ABC15 in Phoenix offers additional coverage of the Arizona Supreme Court’s order denying the Attorney General’s request to modify the briefing schedule on their planned motion for execution warrants for Clarence Dixon and Frank Atwood. Read the article here.
Archive for 2021
The Arizona Supreme Court has denied the State’s request to modify the briefing schedule for its motions for execution warrants in the cases of Clarence Dixon and Frank Atwood. The court also vacated the briefing schedule and ordered that the state may renew its request after it completes specialized testing of the compounded pentobarbital. Media coverage is below.
https://kjzz.org/content/1698805/arizona-supreme-court-postpones-executions-sought-attorney-general
https://www.kold.com/2021/07/12/arizona-supreme-court-state-cant-rush-execution-long-standing-death-row-inmates/
July 12, 2021
TUCSON, Ariz. (KOLD News 13) – The Arizona Supreme Court made several rulings on Monday, July 12 that would prevent the state from executing two death row inmates until it can prove the execution would not violate the inmates’ constitutional rights.
The Supreme Court denied the Arizona Attorney General’s requests to speed up the executions of Frank Atwood and Clarence Dixon who had each been on death row for decades. The Supreme Court’s decision cited the state’s revelation that it had relied on false information about the shelf life of its execution drugs. The Supreme Court also granted both inmates’ requests to vacate the briefing schedule established in May.
Dale Baich, an attorney of Dixon’s, said in a news release the state had a “problematic” history of handling prescription drugs, including the 2014 execution of Joseph Wood, during which the combination of drugs did not work as intended, and the state’s attempt to illegally import foreign execution drugs the following year.
“In order to prevent this troubling history from repeating itself, Arizona must stop its attempt to rush executions,” Baich was quoted as saying.
The state in June refurbished its gas chamber after a seven-year hiatus and bought the materials to make hydrogen cyanide, drawing criticism due to the chemical’s use by Nazi’s to kill 865,000 in Auschwitz concentration camp. The state also struggled to obtain suppliers for the executions, but revealed this spring it had gotten a shipment of pentobarbital.
The Supreme Court in May granted the state’s request for a briefing schedule for to issue a warrant for Dixon’s execution. The state sought the briefing schedule based on the belief that the drugs would have a 90-day shelf life. During the next month, the state asked to shorten the schedule, now arguing that the drugs’ shelf life was 45-days and Dixon needed to be executed before they expired.
The shortened schedule would have denied Dixon sufficient time to respond to the state’s request for an execution warrant, his attorneys said in a news release.
State prosecutors initially asked that Dixon be executed in September, but because of state law, the execution would have likely been set the month after.
Atwood was sentenced to death after he kidnapped and murdered 8-year-old Vicky Lynn Hoskinson in 1984. Dixon was sentenced for the 1978 murder of 21-year-old Deana Bowdoin in Maricopa County.
An attempt Monday to reach the Attorney General’s Office for a response to the rulings was not immediately successful.
Attorneys ask court to reject request to expedite hearings for Arizona death row inmates
By Lacey Latch, July 7, 2021
Corrections & Clarifications: A previous version of this article misstated the plans for the executions of two death row inmates. The state of Arizona has requested two dates for executions, but those had yet to be scheduled.
Attorneys for death row inmate Clarence Dixon have filed an objection to Attorney General Mark Brnovich’s request to expedite the execution schedules for Dixon and another convicted murderer, Frank Atwood, after the state acknowledged the lethal injection drug would expire sooner than previously announced.
Instead of the 90-day shelf-life previously claimed by the state, the lethal injection drug only maintains its potency for up to 45 days after it is compounded. That happens shortly after an official warrant for execution is issued.
The shortened shelf-life of the drug limits the time available for the state to file an execution warrant, test the drug and carry out the death sentence. As a result, the Attorney General’s Office proposed that the court expedite the hearing schedules for the two inmates to complete the executions as scheduled.
Doing so also would decrease the amount of time the men have to respond to filings and seek legal options regarding their executions.
“The State of Arizona has full control over its execution drugs, and it sought the original briefing schedule based on information received from its own pharmacist,” said Dale Baich, one of Dixon’s attorneys. “The state now says that pharmacist was wrong. This is not the first time Arizona has had problems with execution drugs.”
The Attorney General’s Office did not immediately return a request for comment on the filing.
Why gas chamber is an option
All filings in the case were submitted to the Arizona Supreme Court.
This legal battle is the latest in a series of issues the state has had with execution drugs. Most recently, as Arizona prepares to possibly resume use of a gas chamber, an investigation found that state officials had bought the wrong type of cyanide than the one called for in newly published protocols.
