Arizona Capital Representation Project

Trump’s Killing Spree Continues

Arizona follows a model that lets the government ignore questions of cruelty.

https://www.nytimes.com/2021/04/15/opinion/death-penalty-arizona.html

By Elizabeth Bruenig, April 15, 2021

Arizona’s attorney general, Mark Brnovich, has a problem: There’s no easy way to kill people. Arizona hasn’t carried out any executions since it bungled the killing of Joseph Wood in 2014, leaving him gasping and gulping for air during the roughly two hours it took him to die from a lethal injection. In a country where cruel and unusual punishment is constitutionally prohibited, Mr. Wood’s long and agonizing demise belied assurances that lethal injection is humane and scientific, providing a death akin to falling asleep.

But Arizona’s pause in executions may be nearing an end — not because someone has produced a cruelty-free method of killing a person, but because the state is following the blueprint pioneered by the Trump administration when it pushed through 13 federal executions in its final months.

In 2019, Attorney General Bill Barr announced that the federal government would resume executions after a 17-year lapse caused by the unavailability of certain lethal chemicals, and despite a still-pending lawsuit concerning the method of execution itself. Mr. Barr announced that the Justice Department had procured the sedative pentobarbital, often used to euthanize animals, from secret sources and that it would begin executing prisoners with that drug alone.

As soon as Mr. Barr shared his news — what pride the prospect of 13 corpses can supply! — Mr. Brnovich began lobbying Gov. Doug Ducey of Arizona to follow his lead. Mr. Barr’s announcement, Mr. Brnovich wrote to Mr. Ducey, “suggests that the federal government has successfully obtained pentobarbital. These recent developments establish that it is now time to resume executions in Arizona.”

Mr. Brnovich got his wish. But legal challenges to death by lethal injection still remain, and it’s not at all clear that the way America kills Americans comports with our own founding principles.

Because the Eighth Amendment contains no explanation of what its ban on cruel and unusual punishment means, the Supreme Court has held that the principle “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” And yet the court has also held that in order to successfully challenge a method of killing on Eighth Amendment grounds, a prisoner must provide an alternative that is “feasible, readily implemented” and likely to significantly reduce a “risk of severe pain.” In other words, the question of whether evolving standards of decency by a maturing society would find a method of execution cruel is irrelevant; all that matters is whether the prisoner can prove there’s a better alternative.

Yet cruelty does matter. And scientific evidence suggests that pentobarbital poisoning is an excruciating way to die.

Joel Zivot, an anesthesiologist, intensive care physician and associate professor at Emory University School of Medicine, deduced as much when he pored over autopsy reports of executed prisoners. He noticed that the lungs removed from the corpses were roughly double the weight of ordinary cadaver lungs.

“The only way for that to happen would be that fluid is filling into the lungs during execution,” he said. As the bloody, frothy fluid saturated the lungs, Dr. Zivot told me, “it would be perceived by the person,” as they lay “choking to death and drowning in their own lung secretions.”

“And so I thought, well, that’s terrible,” he said. “And I’m so glad to bring it forward. And now we know, and we can dispense with this method of execution that’s clearly bad.”

Dr. Zivot began writing about the issue, then testifying in court as an expert on lethal injection for defense teams. He was disheartened — and infuriated — to find that the facts about death by lethal injection seemed irrelevant to judges.

“They seem to just believe that this doesn’t matter,” Dr. Zivot said. “I can’t make sense of it. It’s not that they say this isn’t happening. They’ll say, ‘Well, you know — it’s brief and it’s not material.’”

A great tangled mass of thought coils around the question of how much suffering ought to be inflicted upon a person as the state kills him.

“To constitute cruel and unusual punishment, an execution method must present a ‘substantial’ or ‘objectively intolerable’ risk of serious harm,” Chief Justice John Roberts wrote in a 2008 opinion.

What do courts consider serious harm when death is the intended outcome?

“I would say they are looking for pain,” Megan McCracken, a capital defense attorney and expert on method-of-execution challenges, told me. “And they’re looking often for a drawn-out process. But they never find it.”

Yet past lethal injection protocols have included paralytics, which would prevent prisoners from describing their condition.

Both the federal supply of pentobarbital and Arizona’s cache of the poison were obtained in secrecy. A recent investigation by The Guardian revealed the state’s stock arrived in unmarked bottles and boxes, from a vendor not revealed to the public, with a $1.5 million dollar price tag. Other states, too, are pursuing the drug.

