Arizona Capital Representation Project

From Newsweek:

Arizona Supreme Court Sets Deadline For Warrant Seeking Frank Atwood’s Execution

By Khaleda Rahman, May 26, 2021 

The Arizona Supreme Court has set a deadline for prosecutors to request a warrant to execute the state’s first death row inmate since a botched execution in 2014.

Arizona’s highest court said prosecutors have until July 21 to request a warrant to execute convicted killer Frank Atwood, 64. The order said the court expects to consider the state’s request on August 24.

The court also rejected Atwood’s request to hear evidence about the execution protocol.

Prosecutors have said the pentobarbital to be used in the execution would expire 90 days after the chemical powder is compounded into an injectable fluid, but Atwood’s attorneys say the drug is unusable 45 days after it is compounded, according to the Associated Press.

Joseph Perkovich, one of Atwood’s attorneys, also said the state should not seek an execution warrant for Atwood “given the persisting serious unanswered questions” about his conviction and sentence.

“Moreover, much more needs to be learned about the compounded pharmaceuticals Arizona plans to use in the numerous executions the Attorney General has stated he expects to carry out,” Perkovich said in a statement to Newsweek.

“Arizona’s courts need to ensure that the state does not attempt executions with inadequate drugs that would fail to take the condemned’s life or would cause severe pain in violation of the Constitution.”

Perkovich said Atwood has been wheelchair-bound for years due to “severely degenerative spinal conditions,” and that it “presents special risks for a failed execution.”

He added: “The state of Arizona’s abysmal track record requires meaningful scrutiny of its plan but, so far, the state judiciary has shown no regard for the gravity of the power that the Attorney General intends to exercise.”

Atwood and Clarence Dixon are the first inmates Arizona is seeking to put to death since the prolonged execution of Joseph Wood in 2014. Wood’s execution took almost two hours, and witnesses reported he gasped and struggled to breathe for much of that time.

Arizona officials had struggled to obtain lethal injection drugs in the years since Wood was executed, but they revealed in March that they had obtained pentobarbital and could resume executions.

Last month, Arizona Attorney General Mark Brnovich’s office announced he had notified the state Supreme Court of his intent to seek execution warrants for Atwood and Dixon, and asked the court to establish a briefing schedule so the office can comply with the Arizona Department of Corrections, Rehabilitation and Reentry’s testing and disclosure obligations regarding the drug that will be used in the executions.

“On September 17, 1984, 8-year-old Vicki Lynn Hoskinson rode her pink bicycle to mail a letter and never came home,” Brnovich tweeted Tuesday.

“Today, the Arizona Supreme Court set a briefing schedule for the warrant of execution of the person responsible for her death.”

Arizona’s push to resume executions comes as officials in Texas, the nation’s busiest death penalty state, came under fire after Quintin Jones was executed last week without any media witnesses present.

From KJZZ:

Arizona Supreme Court Sets Execution Warrant Briefing Schedules For 2 Death Row Prisoners

By Jimmy Jenkins, May 25, 2021

The Arizona Supreme Court has set timetables for the state to make its case for conducting the first executions in seven years.

The court granted requests from Attorney General Mark Brnovich to set briefing schedules for pursuing warrants of execution for prisoners Frank Atwood and Clarence Dixon.

Attorneys for Atwood previously asked the Supreme Court to deny the attorney general’s request to set the briefing schedule, citing an ongoing appeal and what they called “unanswered questions” in the case.

Assistant Federal Public Defender Dale Baich, an attorney for Dixon, requested the Supreme Court postpone the ruling on the attorney general’s request for an execution timetable until the fall.

In their recent orders, the Supreme Court denied those requests.

After the attorney general files the motions seeking the warrants, responses from defense attorneys and replies to those responses will be due to the court by Aug. 11 for Atwood and Sept. 2 for Dixon.

Arizona Supreme Court spokesperson Aaron Nash said if the court issues the warrants, “then that moves to that next step that’s in statute, authorizing the director of the Department of Corrections to schedule the execution within 35 days.”

In response to the state supreme court setting the briefing schedule, Atwood attorney Joseph Perkovich said “much more needs to be learned about the compounded pharmaceuticals Arizona plans to use in the numerous executions the Attorney General has stated he expects to carry out.”

“The state of Arizona’s abysmal track record requires meaningful scrutiny of its plan,” Perkovic said. “But, so far, the state judiciary has shown no regard for the gravity of the power that the Attorney General intends to exercise.”

Dixon was convicted and sentenced to death for the 1978 killing of Deana Bowdoin, a 21-year-old Arizona State University student.

Atwood was convicted in Pima County and sentenced to death for killing 8-year-old Vicki Lynn Hoskinson in 1984. Authorities say Atwood kidnapped the girl, whose body was found in the desert northwest of Tucson.

