death penalty | Arizona Capitol Times

AG renews plea to governor to begin executions in Arizona again

Attorney General Mark Brnovich is once again pressuring Gov. Doug Ducey to pave the way for executions in Arizona.

In a letter this week, Brnovich told the governor that it is clear that the federal government is able to get its hands on pentobarbital. What that means is that the problem the state has had in the past in getting the drugs — and doing so legally — from a willing supplier no longer exists.

And Brnovich pointed out there are now 20 individuals on “death row” who have exhausted their appeals.

But it is up to the Department of Corrections, Rehabilitation and Reentry to actually order the drugs. And that agency is under the control of Ducey.

“It has been six years since Arizona carried out an execution,” Brnovich told the governor. In fact, he said, some of the crimes for which people have been convicted and are awaiting execution date back to the 1970s and 1980, specifically citing the 1984 slaying of 7-year-old Vicki Lynne Hoskinson who disappeared while riding her pink bicycle at Tucson’s De Anza Park. Frank Jarvis Atwood, who had previously been released on parole from California, eventually was arrested and convicted.

“The time has come for Atwood and others to be held accountable,” Brnovich wrote.

Brnovich made a similar plea to Ducey a year ago when U.S. Attorney General William Barr announced that the federal government intended to resume executions after nearly two decades.

There was no response from Ducey at that point.

The federal government did finally carry out its first execution on Tuesday, using lethal injection on a man convicted of murdering an Arkansas family in the 1990s.

On Wednesday, there was no specific response form Ducey about obtaining new execution drugs or asking for Brnovich’s help in getting them. Instead, gubernatorial press aide Patrick Ptak would say only that the governor has received Brnovich’s letter and “will continue working with the Department of Corrections to ensure justice is served and that we follow the law.”

Part of the new push from Brnovich on Ducey is because the state has either won or settled lawsuits over the death penalty and the drugs that can be used.

Last year a federal appeals court concluded that Arizonans have no legal right to know where the state obtains drugs to execute inmates. That ruling, Brnovich said, makes it more likely that the state will find a supplier, many of which have been unwilling to sell their drugs for executions because they fear “harassment or retaliation by death penalty opponents.”

And just three weeks ago the state settled other claims, agreeing not to limit the ability of witnesses to hear the sounds of the execution.

Arizona has tried to get drugs used in executions in the past.

The state in 2015 ordered 1,000 vials of sodium thiopental, a muscle relaxant used in the execution process, from a supplier in India. That came after a domestic manufacturer refused to sell it for executions.

The decision to order the drugs came despite warnings by the FDA that buying the drug from India-based Harris Pharma would be illegal. That followed a 2012 decision by a federal judge, ruling in a lawsuit brought by inmates, requiring the federal agency to block importation of the drug as unapproved.

Customs and Border Protection seized the drugs at Sky Harbor Airport. And in 2017 the Food and Drug Administration refused to release them.

Arizona has not carried out an execution since it put Joseph Wood Jr. to death in 2014 in a procedure that took nearly two hours. He had been convicted of the 1989 death in Tucson of his girlfriend and her father.

Brnovich said it’s time to restart the process. But he needs Ducey’s cooperation.

“I again ask for your assistance in procuring the drugs necessary to resume executions in Arizona,” he wrote to the governor. “It is imperative to fulfill our obligation to uphold the rule of law.”

AG starts execution process for 2 inmates

Arizona is finally ready to carry out its first two executions in seven years.

Attorney General Mark Brnovich filed the necessary paperwork Tuesday with the Arizona Supreme Court to have the state put to death Frank Atwood Jr. and Clarence Dixon.

Aide Ryan Anderson said there are still a few steps the court has to take. And then there’s the question of actually setting a date.

But Anderson said there is no reason why both cannot be executed before the end of the year.

There is one thing that has to be decided: the manner of death.

Arizona now uses lethal chemicals to execute inmates after it took 11 minutes for Donald Eugene Harding to die in 1992 by asphyxiation. Voters agreed later that year to replace the gas chamber with lethal injection.

But that law allows any inmate whose crime was committed before Nov. 23, 1992 to choose. In fact, Walter LeGrand was executed in the gas chamber in 1999 at his request and is believed to be the last person in this country put to death by that method.

A representative from the state Department of Corrections, Rehabilitation and Reentry said Tuesday that the gas chamber is “fully operational.”

Brnovich on Tuesday asked the Arizona Supreme Court, which has the last word, to set up a briefing schedule to review the request for death warrants to be issued. But in his legal filings, the attorney general said there’s really nothing left to discuss.

He said the justices need to determine if all of the appeals and post-conviction proceedings have been concluded.

“If those proceedings have terminated, as the state will show, the relevant statute and procedural rule, respectfully, leave this court no discretion to deny the warrant,” Brnovich told the justices.

And there are other complicating factors if either Atwood or Dixon choose lethal injection.

