Arizona Capital Representation Project

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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