According to the attorney general, there are currently 115 prisoners on Arizona’s death row and approximately 20 have exhausted all appeals.

Associated Press contributed to this report.

From the Arizona Capitol Times:

Executions for 2 inmates draw nearer

By Kyra Haas, May 25, 2021

The Arizona Supreme Court on Tuesday set deadlines for the state attorney general to file his motions for warrants of execution for two death row inmates.

Those inmates, Frank Atwood and Clarence Dixon, are two of 21 people on Arizona’s death row who the state says have exhausted their appeals.

The last execution in the state was nearly seven years ago, when in 2014 Joseph Wood took nearly two hours to die as he was given 15 doses of the sedative Midazolam and hydromorphone, a painkiller.

The deadlines come after Arizona Attorney General Mark Brnovich made the unusual request for firm briefing schedules from the state’s high court in April. He said adhering to a set schedule would ensure the Arizona Department of Corrections, Rehabilitation and Reentry is able to comply with lethal drug testing and disclosure obligations.

The court’s deadline for the motion for the warrant of execution for Atwood is 5 p.m. July 21. Atwood’s counsel will have until Aug. 4 to respond.

For Dixon, Brnovich has until 5 p.m. Aug. 12 to file his motion for the execution warrant, and Dixon’s counsel has until Aug. 26 to respond.

“An extension will not be granted absent highly extraordinary circumstances,” according to both orders.

The court also denied a habeas corpus petition that Dixon submitted on his own behalf, saying his claims were “factually unsupported, meritless, and precluded.”

Atwood’s attorneys say 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. His attorney Joseph Perkovich said in a statement today that there are “persisting serious unanswered questions” about Atwood’s conviction and sentence and that the state should not seek an execution warrant.

Perkovich also raised questions about the drugs the state plans to use in its executions and questioned the court’s level of scrutiny of the state’s execution plans.

“The State of Arizona’s abysmal track record requires meaningful scrutiny of its plan but, so far, the state judiciary has shown no regard for the gravity of the power that the Attorney General intends to exercise,” Perkovich said in a statement.

ADCRR paid $1.5 million for 1,000 vials of pentobarbital sodium salt in October 2020, according to a heavily redacted document obtained by The Guardian last month. That’s the same drug that was used in federal executions last year. An attempt to import sodium thiopental from India in 2015 ended with Customs and Border Protection seizing the drugs at Sky Harbor International Airport.

From the Associated Press:

Deadline set for seeking warrant for prisoner’s execution

May 25, 2021

PHOENIX (AP) — The Arizona Supreme Court has set a July 21 deadline for prosecutors to request a warrant that would trigger the state’s first execution in almost seven years.

The state’s highest court said it expects on Aug. 24 to consider the state’s request to execute death-row inmate Frank Atwood.

Atwood and Clarence Dixon are the first death row prisoners in Arizona to be eyed for execution since the 2014 death of Joseph Wood, who was given 15 doses of a two-drug combination over two hours. Wood’s attorney said the execution was botched.

Atwood was convicted in Pima County and sentenced to death for killing 8-year-old Vicki Lynn Hoskinson in 1984. Authorities say Atwood kidnapped the girl, whose body was found in the desert northwest of Tucson.

The state Supreme Court also rejected Atwood’s request for a court hearing over prosecutors’ claim that the pentobarbital to be used in the execution would expire 90 days after the chemical powder is compounded into an injectable fluid.

Atwood’s lawyers maintain the drug is unusable 45 days after it’s compounded.

(May 25, 2021) Despite the many unanswered questions that leave grave doubt about whether Frank Atwood is responsible for the crime for which he faces execution, the Arizona Supreme Court has granted the state Attorney General’s motion to begin the process of setting an execution date for him this fall. The court’s ruling allows the Attorney General to formally request, in July, an execution warrant for Mr. Atwood, setting the stage for an execution date by as soon as late September.

Arizona has not carried out an execution since 2014, when it took nearly two hours to end the life of Joseph Wood. In opposing the Attorney General’s motion, Mr. Atwood pointed to the State’s failure to establish that it can comply with Arizona’s own execution protocol using unregulated, compounded pharmaceuticals. The Attorney General’s proposed timeline for executions means that it is picking up where it left off in 2014, once again risking a botched execution. Despite the red flags surrounding the shadowy lethal injection plans, the Arizona Supreme Court denied Mr. Atwood’s request to hear evidence about the execution protocol.

