An Arizona death row prisoner, who would be among the state’s first executions in almost seven years, has filed documents arguing the lethal injection drug to be used would expire sooner than prosecutors maintain and that makes it impossible to carry out his execution.
In a filing Wednesday, attorneys for Frank Atwood asked the Arizona Supreme Court to order a lower court to hold a hearing over the state’s claim that the pentobarbital to be used in their client’s execution would expire 90 days after the chemical powder is compounded into an injectable fluid. His lawyers contend the drug is unusable 45 days after it’s compounded.
Atwood’s attorneys said there isn’t enough time within the 45-day shelf life to request an execution warrant, compound the drug, test it to verify it will be effective in killing him and then carry out the execution.
“The patently incorrect claim that the drugs will be good for 90 days is serving to distract from the Attorney General’s real problem with his choice of pentobarbital for Arizona’s return to executions,” Joseph Perkovich, one of Atwood’s lawyers, said in a statement.
Attorney General Mark Brnovich’s office has said it’s asking the state’s highest court to set a litigation schedule before the warrant is filed so that the briefings don’t extend the execution date beyond the drug’s 90-day shelf life. Prosecutors said the drug must be compounded shortly after they make the execution warrant request to give enough time to conduct a mandatory quantitative test of the drug.
Under the sequence of filings laid out by the attorney general’s office, Atwood’s attorneys would have 10 days to respond after prosecutors file a request for his execution warrant, and prosecutors would then get another five days to file a reply. An execution date would be set for 35 days after the Supreme Court issues a death warrant, prosecutors said.
Prosecutors said in court filings that they weren’t trying to abandon procedure or create new rule, but rather were trying to ensure the litigation process was orderly.
“General Brnovich is committed to upholding the rule of law and opposing erroneous legal arguments and misguided antics to delay the administration of justice,” Katie Conner, a spokeswoman for the attorney general’s office, said in a statement. “We must always stand up for the victims, their families and our communities.”
Atwood and Clarence Dixon are the first death row prisoners in Arizona to be eyed for execution since the 2014 death of Joseph Wood, who was given 15 doses of a two-drug combination over two hours. His attorney said the execution was botched.
States including Arizona have struggled to buy execution drugs in recent years after U.S. and European pharmaceutical companies began blocking the use of their products in lethal injections. Arizona corrections officials revealed earlier this year that they had finally obtained a lethal injection drug and were ready to resume executions.
Arizona has 115 inmates on death row.
Earlier this month, Brnovich’s office told the state’s highest court that it intended on seeking execution warrants for Dixon and Atwood soon.
Dixon was convicted and sentenced to death for the 1978 killing of Deana Bowdoin, a 21-year-old Arizona State University student.
Atwood was convicted in Pima County and sentenced to death for killing 8-year-old Vicki Lynn Hoskinson in 1984. Authorities say Atwood kidnapped the girl, whose body was found in the desert northwest of Tucson.
Attorneys for Atwood and Dixon had previously asked the state Supreme Court to hold off on scheduling the litigation over their upcoming death warrants, arguing the pandemic had made it hard for them to prepare defenses for their clients due to a ban on visits inside state prisons over the last year.
Brnovich’s office said Atwood’s attorneys could have visited with their clients by phone or video link for the past year and noted that corrections officials have recently allowed limited in-person visits between death row prisoners and their lawyers.