Lawyers for an inmate set to be executed this week want the Arizona Supreme Court to withdraw his death warrant because the justices toured death row and met with prison officials.
Court papers filed Sunday also ask the entire five-member high court to step away from the case and appoint a panel of judges to hear Donald Beaty’s appeals.
Beaty’s lawyers wrote in their court filing that Chief Justice Rebecca White Berch and Justice Andrew Hurwitz met with Arizona Department of Corrections Director Charles Ryan last month to discuss execution scheduling and protocols. Four justices toured two prisons and the death chamber May 10.
Defense lawyers say they were not invited and found out about the visits from Beaty. They argue the visits and discussions were improper because the justices were considering their client’s case at the time, and defense attorneys were not allowed to participate. Lawyers for the state were notified of the meetings.
The court filings call the meetings “ex parte communications” that are barred under court rules because judges are expected to rule only on information in the formal record. Defense attorneys argue the justices should recuse themselves from the case to avoid an appearance of impropriety.
Supreme Court spokeswoman Jennifer Liewer declined to comment, saying the high court does not discuss pending matters.
The state’s top death penalty prosecutor, Kent Cattani, said in an email Sunday that there was no improper communication between the judges and Ryan because Ryan is not a party to the case. He said the discussions between Ryan and Berch were to go over scheduling and were not improper communications. Cattani said Ryan requested that executions be scheduled for midweek to minimize overtime.
“Accordingly, Beaty’s allegations of ex-parte contacts are baseless,” he wrote.
Beaty, now 56, was convicted in the 1984 rape and murder of 13-year-old Christy Ann Fornoff, a case that riveted the Phoenix area.
The girl was killed while she was collecting on her newspaper route at an apartment complex where Beaty lived and worked.
Late last week, federal public defenders filed a lawsuit accusing the Arizona Corrections Department of violating the state public records law by withholding requested records on the acquisition of execution drugs.
They argued in a court filing Thursday that they need the records “to pursue appropriate remedies” to the department’s “potentially unlawful behavior. The public defenders asked for quick consideration of the lawsuit but a judge denied that motion Friday without comment.
Beaty’s attorneys then filed a new appeal Friday, asking the U.S. Supreme Court to block his execution.
Daniel Barr, a lawyer representing the public defenders office, said it wasn’t immediately clear what would happen next in the records lawsuit.
The office’s suit asked that the department be ordered to produce the requested records, which include communications with federal agencies and a customs broker. The defender’s office, which represents death row inmates, contends Arizona may have illegally imported at least one execution drug.
State officials previously said they’ve acted legally in obtaining and using execution drugs.
Courts have permitted two Arizona executions since October despite defense lawyers’ arguments that the state’s supply of execution drugs may not work properly.
The state Supreme Court on Thursday refused to block Beaty’s scheduled execution as it denied his appeal over claims of ineffective representation in his sentencing and in later proceedings.
Beaty’s attorneys renewed that argument Friday in the appeal filed with the U.S. Supreme Court. It claimed that Beaty was denied effective representation at key points in his case. Beaty already has an appeal pending with the federal high court that challenges the death penalty on religious grounds.
The appeal argued Beaty had the constitutional right to effective representation in post-conviction proceedings in trial court. They argued Beaty’s attorneys did not present evidence during his sentencing hearing that he suffers from a brain impairment and was abused as a child.
A Corrections Department spokesman did not immediately return a call seeking comment Sunday evening.