG Asks Court to Set Execution Dates, Sparking Broad Backlash

Posted by emily on April 22, 2021
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The Death Penalty Information Center (deathpenaltyinfo.org) reports on the Arizona Attorney General’s decision to conduct executions and the numerous groups who have expressed opposition, including religious advisors and former corrections officers. Read the article here.

Arizona Capitol Times: Pima County Attorney Seeks Delay in Execution

Posted by emily on April 22, 2021
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https://azcapitoltimes.com/news/2021/04/21/pima-county-attorney-seeks-delay-in-execution/

 Pima County Attorney seeks delay in execution

 By Howard Fischer, April 21, 2021

 Pima County’s top prosecutor is seeking a delay in the bid by Attorney General Mark Brnovich to set an execution date for Frank Jarvis Atwood.

 But in a spat that is pointing up a divergence of views on capital punishment, he is spurning her request.

 In a letter to Brnovich obtained by Capitol Media Services, Laura Conover said that since taking office in January she is reviewing a number of cases, including those on death row, because of an “unfortunate” history of the department she said led to several disbarments and appellate cases “born out of prosecutorial misconduct.”

 “Now that my name is attached to all the work of the office, I need to undertake a review to be certain we haven’t overlooked anything,” she wrote. Conover said she wants to “put to rest the history here out of the old homicide and capital units.”

 Conover is not seeking to overturn the death sentence imposed on Atwood, a previously convicted pedophile, who was convinced of the 1984 slaying of Vicky Lynn Hoskinson. She disappeared while riding her pink bicycle on her way to mail a letter for her mother.

 Authorities eventually tracked Atwood to Texas where he was arrested on charges of kidnapping, with murder charges added after Vicki’s skull and some bones were found in the desert northwest of Tucson the following year.

 Atwood has continued to maintain his innocence, even after exhausting all appeals, contending police planted evidence, including testimony that pink paint on the front bumper of Atwood’s car had come “from the victim’s bike or from another source exactly like the bike” and that Vicki’s bicycle had nickel particles on it that were consistent with metal from the bumper.

 “By no means do I want to cause undue delay,” Conover wrote Brnovich. “But I think we will all be well served by a temporary hold on any death warrants from Pima cases while we put to rest the history here out of the old homicide and capital units.”

Brnovich dismissed her request.

 Part of it, he wrote, is because the Atwood case was handled by someone from his office and not Pima County, “rendering any proposed review of this case by you unnecessary, as well as untimely.”

 That, however, us only partly correct.

 John Davis actually started handling the case when he was a deputy Pima County attorney. He was allowed to continue handling the case when he went to the Attorney General’s Office.

 Brnovich, in his response to Conover, also took a slap at her for making the request in the first place.

 “I am concerned that your letter is less about an internal review and more about ending the death penalty in general,” he told her, noting that she campaigned on a platform of ending capital punishment. Brnovich said that it is her right, as the county attorney, to decide when to seek the death penalty.

 “As attorney general, I am charged with enforcing the laws of Arizona, including carrying out capital punishment sentences,” he said. “I also take seriously the finality of jury verdicts, as well as the constitutional right afforded crime victims to a prompt and final resolution of a criminal case.”

 Joe Watson, spokesman for Conover, acknowledged that her reference to “disbarments” of attorneys may have been overstated.

 Only Ken Peasley was forever denied the ability to practice law again after it was determined that he had allowed a police officer to lie on the stand in two murder cases. But Watson said other prosecutors had their law licenses suspended.

 But Watson said there is a “volume of misconduct” by prosecutors which has been detailed when appellate courts reviewed Pima County cases. That, he said, “could result in a lengthy review, especially in the homicide and capital case arena,” the review that Conover wants to conduct before anyone else convicted in her county is put to death.

 Watson acknowledged the opposition of his boss to the death penalty and her decision not to seek it in future cases.

 Part of that, he said, is based on her campaign promises. But Watson said that the move also frees up the attorneys assigned to capital cases to focus on the backlog of other homicide cases that had accumulated before Conover took office.