While Arizona voters banned the use of the gas chamber nearly 30 years ago, state law still allows for inmates whose crimes were committed prior to the change in 1992 to choose their manner of execution, whether by gas or lethal injection. This includes both Dixon and Atwood, whose crimes were committed in 1978 and 1984, respectively.
The state wants to schedule Atwood’s execution for Sept. 28 and set Dixon’s execution for a few weeks later, on Oct. 19. Neither man has publicly discussed their manner of death decision but they each must declare their choice at least 20 days prior to their execution date.
Botched execution, illegal imports
Part of the reason the potency of the drug is a major focus is the botched execution of Joseph Wood in 2014. After two hours of gulping for air as 15 doses of the drug coursed through his veins and his lawyers searched for a judge to stay the execution, Wood ultimately succumbed to the toxic chemicals and the state faced severe backlash as a result.
Arizona was forced to temporarily suspend executions and overhaul protocols and procedures, including adopting a new drug cocktail and enduring the lengthy process of finding an approved drug.
Both before and after Wood’s death brought national attention to the state’s execution practices, Arizona tried to illegally import execution drugs. In 2010, the U.S. Drug Enforcement Administration confiscated drugs bound for several states including Arizona.
Five years later the Arizona Department of Corrections paid almost $27,000 to import an illegal execution drug that was confiscated by federal authorities.
Arizona authorities ask to expedite 2 executions, citing shelf life of lethal injection drug
By Robert Anglen, June 23, 2021
The Arizona Department of Corrections said in April it was ready to resume lethal injections and spent $1.5 million for the drug needed to carry them out.
Authorities now acknowledge they were wrong about how long the lethal cocktail would last — and want to expedite the execution of two prisoners.
In a court filing on Tuesday, the Arizona Attorney General’s Office said the drug only has a 45-day shelf life once it is compounded, half of the 90 days they originally stated.
Forty-five days cuts the state’s time to file an execution warrant, test the drug and put a prisoner to death.
The state must have the drug compounded shortly after the state formally files for a warrant of execution for a prisoner, according to testing and disclosure requirements. The AG’s solution: speed up the hearing schedule for the two men so the executions can go forward as planned in the available time frame.
Frank Atwood’s scheduled execution date is Sept. 28. Clarence Dixon’s execution date is scheduled for Oct. 19. Both men were convicted of murder.
“The State respectfully requests that this Court modify the briefing schedule currently in place so that the September 28 projected execution date will fall within the 45-day initial beyond-use date of the compounded pentobarbital,” Deputy Solicitor General Lacey Stover Gard wrote in one of two June 22 motions.
The move comes after lawyers for Atwood repeatedly called out the state on claims that the compounded lethal injection drug could last for up to 90 days, citing medical journals and scientific experts who said the drug loses potency after 45 days.
“They completely agreed with our argument,” lawyer Joe Perkovich said. “They totally capitulated on everything we have said.”
Attorney General Mark Brnovich is attempting to save face by pushing the executions earlier, Perkovich said.
“He is trying to shirk responsibility for any foul-up,” Perkovich said. “He has blown a million and a half dollars on a drug he can’t legally use in Arizona.”
In addition to the purchase price of the drug, the state spent another $400,000 on pharmaceutical consulting fees, Perkovich said.
Brnovich’s office did not address questions about the drug from The Arizona Republic on Wednesday. An office spokesperson said the office filed motions to ensure the executions were done in accordance with the law.
“We must always ensure that justice is served for the victims, their families, and our communities,” spokeswoman Katie Conner said in a statement.
Officials with the Arizona Department of Corrections, Rehabilitation and Reentry also did not respond to questions about the lethal injection drug.
Botched drug, lethal gas purchases
The issue raises further questions about the state’s readiness to carry out executions. A June 4 report by The Republic revealed the state purchased the wrong gas chamber chemicals in preparation for resuming executions.
Arizona voters abolished the gas chamber nearly 30 years ago. But state law gives 17 inmates convicted of offenses before 1992, including Atwood, the choice of dying by gas or lethal injection.
The potency and the shelf life of the drug matter because of what happened during a botched lethal injection in 2014, after which executions were suspended in Arizona.
Joseph Wood snorted and gulped for air for nearly two hours as his lawyers attempted to reach an Arizona judge and halt the execution. The manner of his death led to lawsuits, required the state to adopt a new lethal injection cocktail and begin a lengthy process to find an approved drug.
The state has twice been caught trying to illegally import execution drugs.
In 2010, drugs bound for Arizona and other states were confiscated by the U.S. Drug Enforcement Administration; federal courts ruled the drugs could not be legally brought into the country. In 2015, the Arizona Department of Corrections paid nearly $27,000 to import an illegal execution drug that was seized by federal authorities.
The state in its motion on Tuesday blamed confusion about the shelf life of the lethal injection drug on a “revised opinion” from an unnamed pharmacist advising the state on the pentobarbital to be used in Atwood’s execution.
