Arizona Capital Representation Project

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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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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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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Frank Atwood: Federal Appeals Court Weighs Legal Innocence Arguments

The Ninth Circuit Court of Appeals to determine whether to authorize review of questions about Mr. Atwood’s innocence, the State’s suppression of evidence, and whether Mr. Atwood was eligible for the death penalty to begin with

PHOENIX – Following the Arizona Board of Executive Clemency’s denial of Frank Atwood’s request for commutation, reprieve, or pardon, Mr. Atwood’s legal team continue their efforts to reopen legal innocence claims in this case before Mr. Atwood is wrongfully executed. Mr. Atwood is also challenging the state’s methods of execution, lethal injection and lethal gas, both of which would amount to torture in his case.

Yesterday, a panel of the Ninth Circuit Court of Appeals heard oral argument on whether to authorize litigation in the District of Arizona on persisting constitutional problems in the conviction and death sentence of Frank Atwood. In question are Mr. Atwood’s innocence, the State’s suppression of evidence implicating an alternate suspect, and whether Mr. Atwood was even legally eligible for a death sentence under Arizona law. Federal procedural barriers to further litigation are considerable, but the Court of Appeals identified questions it needed to closely consider due to the gravity of the underlying problems. Should the federal appeals court side with Mr. Atwood, his case would return to the federal district court in Tucson, where these questions would be addressed.

“We are hopeful the Ninth Circuit will agree that, with this profound injustice at stake, these crucial questions about Mr. Atwood’s innocence, his conviction, and death sentence must be resolved before Arizona wrongly executes him,” said Amy Knight, the attorney who argued before the Ninth Circuit on behalf of Mr. Atwood.

INNOCENCE

Although the Board of Executive Clemency declined to take action on Mr. Atwood’s case, Mr. Atwood and his legal team presented extensive evidence eviscerating the prosecution’s case, in addition to voluminous evidence of an alternate suspect’s culpability in the 1984 disappearance and death of an 8-year-old child.

The only surviving member of Mr. Atwood’s trial defense team, Ms. Debbie Gaynes, who was permitted to address the Board only briefly, outlined serious issues plaguing the jury deliberations. The yelling she heard coming from the jury room, along with interviews she conducted after the verdict, revealed that five jurors were coerced into convicting Mr. Atwood by another juror, an ex-Marine. At the time, juror Helen White told Ms. Gaynes she could not understand how the jury convicted Mr. Atwood of kidnapping—a decisive matter because without the kidnapping conviction, the prosecution would have been unable to seek a death sentence. Compounding these serious, unresolved problems with the conviction is the fact that Mr. Atwood was sentenced to death by a lone judge, and not this conflicted jury. The Arizona law allowing for such sentencing was later struck down as unconstitutional by the U.S. Supreme Court. Due to procedural technicalities, however, this unconstitutional sentence has been allowed to stand.

Mr. Atwood’s defense team at trial in this unprecedently complex case, in the state’s first trial covered gavel-to-gavel on television, boiled down to a solo defense attorney and his valiant paralegal. The case clearly needed a proper team of attorneys specialized in this most demanding area of the law. But even with an adequate defense team, the prosecution’s misconduct and factual distortions would have plagued the proceedings. The child victim’s grieving father, the late Ron Hoskinson, even stated at the time of the sentence: “I thought it may be life because there wasn’t an eyewitness. I wouldn’t have been upset either way – life or death.”

As a faithful member of the Greek Orthodox Church, Mr. Atwood also received a strong show of support from his religious community. The Abbott of St. Anthony’s Greek Orthodox Monastery, who baptized Mr. Atwood in 1998 and has been his confessor ever since, testified to his innocence and to Mr. Atwood’s deep repentance for the harm he had caused others in the years before he was wrongfully convicted of this crime. Several other priests, all of whom have known Mr. Atwood for many years, offered similar testimony. Upwards of 200 hundred people from the Greek Orthodox community attended, forcing the board to set up an overflow room to accommodate Mr. Atwood’s numerous supporters.  