 And there’s a philosophical element to it, too.

 “The death penalty perpetuates ongoing trauma to victims and their families,” Watson said. And then there’s the fact that “mistakes can happen, evidence can get lost, and science can fail us.”

 He also said that, at least in Pima County, the overwhelming sentiment is to stop seeking the death penalty.

Death Penalty 2020: Despite COVID-19, Some Countries Ruthlessly Pursued Death Sentences and Executions

Posted by emily on April 22, 2021
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The unprecedented challenges of the Covid-19 pandemic were not enough to deter 18 countries from carrying out executions in 2020, Amnesty International said today in its annual global review of the death penalty. While there was an overall trend of decline, some countries pursued or even increased the number of executions carried out, indicating a chilling disregard for human life at a time when the world’s attention focused on protecting people from a deadly virus.

Read Amnesty International’s full report.

Lawyer expresses concern over lethal injection drugs

Posted by emily on April 19, 2021
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Dale Baich, counsel for Clarence Dixon, has expressed concern over the drugs Arizona intends to use to execute 20 people on Arizona’s death row. In the article and video, available from ABC 15, journalist Michael Kiefer describes the “barbaric” scene of Arizona’s last lethal injection.

NYT Op-ed on Arizona’s Execution Resumption

Posted by Kirsty Davis on April 15, 2021
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Trump’s Killing Spree Continues

Arizona follows a model that lets the government ignore questions of cruelty.

https://www.nytimes.com/2021/04/15/opinion/death-penalty-arizona.html

By Elizabeth Bruenig, April 15, 2021

Arizona’s attorney general, Mark Brnovich, has a problem: There’s no easy way to kill people. Arizona hasn’t carried out any executions since it bungled the killing of Joseph Wood in 2014, leaving him gasping and gulping for air during the roughly two hours it took him to die from a lethal injection. In a country where cruel and unusual punishment is constitutionally prohibited, Mr. Wood’s long and agonizing demise belied assurances that lethal injection is humane and scientific, providing a death akin to falling asleep.

But Arizona’s pause in executions may be nearing an end — not because someone has produced a cruelty-free method of killing a person, but because the state is following the blueprint pioneered by the Trump administration when it pushed through 13 federal executions in its final months.

In 2019, Attorney General Bill Barr announced that the federal government would resume executions after a 17-year lapse caused by the unavailability of certain lethal chemicals, and despite a still-pending lawsuit concerning the method of execution itself. Mr. Barr announced that the Justice Department had procured the sedative pentobarbital, often used to euthanize animals, from secret sources and that it would begin executing prisoners with that drug alone.

As soon as Mr. Barr shared his news — what pride the prospect of 13 corpses can supply! — Mr. Brnovich began lobbying Gov. Doug Ducey of Arizona to follow his lead. Mr. Barr’s announcement, Mr. Brnovich wrote to Mr. Ducey, “suggests that the federal government has successfully obtained pentobarbital. These recent developments establish that it is now time to resume executions in Arizona.”

Mr. Brnovich got his wish. But legal challenges to death by lethal injection still remain, and it’s not at all clear that the way America kills Americans comports with our own founding principles.

Because the Eighth Amendment contains no explanation of what its ban on cruel and unusual punishment means, the Supreme Court has held that the principle “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” And yet the court has also held that in order to successfully challenge a method of killing on Eighth Amendment grounds, a prisoner must provide an alternative that is “feasible, readily implemented” and likely to significantly reduce a “risk of severe pain.” In other words, the question of whether evolving standards of decency by a maturing society would find a method of execution cruel is irrelevant; all that matters is whether the prisoner can prove there’s a better alternative.

Yet cruelty does matter. And scientific evidence suggests that pentobarbital poisoning is an excruciating way to die.

Joel Zivot, an anesthesiologist, intensive care physician and associate professor at Emory University School of Medicine, deduced as much when he pored over autopsy reports of executed prisoners. He noticed that the lungs removed from the corpses were roughly double the weight of ordinary cadaver lungs.

