With Arizona’s rush to resume executions come unanswered questions on the sanity and innocence of the first two of 21 condemned prisoners and the motivations of Attorney General Mark Brnovich.     

Brnovich notified the Arizona Supreme Court this month that the state intends to seek death warrants for Clarence Dixon and Frank Atwood and made a request for a “firm briefing schedule,” saying it would ensure that the Department of Corrections, Rehabilitation and Reentry is able to comply with lethal drug testing and disclosure obligations. 

Robert Dunham, executive director of the Death Penalty Information Center, said Brnovich’s request for a briefing schedule from the court was unusual and looks to set a short timeline and hamstring the court from reviewing legal issues. 

Dunham compared Brnovich’s actions to those of former U.S. Attorney General William Barr, who pushed through a string of 13 executions toward the end of his time in office. He issued death warrants that set executions so close in time that the courts couldn’t meaningfully review lingering issues in the cases while falsely claiming no legal issues remained, Dunham said.  

Brnovich’s move “goes against everything else we’re seeing with capital punishment in the United States” during the pandemic, said Dunham, whose organization provides information and analysis on death penalty issues and does not take a position for or against capital punishment. 

“All of that suggests that what the attorney general is interested in is expediting executions for his political resume rather than ensuring that the process be carried out in a fair and principled manner,” Dunham said. 

Brnovich’s term in office ends in January 2023 and the speculation has been he’s eying either the Governor’s Office or U.S. Senate. He did not immediately agree to an interview for this story, but he has used Twitter to defend his actions, saying he’ll never apologize for standing up for the victims of violent crime and never stop fighting for the families of victims.  

“I won’t be swayed by activists and journalists who don’t care about the victims,” Brnovich wrote April 17, in response to a New York Times commentary criticizing him and asserting that lethal injection is cruel and violates the U.S. Constitution.  

There is no doubt Arizona has struck out on its own in pursuit of resuming executions, with the recent push coming during the longest hiatus between executions carried out by states in the past 40 years — nearly 300 days. In the United States, six executions are scheduled for the rest of 2021. Five are in Texas, and one is in Pennsylvania where there has been a moratorium on executions since 2015 and the governor is expected to grant a reprieve. 

Arizona itself has had a nearly seven-year execution hiatus after the execution of Joseph Wood in 2014. Wood snorted and gasped for air for nearly two hours as he was given 15 doses of the sedative Midazolam and hydromorphone, a painkiller. 

Atwood’s and Dixon’s attorneys are now trying to slow things down. 

Atwood’s attorneys claim 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. The lawyers say there are pending legal issues that haven’t been resolved, involving sentencing and possible innocence, that were cut off because of the pandemic.  

They also say that the Attorney General’s Office argued Atwood could bring innocence claims at a later date “while simultaneously preparing, in secret, to moot future investigation by procuring the drugs necessary to resume executions and prioritizing his ahead of all but one other.” 

“Instead, Mr. Atwood was put to the front of the line that has over 20 people in it, despite having these very grave issues that have not gotten the process,” said Joseph Perkovich, an attorney for Atwood, said. 

Atwood, a previously convicted pedophile, was convinced of the 1984 slaying of Vicky Lynn Hoskinson. She disappeared while riding her pink bicycle on her way to mail a letter for her mother. 

Brnovich said in his own filing that the state Supreme Court “need only determine whether Atwood’s first postconviction proceeding and habeas appellate review have concluded,” and if those proceedings have been completed, then state law and procedural rule “leave this Court no discretion to deny the warrant.” 

Atwood’s attorneys disagreed, stating that the court has discretion to deny a warrant, and that the way the attorney general interpreted the warrant statute would violate separation of powers by reducing the judiciary to “a rubber stamp acting at the direction of the executive department.” 

“Indeed, if this Court’s role was merely to mechanically approve the discretionary actions of the Attorney General, it would be more sensible to vest the warrant power in the executive, as is the case in other capital jurisdictions,” the attorneys wrote. 

Dixon’s attorneys are asking for a delay in starting the briefing schedule Brnovich requested, citing the

pandemic and the corrections department’s suspension of legal and expert visits. Dixon’s legal team hasn’t been able to visit him since March 2020, and that has kept him from preparing for or accessing clemency proceedings, according to the filing.  

The attorneys pointed to two cases in Tennessee and Texas where executions were postponed on public safety grounds, adding that because pentobarbital’s 90-day shelf life doesn’t begin until it is compounded, the state wouldn’t be disadvantaged by the delay. 

“As his lawyers, we must have an opportunity to meet with him in person to discuss the difficult and sensitive issues surrounding any potential execution and to gather essential information for a clemency petition,” Dixon’s attorney, Dale Baich, said in a written statement. “The requested pause would ensure those meetings can take place.” 

Baich said Dixon has had severe mental illnesses, including schizophrenia, for decades and is now suffering from several physical ailments, including blindness. He said it would be unconscionable for the state to execute him. 

If Dixon is schizophrenic, the Constitution prohibits his execution, according to Jon Gould, foundation professor and director of Arizona State University’s School of Criminology and Criminal Justice. 

“That’s capital punishment 101,” Gould said.