Joseph Woods III, who is convicted of killing his girlfriend and her father in 1989, wants his execution delayed until the state says where it obtained drugs that will be used to kill him or after the investigation of a botched execution in Oklahoma is complete, according to a legal brief filed with the Arizona Supreme Court on May 12.
The Arizona Department of Corrections is relying on a law that protects the identity of “executioners and other persons who participate” in executions to keep the source of the drugs to be used in Woods’ execution a secret, even though the state lost a legal challenge in October on similar grounds.
Richard Dieter, executive director of the Death Penalty Information Center, said states for the most part have been losing the transparency issue at the trial-court level, but winning at the appellate level. So executions have been going forward. There have been 20 so far in five states this year.
Three members of the liberal wing of the U.S. Supreme Court, Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, let it be known Feb. 25 they wanted to take up the issue of transparency in the appeal of Missouri inmate Michael Taylor, who was executed the next day. The court declined to hear the case.
The three justices took the rare approach of commenting on their position in the order denying certiorari. They pointed to a lower-court ruling in which Judge Kermit Bye of the 8th U.S. Circuit Court of Appeals wrote that Missouri’s secrecy could mean the source of the drug in Taylor’s execution could be “nothing more than a high school chemistry class.”
“That was a little bit of a clue this is a high-level debate,” Dieter said.
Woods’ attorney, Julie Hall, argued in her brief with the Arizona Supreme Court her client needs the information on the drugs so he can legally challenge the execution. The court is going to consider whether to issue a death warrant for him on May 28. If the court grants the warrant, then the earliest the execution could be held is July 1.
Hall called the use of the drugs an experiment that has had problems in other states.
What makes Woods’ case unique is the drugs to be used, Midazolam and Hydromorphone, a sedative and pain killer respectively, have been used only once to execute someone and the results were questionable.
Ohio used the drug combination Jan. 16 to execute Dennis McGuire. Witnesses said the prisoner’s death was prolonged and he seemed to struggle in his restraints and gasp for air.
Arizona has indicated it will double the dose given the Ohio inmate.
Midazolam was used in a three-drug combination in the April 29 execution of Clayton Lockett in Oklahoma, which went terribly wrong.
Witnesses claim Lockett tried to sit up, writhed and convulsed on the gurney while he tried to speak. Executions are supposed to be carried out humanely and prisoners who were injected with drugs that are no longer available typically seemed to die peacefully.
“To date, three states have experimented with lethal-injection protocols using Midazolam. Each state used a different experimental protocol, as each had reports of difficulties and abnormalities,” Hall wrote. “Ohio and Oklahoma were the worst.”
In October 2013, the state tried to keep its source of Pentobarbital a secret. It had become one of the drugs of choice for executions around the country, but fell into short supply.
Judge Roslyn Silver of U.S. District Court in Phoenix said condemned prisoners have a First Amendment right to know what the state is going to use to kill them. She ordered the state to turn over information on the drug.
The state has until May 21 to respond to Woods’ brief.