“The only way for that to happen would be that fluid is filling into the lungs during execution,” he said. As the bloody, frothy fluid saturated the lungs, Dr. Zivot told me, “it would be perceived by the person,” as they lay “choking to death and drowning in their own lung secretions.”

“And so I thought, well, that’s terrible,” he said. “And I’m so glad to bring it forward. And now we know, and we can dispense with this method of execution that’s clearly bad.”

Dr. Zivot began writing about the issue, then testifying in court as an expert on lethal injection for defense teams. He was disheartened — and infuriated — to find that the facts about death by lethal injection seemed irrelevant to judges.

“They seem to just believe that this doesn’t matter,” Dr. Zivot said. “I can’t make sense of it. It’s not that they say this isn’t happening. They’ll say, ‘Well, you know — it’s brief and it’s not material.’”

A great tangled mass of thought coils around the question of how much suffering ought to be inflicted upon a person as the state kills him.

“To constitute cruel and unusual punishment, an execution method must present a ‘substantial’ or ‘objectively intolerable’ risk of serious harm,” Chief Justice John Roberts wrote in a 2008 opinion.

What do courts consider serious harm when death is the intended outcome?

“I would say they are looking for pain,” Megan McCracken, a capital defense attorney and expert on method-of-execution challenges, told me. “And they’re looking often for a drawn-out process. But they never find it.”

Yet past lethal injection protocols have included paralytics, which would prevent prisoners from describing their condition.

Both the federal supply of pentobarbital and Arizona’s cache of the poison were obtained in secrecy. A recent investigation by The Guardian revealed the state’s stock arrived in unmarked bottles and boxes, from a vendor not revealed to the public, with a $1.5 million dollar price tag. Other states, too, are pursuing the drug.

While a Federal District Court judge ruled last summer that injecting lethal chemicals without physicians’ prescriptions violated the Food, Drug, and Cosmetic Act, the court declined to order a remedy or relief on the grounds that no harm could be demonstrated and the execution of Keith Nelson went forward. If the courts believe that drug regulations don’t necessarily apply to killing drugs, it’s difficult to determine how anyone would know if the particular batch deployed was defective or expired, or how those flaws would affect inmates. The only people who could helpfully remark on the experience are dead.

Is it cruel to kill a person with this drug, in this era, in this particular way? Does it matter that we can’t know with any certainty, and that what we do know suggests the possibility of suffering not unlike death by drowning? Is it bad for us, as a people, to be reduced to assenting to the best kind of cruelty we can conjure, as opposed to permitting no cruelty at all?

I have seen a person poisoned to death by pentobarbital. It isn’t still, it isn’t a peaceful drifting. Someone hiding behind a wall introduces a chemical into the vein of the prisoner strapped to a gurney, helpless, as witnesses on three sides watch through glass as the prisoner dies, heaving for breath.

In his essay on cruelty, Montaigne quotes Seneca lamenting “that a man should kill a man, not being angry, not in fear, only for the sake of the spectacle.” It’s hard to think of a more fitting indictment of the American practice of execution.

If the law fails to conform to justice and Mr. Brnovich is able to set execution dates for the souls eligible for killing on Arizona’s death row, history will record that he did so using a legally dubious drug protocol that is most likely agonizing, that he did it for the sheer spectacle of it and that Mr. Barr and Mr. Trump showed him the way.

Report: Arizona Paid $1.5 Million For Death Penalty Drugs

Posted by emily on April 13, 2021
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KJZZ reports thtat the Guardian has uncovered that Arizona paid $1.5 million on 1,000 grams of pentobarbital in October 2020, in order to resume executions. Read the story here.

Editorial: Arizona’s attorney general wants to finish his term with a rush of executions

Posted by emily on April 13, 2021
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The L.A. Times editorial board urges Arizona Attorney General Brnovich not to resume executions. Read the editorial here.

Arizona refuses to provide details on the source of execution drugs

Posted by emily on April 13, 2021
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Arizona has spent $1.5 million on pentobarbital, but will not answer questions about the source of the drugs. Reporting from Capitol Media Services available at Tucson.com.