Below is a statement from Joseph Perkovich, an attorney for Frank Atwood:

“Given the persisting serious unanswered questions about Frank Atwood’s conviction and sentence, the State should not seek an execution warrant. Moreover, much more needs to be learned about the compounded pharmaceuticals Arizona plans to use in the numerous executions the Attorney General has stated he expects to carry out. Arizona’s courts need to ensure that the State does not attempt executions with inadequate drugs that would fail to take the condemned’s life or would cause severe pain in violation of the Constitution. Mr. Atwood, who is 65 years old and has been wheelchair-bound for years due to severely degenerative spinal conditions, presents special risks for a failed execution. The State of Arizona’s abysmal track record requires meaningful scrutiny of its plan but, so far, the state judiciary has shown no regard for the gravity of the power that the Attorney General intends to exercise.”

– Joseph Perkovich, attorney for Frank Atwood

– May 25, 2021
Order (from AZ Supreme Court) for Filing of the Motion for Warrant of Execution of Mr. Atwood: https://tinyurl.com/4xmwswnw

For more information or to speak with an attorney, please contact Joseph Perkovich, gro.kcalbspillihpnull@hcivokrep.j

Jimmy Jenkins reports on Frank Atwood’s motion for evidentiary development regarding the shelf-life of compounded pentobarbital.

https://apnews.com/article/arizona-executions-08d613610165a023a5cd4db2be85a8f6

Prisoner disputes shelf life of Arizona’s execution drug

By Jacques Billeaud, April, 2021

PHOENIX (AP) — An Arizona death row prisoner, who would be among the state’s first executions in almost seven years, has filed documents arguing the lethal injection drug to be used would expire sooner than prosecutors maintain and that makes it impossible to carry out his execution.

In a filing Wednesday, attorneys for Frank Atwood asked the Arizona Supreme Court to order a lower court to hold a hearing over the state’s claim that the pentobarbital to be used in their client’s execution would expire 90 days after the chemical powder is compounded into an injectable fluid. His lawyers contend the drug is unusable 45 days after it’s compounded.

Atwood’s attorneys said there isn’t enough time within the 45-day shelf life to request an execution warrant, compound the drug, test it to verify it will be effective in killing him and then carry out the execution. “The patently incorrect claim that the drugs will be good for 90 days is serving to distract from the Attorney General’s real problem with his choice of pentobarbital for Arizona’s return to executions,” Joseph Perkovich, one of Atwood’s lawyers, said in a statement.

Attorney General Mark Brnovich’s office has said it’s asking the state’s highest court to set a litigation schedule before the warrant is filed so that the briefings don’t extend the execution date beyond the drug’s 90-day shelf life. Prosecutors said the drug must be compounded shortly after they make the execution warrant request to give enough time to conduct a mandatory quantitative test of the drug.

Under the sequence of filings laid out by the attorney general’s office, Atwood’s attorneys would have 10 days to respond after prosecutors file a request for his execution warrant, and prosecutors would then get another five days to file a reply. An execution date would be set for 35 days after the Supreme Court issues a death warrant, prosecutors said.

Prosecutors said in court filings that they weren’t trying to abandon procedure or create new rule, but rather were trying to ensure the litigation process was orderly.

“General Brnovich is committed to upholding the rule of law and opposing erroneous legal arguments and misguided antics to delay the administration of justice,” Katie Conner, a spokeswoman for the attorney general’s office, said in a statement. “We must always stand up for the victims, their families and our communities.”

Atwood and Clarence Dixon are the first death row prisoners in Arizona to be eyed for execution since the 2014 death of Joseph Wood, who was given 15 doses of a two-drug combination over two hours. His attorney said the execution was botched.

States including Arizona have struggled to buy execution drugs in recent years after U.S. and European pharmaceutical companies began blocking the use of their products in lethal injections. Arizona corrections officials revealed earlier this year that they had finally obtained a lethal injection drug and were ready to resume executions.

Arizona has 115 inmates on death row.

Earlier this month, Brnovich’s office told the state’s highest court that it intended on seeking execution warrants for Dixon and Atwood soon.

Dixon was convicted and sentenced to death for the 1978 killing of Deana Bowdoin, a 21-year-old Arizona State University student.

Atwood was convicted in Pima County and sentenced to death for killing 8-year-old Vicki Lynn Hoskinson in 1984. Authorities say Atwood kidnapped the girl, whose body was found in the desert northwest of Tucson.

Attorneys for Atwood and Dixon had previously asked the state Supreme Court to hold off on scheduling the litigation over their upcoming death warrants, arguing the pandemic had made it hard for them to prepare defenses for their clients due to a ban on visits inside state prisons over the last year.

Brnovich’s office said Atwood’s attorneys could have visited with their clients by phone or video link for the past year and noted that corrections officials have recently allowed limited in-person visits between death row prisoners and their lawyers.

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.

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.

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.

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.

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.

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.