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AZ Central on Arizona’s Motion to Modify Briefing Schedule

Posted by emily on June 24, 2021
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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.”

KJZZ: Arizona Backtracks On Expiration Date For Death Penalty Drugs

Posted by emily on June 23, 2021
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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.

I watched Don Harding’s execution in an Arizona gas chamber. His face still haunts me

Posted by emily on June 08, 2021
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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.

New York Times: Outrage Greets Report of Arizona Plan to Use ‘Holocaust Gas’ in Executions

Posted by emily on June 02, 2021
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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.

Arizona wants to use Zyklon B to execute inmates on death row

Posted by emily on June 01, 2021
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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.

Arizona ‘refurbishes’ its gas chamber to prepare for executions, documents reveal

Posted by emily on May 28, 2021
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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.

Media Coverage on Arizona Supreme Court’s scheduling orders for Frank Atwood and Clarence Dixon

Posted by emily on May 26, 2021
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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.

Court Allows Arizona AG to Seek Execution Date for Frank Atwood Despite Serious Unanswered Questions About His Conviction

Posted by emily on May 25, 2021
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(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

KJZZ: “Attorneys For Arizona Death Row Prisoner Request Hearing Over Lethal Injection Drugs”

Posted by emily on May 05, 2021
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Jimmy Jenkins reports on Frank Atwood’s motion for evidentiary development regarding the shelf-life of compounded pentobarbital.

Prisoner disputes shelf life of Arizona’s execution drug

Posted by Kirsty Davis on April 29, 2021
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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.