EXECUTION METHODS

As courts weigh questions pertaining to Mr. Atwood’s innocence, conviction, and death sentence, Mr. Atwood’s legal team continues their work to secure an execution process that will not result in his violent torture. The Arizona Constitution ensures a choice between a lethal injection or lethal gas. Mr. Atwood has demanded the use of nitrogen gas, a constitutional method, but the State continues to insist that it will use only cyanide gas, a barbaric method from the Holocaust that courts have already rejected. At the same time, the lethal injection protocol the State has designed would unnecessarily cause Mr. Atwood, who is disabled and must use a wheelchair, unimaginable pain while strapped to the execution table. Serious questions also remain as to the safety and sterility of the drugs to be used. 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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Phoenix Newspapers, Inc. has demanded the Arizona Department of Corrections, Rehabilitation & Reentry comply with the permanent injunction issued by the U.S. District Court, which requires execution witnesses be permitted “to view the entirety of the execution.” In Mr. Dixon’s execution, when the curtains separating the execution chamber from the witness room were opened, Mr. Dixon was already strapped to the gurney and covered with a blanket. Phoenix Newspapers, Inc. also demands that the Arizona Republic be permitted to attend upcoming executions, including Frank Atwood’s, as a media witness. Read the Republic’s story and the demand letter at AZ Central.

According to media witnesses, it took 25 minutes for the execution team to insert an IV into Mr. Dixon. Eventually, the team made an incision in his groin in order to access a vein, requiring them to clean up “a fair amount of blood.” After the drugs were administered, Dixon gasped and then lost consciousness after a few minutes. Read additional reporting from AZ Central.

Jimmy Jenkins reports on the significant length of time it took the Dixon execution team and prior execution teams to access a vein in order to conduct the lethal injection execution. Read that story from AZ Central.

Austin Sarat also discusses the botched execution at Verdict.

Media is reporting that Mr. Dixon was executed this morning. There was a delay due to the execution team having trouble finding a suitable vein. Mr. Dixon is reported to have appeared to be in pain. Follow updates at AZ Central.

From the Washington Post, Arizona Republicans have a serious disconnect on how they value life

NOT FOR ATTRIBUTION, OTHER THAN THE QUOTATION

Today (May 3, 2022), the Attorney General has secured a warrant to execute Frank Atwood in 35 days, on June 8, 2022. Arizona Constitutional law requires Mr. Atwood to choose between two methods: lethal injection or lethal gas. Each method can be conducted constitutionally under United States Supreme Court precedent, but the Arizona Department of Corrections is unprepared to conduct either one without knowingly inflicting torturous pain on Mr. Atwood, picking up from Arizona’s last execution, nearly eight years ago in July 2014, which grossly violated the prohibition against cruel and unusual punishments during a two-hour killing of Joseph Wood—entailing the use of 15 injections, instead of one, and his gasping for air over 600 times before succumbing.

Mr. Atwood now imminently faces deciding which method the Department of Corrections will use, knowing that under its procedures, which call for either compounded pentobarbital injection or cyanide gas, either will cause him maximum pain and suffering. This Hobson’s choice, unless corrected, condemns Mr. Atwood to a violent, severely painful death, whichever method is selected. Unless he is dissuaded from choosing cyanide gas as somehow the lesser of two evils, Mr. Atwood will be the first person in this century to die in Arizona’s gas chamber by Nazi Germany’s method for carrying out its Holocaust.

BACKGROUND:

Rather than designating a constitutional lethal gas, such as nitrogen or helium which would lawfully, simply, and humanely end life, the Department of Corrections’ current published protocol, last revised April 20, 2022, has designated sodium cyanide, a form of poison gas known as Zyklon B when Nazi Germany used it to exterminate millions. In modern times, Arizona has executed two men by cyanide gas, the last occurring in 1999. In 2021, the Department of Corrections renewed its specification of sodium cyanide gas for use in lethal gas executions. Further, records published that year also reflect that the Department failed to procure the correct form of cyanide, buying potassium cyanide instead. Witnesses to the Arizona cyanide gas executions in 1992 and 1999 reported the prolonged, violent convulsing, coughing, and agonizing deaths.  