One is that the pentobarbital, the barbiturate the state plans to use, has to be compounded. And once that happens it has a shelf-life of 90 days. So that, Brnovich said, requires the dates to all line up so that the executions, once set, can be completed in that time period.

If these two go forward, it would break the logjam.

Brnovich said there are 115 inmates on Arizona’s “death row,” with about 20 of them, including Atwood and Dixon, having exhausted their appeals. The attorney general, in a prepared statement, made it clear that he considers the renewal of executions to be proper.

“Capital punishment is the law in Arizona and the appropriate response to those who commit the most shocking and vile murders,” he said.

In fact, in Arizona, the death penalty is not an option simply because someone murdered another person. Instead, it takes a jury concluding there were sufficient “aggravating circumstances” like whether the crime was done for money, whether the person was out on parole, and whether it was committed “in an especially heinous, cruel or depraved manner.”

“This is about the administration of justice and ensuring the last word still belongs to the innocent victims who can no longer speak for themselves,” Brnovich said.

Atwood, a previously convicted pedophile, was convicted for the 1984 death of 8-year-old Vicki Lynne Hoskinson. She disappeared in 1984 while riding her pink bicycle at on her way to mail a letter for her mother.

Authorities eventually tracked Atwood to Texas where he was arrested on charges of kidnapping, with murder charges added after Vicki’s skull and some bones were found in the desert northwest of Tucson the following year.

At trial, witnesses for the state testified that pink paint on the front bumper of Atwood’s car had come “from the victim’s bike or from another source exactly like the bike” and that Vicki’s bicycle had nickel particles on it that were consistent with metal from the bumper.

In seeking to overturn his conviction, Atwood argued that his trial counsel was ineffective. But Judge Sandra Ikuta, writing for the 9th Circuit Court of Appeals, said there were legitimate reasons for decisions made by attorney Stanton Bloom in how to conduct the defense.

And the judges said, in essence, Atwood’s theory that police and prosecutors planted evidence was so far-fetched as to have no credibility.

Dixon was found guilty of murdering Deana Bowdoin, an Arizona State University student, in 1978. She was found murdered in her bed with a macrame belt around her neck and blood on her chest.

While police found DNA they were unable to match it to anyone.

The break came in 2001 when Tempe police matched it to Dixon who by that time was serving a life sentence in prison for a 1986 rape. Dixon had lived across the street from Bowdoin at the time of the murder.

Dale Baich, a federal defender who represented Dixon in post-conviction proceedings, said corrections officials have yet to respond to questions about the process, including Covid safety measures and whether spiritual advisers will be allowed in the execution chamber.

He called the decision to execute him”unconscionable,” and not only because of Dixon’s mental condition. Baich cited statistics he said show that the death penalty is disproportionately imposed on poor people and people of color and is more likely to be imposed in Maricopa County.

It has taken years to determine when Arizona would again start executing inmates.

It started with questions of whether the state could — or would — get the necessary drugs for executions. And it took a court ruling to conclude that the public has no right to know where the state obtains the chemicals.

The state then tried to obtain sodium thiopental, a muscle relaxant. When the manufacturer would not sell the drug to Arizona to put someone to death, the state then ordered them from a suppliers in India despite warnings by the federal Food and Drug Administration that such a move was illegal.

The drugs were seized at Sky Harbor Airport and never released.

In the interim, the federal government managed to get its hands on pentobarbital and last year carried out its first executions in years. That led Brnovich to pressure Gov. Doug Ducey to either have his corrections department get the drugs or at least ask for the attorney general’s help in getting them.

It has taken until now for Arizona to get the drugs it needs.

All along, Hoskinson’s mother, Debbie Carlson, has been pushing Ducey to actively pursue the drugs to ensure that Atwood is put to death.

“I would like to thank Attorney General Mark Brnovich for standing with us in our quest for justice,” she wrote in a 2019 opinion piece in The Arizona Republic. “

It is now my hope that Gov. Ducey will hear our plea and direct the Department of Corrections to procure the drugs to execute the perpetrator.”

Arizona finds pharmacist to prepare lethal injections

Arizona has found a compounding pharmacist to prepare the drug pentobarbital for lethal injections, officials said October 27, moving the state closer to resuming executions after a six-year hiatus.

Finding a pharmacist to prepare lethal injections was one of the barriers the state faced since it put executions on hold after a botched execution in 2014. In August, Attorney General Mark Brnovich said the state had located a supplier of the drug.

As Brnovich revealed that his office had found a pharmacist, Corrections Director David Shinn said his agency had already started the process of obtaining the drug and had found a compounding pharmacist.

In a letter October 27 to Gov. Doug Ducey, Brnovich pointed out 20 of Arizona’s 116 death row inmates have exhausted all appeals of their sentences.

“Many of those inmates committed heinous murders decades ago,” the attorney general wrote. “We must ensure that justice is served for the victims, their families and our communities.”