While a Federal District Court judge ruled last summer that injecting lethal chemicals without physicians’ prescriptions violated the Food, Drug, and Cosmetic Act, the court declined to order a remedy or relief on the grounds that no harm could be demonstrated and the execution of Keith Nelson went forward. If the courts believe that drug regulations don’t necessarily apply to killing drugs, it’s difficult to determine how anyone would know if the particular batch deployed was defective or expired, or how those flaws would affect inmates. The only people who could helpfully remark on the experience are dead.

Is it cruel to kill a person with this drug, in this era, in this particular way? Does it matter that we can’t know with any certainty, and that what we do know suggests the possibility of suffering not unlike death by drowning? Is it bad for us, as a people, to be reduced to assenting to the best kind of cruelty we can conjure, as opposed to permitting no cruelty at all?

I have seen a person poisoned to death by pentobarbital. It isn’t still, it isn’t a peaceful drifting. Someone hiding behind a wall introduces a chemical into the vein of the prisoner strapped to a gurney, helpless, as witnesses on three sides watch through glass as the prisoner dies, heaving for breath.

In his essay on cruelty, Montaigne quotes Seneca lamenting “that a man should kill a man, not being angry, not in fear, only for the sake of the spectacle.” It’s hard to think of a more fitting indictment of the American practice of execution.

If the law fails to conform to justice and Mr. Brnovich is able to set execution dates for the souls eligible for killing on Arizona’s death row, history will record that he did so using a legally dubious drug protocol that is most likely agonizing, that he did it for the sheer spectacle of it and that Mr. Barr and Mr. Trump showed him the way.

KJZZ reports thtat the Guardian has uncovered that Arizona paid $1.5 million on 1,000 grams of pentobarbital in October 2020, in order to resume executions. Read the story here.

The L.A. Times editorial board urges Arizona Attorney General Brnovich not to resume executions. Read the editorial here.

Arizona has spent $1.5 million on pentobarbital, but will not answer questions about the source of the drugs. Reporting from Capitol Media Services available at Tucson.com.

https://www.azcentral.com/story/opinion/op-ed/ej-montini/2021/04/08/arizona-crazy-use-death-penalty-mental-illness/7140425002/

Documents obtained by the Guardian show three states paying astronomical amounts to skirt – almost certainly illegally – a ban on pharmaceuticals for lethal injections. “The most jaw-dropping outlay has been made by Arizona.”

Read more here: https://www.theguardian.com/world/2021/apr/09/revealed-republican-led-states-secretly-spending-huge-sums-on-execution-drugs

(Phoenix, Arizona, April 7, 2021) As the Arizona Attorney General seeks execution dates for the first time since the botched execution of Joseph Wood in 2014, corrections professionals, religious leaders, and a murder victim’s sister are calling on the state not to restart executions. These stakeholders’ opposition to executions stems from a range of perspectives, including concerns about the trauma inflicted on correctional staff by proximity to executions, the senselessness of killing a prisoner who can be safely housed, ending any potential for redemption or reform, the harm to victims’ family members who wait years or decades for an elusive closure, and the intolerable risk of executing an innocent person.

These concerns are particularly significant given doubts about the reliability of Frank Atwood’s conviction (https://tinyurl.com/7j4792ub) and the fact that Clarence Dixon is a person with severe mental illness (https://tinyurl.com/4yvkr35k), the two prisoners for whom the Attorney General now seeks to obtain execution dates.

In a letter made public today, 21 retired correctional officials, many of whom have first-hand experience overseeing executions, called on Arizona Governor Doug Ducey asking him to stop the state from resuming executions after a seven-year hiatus. The letter states: “The psychological toll of carrying out a death sentence is well-documented. . . . Post-traumatic stress disorder, substance abuse, and even suicide increase among corrections staff following proximity to an execution, even among those who did not participate directly.” These experienced correctional leaders urged Governor Ducey not to put Arizona’s correctional staff at risk by allowing executions to resume.

The letter from 21 former corrections officials is available here: https://tinyurl.com/jw58pd77  

A similar concern was voiced by four spiritual advisors who ministered to federal prisoners before and during their executions in 2020 and 2021. They also recently wrote to Governor Ducey asking him to prevent Arizona from restarting executions. “We recognize the deep pain the families of murder victims have suffered, and we wish them peace and healing,” their letter says. “At the same time, we have seen that carrying out executions does not provide that solace, it only perpetuates a cycle of violence and harm.” The spiritual advisors described “the lasting horror of standing in a small chamber while officials methodically prepare to end the life of a human being,” and stressed that this act “ignores the human capacity for remorse and redemption.”