Despite the known horrors of cyanide gas, Mr. Atwood, whose mother escaped Nazi persecution in her childhood home of Austria, must now be persuaded to forego such a death and to choose lethal injection. Arizona law requires that he designates by May 19, 2022, twenty days prior to his execution date, whether he will select a lethal gas execution. Mr. Atwood’s disability, which stems from years of neglect and mistreatment at the hands of the Department of Corrections, coupled with the Department’s preparedness to resume using compounded chemicals in lethal injections, execution by execution preparing a new batch of drugs, creates an unconscionable dilemma between avoiding cyanide gas and accepting the compounded pentobarbital protocol.

Mr. Atwood, 66, is disabled by a severe degenerative spinal condition and has been bound to a wheelchair for years. The Department of Corrections’ lethal injection protocol dictates that he will be stretched flat on his back on the execution table with his legs and feet restrained. Due to his spinal disease, strapping him to the execution table will cause the maximum severity of pain throughout his lower extremities, with pain signals to his body matching that which would result from medieval torture techniques. Thus, even if the Department were to have adequate execution chemicals prepared by an unidentified pharmacist and their compounded pentobarbital injection went exactly to plan, those plans will inflict on Mr. Atwood the severest conceivable level of pain. Despite new Arizona legal obligations following the Department’s 2014 debacle and designed to demonstrate the adequacy of lethal injection chemicals before their use in any execution, the Attorney General’s court filings since April 2021 have evaded the Department’s basic requirements to prove the compounded chemicals will be adequate to humanely cause death. In July 2021, the Arizona Supreme Court cancelled execution warrant scheduling due to the Attorney General’s admission that initial representations made about the compounding process were wildly inaccurate. And while those issues have not been resolved, the Arizona Supreme Court denied Mr. Atwood’s request for factual development and issued a warrant for his execution today. 

Mr. Atwood has always maintained his innocence in the 1985 Tucson disappearance and death of an 8-year-old girl, for which he was convicted in 1987 based on a largely circumstantial case and sentenced to death by a judge, not a jury. Over twenty years ago, Father Paisios, Abbot of the St. Anthony’s Monastery in Florence, baptized Mr. Atwood. Mr. Atwood is a devout observer and scholar of Greek Orthodoxy, which prepares him to meet his end at the hands of the State. Father Paisios intends to administer last rites to Mr. Atwood by physical contact and verbal recitations, but the faithful performance of this ancient sacrament in its traditional manner may be foreclosed by the need for Mr. Atwood to enter Arizona’s gas chamber to die by cyanide gas. In any case, religious exercise at this most critical moment is not satisfied merely by allowing the presence of a spiritual advisor in the execution chamber, the man receiving last rites must be lucid to receive them, not dissociating from his torturous pain.

End Note:

Article XXII, § 22 of the Arizona Constitution, provides that individuals sentenced to death for an offense committed before November 23, 1992, may elect lethal gas, which prior to that amendment was Arizona’s single method of execution since 1933. Mr. Atwood’s conviction concerns a crime committed in 1985.

QUOTATION:

The Department of Corrections presents false choices to Mr. Atwood, who is disabled and has been a wheelchair-user for many years. On the one hand is lethal injection, for which the Department is unprepared to proceed and, due to Mr. Atwood’s severe spinal condition, would inflict maximum pain throughout the process. On the other hand is cyanide gas, used by Nazi Germany to exterminate millions in the Holocaust. The State of Arizona needs a constitutional gas option and one is readily in reach. By designating cyanide gas, the Department is cynically forcing Mr. Atwood to accept the torture of a lethal injection, playing out a version of the grim fate that befell the last person subjected to that method in Arizona, who was strapped to the execution table for over two hours, hopelessly gasping for air over 600 times. If the Department fails to revise its procedures to provide a constitutional form of lethal gas, such as nitrogen, then Arizona law should be revised to permit execution by firing squad, a simple and inexpensive method used since the advent of firearms. This effective method of carrying out the death penalty is applicable in several states, though avoided by others because, perhaps, the process of shooting somebody in their heart or head is transparent and lacks what some consider to be the dignity that lethal injection lends to capital punishment. –Joseph Perkovich