The pharmacist first told the state the drug had a 90-day shelf life.
“The pharmacist, however, has now revised that opinion and has advised (the Department of Corrections) that, until certain specialized testing of a sample batch is conducted, pentobarbital that is compounded for Atwood’s execution will have an initial beyond-use date of 45 days,” attorney Stover Gard wrote.
Testing could extend the beyond-use date of subsequently compounded doses from the same batch of pentobarbital, but she warned the court: “This testing has not yet commenced and will not be completed in time to accommodate the briefing schedule.”
Under the terms of a civil settlement after Wood’s death, the Department of Corrections is prohibited from using any chemicals with shelf lives that expire before the date of an execution, Stover Gard said in her motion.
Brnovich seeks warrants of execution
Brnovich, who this month launched his campaign for U.S. Senate, announced in April that he intended to seek execution warrants for Atwood and Dixon.
He said he would ask the Arizona Supreme Court “to establish a firm briefing schedule” that would allow the state to comply with drug testing and disclosure obligations.
“This will guarantee strict compliance with the current lethal-injection protocol and a related settlement,” Brnovich said in an April 6 statement.
Atwood, 65, was sentenced in Pima County in 1987 for the murder of an 8-year-old girl, Vicki Lynne Hoskinson. According to court records, Atwood was driving in a neighborhood looking for a child in 1984.
Atwood had a prior conviction from California for kidnapping a young boy.
Atwood spotted Hoskinson, hit her bike with his car and grabbed her. He murdered her in the desert, according to court records.
Dixon, 65, was convicted in 2008 for the 1978 murder of Deana Bowdoin, a 21-year-old senior at Arizona State University found dead inside her apartment with a belt around her neck.
Multiple lawyers have argued since the 1970s that Dixon has severe mental health issues.
Two days before Dixon murdered Bowdoin, a Maricopa County Superior Court judge ruled he was “not guilty by reason of insanity” for an attack on another woman. Sandra Day O’Connor was the judge. Dixon was released without supervision from a state hospital.
Lawyer: AG’s request ‘breathtaking’
The attorney general wants the court to ensure that once it seeks execution warrants for Atwood and Dixon that the death penalty will be carried out within the 45-day shelf life of the lethal injection drug.
“As discussed in previous pleadings, ADCRR’s compound pharmacist will compound the pentobarbital shortly after the date on which the State’s Motion is filed to comply with the protocol’s testing and disclosure requirements,” the state’s motion said.
Rather than seeking to delay the execution, Brnovich’s office asked the court to keep Atwood’s original execution date of Sept. 28 and shrink the time for filing legal motions from 90 to 45 days.
A nearly identical motion seeks the same narrow window for Dixon, whose execution date is scheduled for Oct. 19.
Perkovich, whose nonprofit law firm represents defendants in death penalty cases across the country, called Brnovich’s request “breathtaking.”
He said the 45-day window restricts the usual period for filing motions. Not only will lawyers lose chances to respond, the Arizona Supreme Court will have no time to consider arguments, he said.
The request is “unprecedented and a radical departure” from the way execution motions have been handled since the reinstatement of capital punishment in the 1970s, Perkovich said.
“The most grave thing that a court does is put someone to death,” he said. “This is asking the Supreme Court to be a rubber stamp for the attorney general.”
Jimmy Jenkins reports on the Arizona Attorney General’s request to modify the briefing schedule on its requests to obtain execution warrants for Clarence Dixon and Frank Atwood. The request comes because the AG’s office previously stated that, once compounded, the pentobarbital it intends to use to carry out lethal injections has a shelf-life of 90 days. The AG now concedes that the shelf-life is only 45 days. Read the article and see related documents and pleadings here.
Attorney Jim Belanger has published an op-ed in the Arizona Republic regarding his experience witnessing his client’s execution by lethal gas. Read the opinion piece here.
The New York Times and others, including Al Jazeera and CBS News report on Arizona’s plan to use hydrogen cyanide to execute death row inmates. The reports note that Arizona’s lethal gas protocol does not allow for the use of hydrogen cyanide, a gas used by the Nazis to kill more than a million prisoners at Auschwitz, including 865,000 Jewish prisoners.
The Jerusalem Post reports on Arizona’s plan to use hydrogen cyanide, known as Zyklon B during the holocaust, to execute inmates. Read more here.
Prior lethal gas executions in Arizona have been lengthy and painful. James Belanger, attorney for executed inmate Don Harding, describes the agony of watching his client suffocate over ten minutes. Read Mr. Belanger’s declaration here.
The Guardian reports that Arizona has refurbished its gas chamber and is prepared to execute inmates with hydrogen cyanide – the same gas used at Auschwitz. Read the article here.
