The Arizona Supreme Court refused Monday to block an execution scheduled for Tuesday, turning away a constitutional challenge that included a claim by defense lawyers that more than one sedative was improperly used in a previous execution.
The state high court, without comment, declined to consider the challenge of the state’s lethal-injection law on behalf of four death-row inmates. It also denied an accompanying motion asking for postponement of the scheduled execution Tuesday of Thomas Paul West, one of the inmates.
The 9th U.S. Circuit Court of Appeals also dismissed an appeal filed on behalf of West. One of his lawyers said West still had an appeal pending with the U.S. Supreme Court.
Late Sunday, a U.S. District Court judge also refused to block the execution of West for the 1987 fatal beating of Donald Bortle during a robbery at Bortle’s home in the Tucson area.
The legal challenge by the four inmates contended the injection law is unconstitutional because the Legislature gave unfettered discretion to the Corrections Department on how to conduct executions.
That violates the constitutional doctrine of separation of branches of government by delegating policy-making decisions, the challenge contended.
The state Supreme Court’s ruling came three days after Maricopa County Superior Court judge rejected the separations-of-powers argument. The judge ruled that the Legislature may let state agencies decide how to implement laws.
In a last-minute addition to the challenge, defense lawyers argued that their case was bolstered by an autopsy report that they said indicated two different sedatives were used in the March execution of Eric John King.
That violated the state’s execution protocol calling for only one sedative to be used as part of a three-drug mix, and may have indicated that state officials were “experimenting,” the filing said.
Kent Cattani, the state’s top death-penalty prosecutor, responded that only one sedative was used. He acknowledged that the autopsy lab found two sedatives, but he said that was because one sedative changes into the other once in the body.
“Given the fact that sodium thiopental is known to metabolize into pentobarbital, it is neither surprising nor unusual that the autopsy report following Eric King’s execution showed the presence” of both, Cattani wrote in a draft response to the defense filing.
The response included an excerpt from a 1955 scientific paper that discussed how thiopental changes into pentobarbital.
Cattani provided the draft response to The Associated Press. He had not yet filed it before the Supreme Court ruled.
Lake Forest, Ill.-based Hospira Inc., the company that was the sole U.S. maker of sodium thiopental, declined to comment on whether the company’s former product metabolizes into pentobarbital.
Indianapolis-based AIT Laboratories, the company that performed the toxicology tests for King’s autopsy, declined to comment. Spokeswoman Raquel Bahamonde said that’s because it relates to a court case.
Sodium thiopental is in short supply, and Arizona has acknowledged importing its last supply of that drug from a wholesaler in Great Britain.
Arizona is among states switching to pentobarbital for use in executions, either by itself or as part of three-drug mixes.
Arizona has said pentobarbital was first used by the state in the May 25 execution of Donald Edward Beaty.
The state said it made the switch one day before Beaty’s execution because federal officials said the state hadn’t filed a form needed to import sodium thiopental.
West has been on death row since 1988,
If he’s executed Tuesday, West will become the 91st inmate to be put to death in Arizona. The most recent execution was that of Richard Lynn Bible on June 30 for the molestation and murder of a 9-year-old girl in Flagstaff.