The letter from spiritual advisors to executed federal prisoners is available here: https://tinyurl.com/y5n8uhk6 

In a recent Arizona Republic op-ed, Arlis Keller, whose brother was murdered in Arizona in 2009, explained why she asked prosecutors to drop the death penalty from the case against his killer. As the legal case unfolded, Ms. Keller “began researching what happened during and after trials where the death penalty was sought.” She learned “that ‘closure’ is a myth,” and that “for many families, a long-awaited execution does not bring any sense of peace, leaving survivors adrift after years of living in limbo.” And she learned about “the appalling frequency with which innocent people have been convicted and sentenced to death for crimes that they didn’t commit.” She was relieved when the prosecution honored her request to drop the death penalty, leading to a plea agreement with her brother’s murderer.

Ms. Keller’s op-ed is available here:  https://www.azcentral.com/story/opinion/op-ed/2021/03/31/death-penalty-stands-way-true-justice-arizona-needs-abolish-executions/7054342002/
In addition to these writers’ concerns, Arizona’s death penalty system is marred by racial bias, geographical disparity, inadequate defense representation, an overbroad capital sentencing statute, prosecutors’ use of junk science, and other problems that render the system arbitrary, unfair, and unreliable. Ten innocent people have been exonerated from Arizona’s death row, making the prospect of a wrongful execution only too real. And despite the fact that its last execution went horribly wrong, Arizona continues to hide its execution procedures behind a shroud of secrecy.

For more information or to speak with an attorney, contact Laura Burstein, moc.bperiuqsnull@nietsruB.aruaL, (202) 669-3411, @LauraBurstein1

The Arizona Attorney General has filed a motion requesting a briefing schedule on its intent to seek a warrant for the execution of Frank Atwood. A statement from Mr. Atwood’s lawyer is below:

ATTORNEY STATEMENT AND CASE BACKGROUND RE: ATTORNEY GENERAL SEEKS EXECUTION DATE FOR FRANK ATWOOD DESPITE GRAVE DOUBTS ABOUT HIS CONVICTION

(April 6, 2021) Today, the Arizona Attorney General took steps to request execution dates from the Arizona Supreme Court, including for Frank Atwood. The State is attempting to begin the execution process for Mr. Atwood, despite open legal issues—including whether he is innocent—that need resolution to ensure any measure of reliability in this conviction and death sentence. Mr. Atwood was convicted and sentenced to death for the 1984 murder of eight-year-old Vicki Lynne Hoskinson. Eyewitnesses reported seeing the child alive hours after the only time Mr. Atwood could have crossed paths with her. Yet the authorities zeroed in on Mr. Atwood, carrying out an investigation riddled with flaws and lacking in concrete evidence connecting him to the victim’s disappearance, let alone her death. 

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

“Frank Atwood’s litigation since early 2020 has been frustrated by the COVID-19 pandemic. The State is now attempting to sweep aside the most profound issues that can arise in our legal system, including whether the convicted is actually guilty of the crime and whether death is a morally or legally tenable punishment in the individual’s case. Mr. Atwood needs the opportunity to present these issues before the Arizona Supreme Court entertains setting an execution date.”

– Joseph Perkovich, Attorney for Frank Atwood

–  April 6, 2021

BACKGROUND ON FRANK ATWOOD’S CASE

In September 1984, Frank Atwood and a fellow-traveler were passing through Tucson when an eight-year-old girl, Vicki Lynne Hoskinson, disappeared while riding her bicycle.

Hours later, long after Mr. Atwood supposedly committed this crime, multiple witnesses spotted the girl at the Tucson Mall. But a tip put Mr. Atwood in the same neighborhood that afternoon. As soon as police learned of his California convictions for child sex-related offenses, they dropped all other investigations, and he was soon arrested. He answered officers’ questions and consented to a search of his car. No evidence of the victim was found.

Seven months later, some of the girl’s bones were found off the side of Ina Road, an arterial avenue. Long after Mr. Atwood’s trial, it emerged that these remains had been buried before they appeared on the desert floor.

The prosecution’s evidence showed there was nowhere near enough time for Mr. Atwood to have abducted, killed, and buried the victim.

