arizona-executive-order-2023-05-establishing-a-death-penalty-independent-review-commissioner-2
What’s New
Austin Sarat writes at Slate about three executions over the span of two days–November 16 and 17–were badly botched. In Murray Hooper’s execution, the team could not access a peripheral vein and resorted to accessing his femoral vein in his groin. Arizona law prevents the defense team or the public from learning the identities of the execution team members, who routinely struggle to access peripheral veins, or determining whether they have adequate training.
Jimmy Jenkins of the Arizona Republic also writes about the botched executions and Arizona’s “veneer of medicalization” on lethal injection.
On November 10, the Arizona Supreme Court affirmed the lower court’s denial of Mr. Hooper’s request for DNA testing and fingerprint testing. These requests were made pursuant to Arizona’s DNA and forensic testing statutes. Read the decision here.
On November 15, the Ninth Circuit Court of Appeals also rejected Mr. Hooper’s request for DNA testing, pursuant to the Rooker-Feldman doctrine, which prohibits the appeal of a state court judgment to a federal court. The Ninth Circuit’s decision is available here.
Arizona is set to execute Murray Hooper, age 76, on November 16 at 10 a.m. Mr. Hooper has maintained his innocence for more than 40 years and has requested DNA and fingerprint testing, which the State has opposed. There were significant problems with Mr. Hooper’s trial, including a mistaken identification, the use of paid informant testimony, and significant police misconduct.
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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Atwood is asking Court to halt his execution while it weighs a post-conviction relief petition based on innocence claims, state’s withholding of evidence
PHOENIX—Today, attorneys for Frank Atwood filed a legal motion with the Arizona Supreme Court to stay his execution as the Court weighs a separate petition asking the Court to vacate his conviction and give him a new trial based on innocence claims and the state’s suppression of evidence implicating an alternate suspect.
“Arizona is on the brink of torturing and executing Mr. Atwood for a crime he did not commit and based on a conviction obtained after the state violated Mr. Atwood’s constitutional rights by withholding evidence,” said Sam Kooistra, counsel for Mr. Atwood. “Executing Frank Atwood would be a deep and irreparable miscarriage of justice.”
Mr. Atwood has always maintained his innocence but was convicted in a circumstantial case that lacked hard physical evidence or eyewitnesses. After thoroughly inspecting Mr. Atwood’s car following his arrest, the FBI 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.
The motion for a stay of execution was filed the same day as the Phoenix-based U.S. District Court of the District of Arizona is hearing arguments to determine whether to grant a preliminary injunction temporarily halting Frank Atwood’s execution while it determines whether Arizona must designate a new method of 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 Arizona Constitution guarantees a choice between lethal gas or lethal injection. 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. Lethal injection is the most frequently botched method of execution, with many recent executions going catastrophically wrong.
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Arizona’s use of Zyklon B should shock the conscience of all Americans.
On June 8, the State of Arizona is scheduled to execute Frank Atwood. Atwood, whose mother escaped Nazi persecution in Vienna, faces a perverse choice: suffer execution by lethal injection, or by hydrogen cyanide gas, a version of which was used by the Nazis to murder more than one million Jewish people at Auschwitz. Arizona last used cyanide gas in 1999 to execute Walter LaGrand. The state killed him violently, in all of our names, through a painfully slow asphyxiation that dragged on for an unfathomable 18 minutes.
Arizona’s commitment to this hideous execution method should shock the conscience of all Americans. It is particularly appalling to me as the board chair of the Jewish Community Relations Council (JCRC) of Greater Phoenix, and to my broader community. Earlier this year, we sued the state of Arizona to stop it from using this barbaric execution tool, infamous as the primary chemical deployed in Nazi death camps during the Holocaust.
This is the first time the JCRC has ever been a litigant. We hope it is the last.
The killing of another human being through a practice known to cause pain and suffering undermines everything the Jewish people stand for. Judaism introduced to the world the idea that every life is imbued with infinite value. Long before the constitutions of Arizona or the United States banned cruel and unusual penal punishments, the Jewish people opposed them, as they diminish the humanity and dignity of everyone involved, the punished and those who inflict the punishment alike.
For thousands of years, Jewish teachings have inveighed against practices common in the cities, nations, and empires where we lived: mutilation, burning at the stake, and throwing the condemned into a funeral pyre, to name only a few. Those same moral and ethical values require us to stand against a practice that we recognize, from our own tragic history, as highly likely to cause severe pain and suffering.
We are shocked that Arizona is proposing to use the very same chemical compound used by Nazis — often referred to as Zyklon B. Indeed, the resumption of this practice risks, for Holocaust survivors, reliving a trauma they have spent their lifetimes trying to forget.
As Jews, we aspire to make our society a light unto the nations. On this matter, Arizona stands out for its darkness. Nearly the entire civilized world — and most of the United States — has abandoned the use of Zyklon B. No state has used it to execute for more than 20 years. There is no question that killing a person with hydrogen cyanide is both cruel and unusual. In fact, Frank Atwood’s lawyers argue that forcing him to choose between cyanide gas and lethal injection violates his rights.
The state has raised many defenses to our suit, most of them hyper-technical, legal ones that, if adopted, would prevent any challenge to a state’s use of any method of execution, no matter how cruel or unusual. What is absent from the state’s arguments is any argument that killing another human being with hydrogen cyanide is anything but cruel or unusual.
As June 8 approaches, we continue to hold out hope that the state will confess explicitly what it concedes implicitly — that killing a person with Zyklon B is torture and thus that we, following every other state and the community of civilized nations, should bar its potential use. This hideous Nazi weapon of the Holocaust should be banished to history, not resurrected to wield violence in the name of Arizonans.
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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