Evidence later emerged that the State manufactured its only physical evidence connecting Mr. Atwood to the child – supposed contact between his car and her bicycle — but the courts have yet to get to the truth of that matter. That evidence has never been subjected to modern scientific testing.

Mr. Atwood, the son of a Holocaust survivor, is now wheelchair-bound and suffering from severe spinal deterioration among other medical problems that would make the process of executing him excruciatingly painful.

For more information, contact Joseph Perkovich, gro.kcalbspillihpnull@hcivokrep.j.

###

Lezmond Mitchell is scheduled to be executed on August 26, 2020. This message is from his direct appeal counsel, Michael O’Connor.

Tomorrow, absent some extraordinary intervention, the United States will kill Lezmond Mitchell, the only Native American on the federal death row. The government will carry out that killing in our names. Most Americans will be unaware of Lezmond’s death. Of those who are aware, few will care. I am among those few.

Along with Celia Rumann, my wife and partner in all things, I represented Lezmond Mitchell in his direct appeal from his conviction and sentence of death. As a capital defense lawyer, I have no former clients – just clients that I used to represent. I have a continuing duty of loyalty to Lezmond imposed upon me by my profession. I have a continuing love for Lezmond imposed upon me by my humanity. I had not intended to write or say anything about Lezmond’s execution for selfish reasons. Loyalty and love, however, compel me to raise my voice in protest.

In the twenty years I spent actively representing clients on death row, I saw up close how structural racism infects and affects our society. We are all infected by the virus of racism, regardless of who we are or how we look. No case made that more clear to me than the capital trial of Lezmond Mitchell. Without getting too specific about the law, tribal governments are given the choice of “opting in” to the federal death penalty – or not. If they choose not to opt in, the death penalty cannot be sought for major crimes occurring between Native Americans on reservation land. The Navajo Nation rejected the death penalty based upon the great value Navajos place on all life. Despite this tribal decision, and against the wishes of the victims’ family and the Arizona U.S. Attorney, Attorney General John Ashcroft ordered that Lezmond be indicted and the death penalty sought in his case.

In a federal capital trial, a large number of jurors are summoned to appear. From those summoned, the court first, and then the lawyers with the court, winnow down and select the jury that will try the case. In Lezmond’s case, more than 400 Native Americans (out of a total of approximately 2000 prospective jurors) were summoned for possible service on his trial. More than 99% of those Native Americans summoned were excused or disqualified as unfit for jury service. No other racial group was dismissed at even half that rate. In a Navajo on Navajo crime committed on the Navajo reservation, jurors were excluded if they spoke only Navajo. Before being dismissed for “cause,” Navajo jurors were badgered by the judge with questions such as “You’re Navajo and he’s Navajo. Could you possibly be fair?” (Substitute any other group there and tell me how that sounds.) Navajo jurors were dismissed because they “were traditional” and “valued human life.” Surely, being traditional and valuing human life should not be grounds for exclusion from jury service in a U.S. courtroom. It is if you are Navajo.

In our pleadings to the court, we described the death penalty in the U.S. and its application to Lezmond Mitchell as “racist to the core.” Lezmond was prosecuted by white lawyers at the behest of a white Attorney General and a white President intent on extending the death penalty to Indian lands despite tribal sovereignty over that issue. They may or may not have acted out of racial animus. But the effects of structural racism were evident even in a disparate group of actors in Lezmond’s case. His three lawyers (one white, one black and one Hispanic) did not object to the overwhelming majority of Native jurors dismissed by the judge (herself, a Latina). Ultimately, only one Native juror sat on Lezmond’s trial.

The system that permitted Lezmond Mitchell to be sentenced to death was built by those who explicitly believed that their white racial identity made them superior to the indigenous tribes. This is no secret. It has been written into our laws and treaties. That system has been maintained and reinforced for more than two hundred years. All people raised in a society built upon these structural lies are affected deeply by those lies – regardless of who we are and how we view ourselves. We internalize these structures as truths and their evil manifestations no longer shock us enough to care. We can overcome these structural lies, but only if we are willing to acknowledge their existence and their malignant nature. Then we have to do all we can to change them.

In State v. Strong, the Arizona Supreme Court ordered that the Direct Appeal should be stayed and the case remanded for an evidentiary hearing on a claim of juror misconduct, where the juror lied in voir dire about her knowledge of the defendant’s prior conviction.  2020-05-26 Order Remanding for Hearing