Dale Baich, chief of the unit in the Federal Public Defender’s Office in Arizona that represents inmates in death penalty appeals, said he’s concerned about whether the compounding pharmacist is qualified to provide such a drug. “There are questions that still need to be considered,” Baich said.

Executions in Arizona were put on hold after the death of Joseph Wood, who was given 15 doses of a two-drug combination over two hours. His attorney had said the execution was botched.

Wood was executed for the 1989 shooting deaths of his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz, at an automotive shop in Tucson.

In recent years, Arizona and other states have struggled to buy execution drugs after U.S. and European pharmaceutical companies began blocking the use of their products in lethal injections.

Five years ago, the state tried to import sodium thiopental, which had been used to carry out executions but was no longer manufactured by companies approved by the Food and Drug Administration. The state never received the shipment because federal agents stopped it at Phoenix International Airport and the state lost an administrative challenge to the seizure.

Arizona inmate loses bid to avoid execution on Wednesday

PHOENIX (AP) — A federal judge on Tuesday rejected a request to postpone the planned execution of an Arizona prisoner in what would be the state’s first use of the death penalty in nearly eight years.
The judge’s decision keeps on track plans to execute 66-year-old Clarence Dixon on Wednesday morning at the state prison in Florence for his murder conviction in the 1978 killing of 21-year-old Arizona State University student Deana Bowdoin.
Dixon appealed the judge’s ruling at the 9th Circuit Court of Appeals, where three judges heard arguments on Tuesday afternoon but didn’t say when they planned to issue their decision.
Dixon’s remaining legal efforts center on his claim that he is mentally unfit to be executed and that his psychological problems prevent him from rationally understanding why the state wants to end his life.
The Arizona Supreme Court on Monday declined to review a state judge’s decision that rejected Dixon’s arguments, leading his attorneys to introduce similar claims in federal court.
In rejecting Dixon’s arguments, U.S. District Judge Diane Humetewa concluded the state judge had applied the correct legal standards in assessing Dixon’s mental fitness.
Even though Dixon has been diagnosed with schizophrenia, Humetewa wrote that the state judge had reasonably determined that Dixon did not lack a rational understanding of the reasons for putting him to death.
Dixon’s lawyers have said their client erroneously believes he will be executed because police at Northern Arizona University wrongfully arrested him in a previous case — a 1985 attack on a 21-year-old student. His attorneys concede he was in fact lawfully arrested then by Flagstaff police.
Dixon was sentenced to life sentences in that case for sexual assault and other convictions. DNA samples taken while he was in prison later linked him to Bowdoin’s killing, which at that point had been unsolved.
Prosecutors said there was nothing about Dixon’s beliefs that prevent him from understanding the reason for the execution and pointed to court filings that Dixon himself made over the years.
In asking the federal appeals court for a stay of execution, Dixon’s lawyers argued the state court judge who considered their client’s mental fitness ignored evidence showing that Dixon experiences delusions from his schizophrenia, preventing him from understanding why he is being executed.
Prosecutors argued Dixon’s claim lacked merit. “The state court decision was reasonable based on the facts before it,” Jeffrey Sparks, a top attorney for the Arizona Attorney General’s Office, told the appeals court.
Defense lawyers have said Dixon has been diagnosed with paranoid schizophrenia on multiple occasions, has regularly experienced hallucinations over the past 30 years and was found “not guilty by reason of insanity” in a 1977 assault case in which the verdict was delivered by then-Maricopa County Superior Court Judge Sandra Day O’Connor, nearly four years before her appointment to the U.S. Supreme Court. Bowdoin was killed two days after the verdict, according to court records.
Authorities have said Bowdoin, who was found dead in her apartment, had been raped, stabbed and strangled. Dixon had been charged with raping Bowdoin, but the charge was later dropped on statute-of-limitation grounds. He was convicted, though, in her death.
Dixon, who is blind and in declining health, is set to be the first person put to death in Arizona in nearly eight years, mainly because of problems with the state’s most recent execution nearly eight years ago.
The state had to give Joseph Wood 15 doses of a two-drug combination over two hours before he died in July 2014 in an execution that his lawyers said was botched. The state now is using just one drug.

Arizona prisoner to die by lethal injection, not gas chamber

An Arizona prisoner who is scheduled to be executed in three weeks for two 1980 killings will be put to death by lethal injection, making him the third condemned person to decline lethal gas since the state refurbished the chamber where it carried out the last U.S. execution by gas more than 20 years ago.

Attorneys for Murray Hooper said Wednesday that he declined to pick a method of execution when corrections officials asked him if he wanted to die by lethal injection or the gas chamber. Lethal injection is Arizona’s default execution method when condemned prisoners refuse to make a selection.

death row, Murray Hooper, William "Pat" Redmond, Helen Phelps, execution, DNA testing, Superior Court Judge Jennifer Green, DNA, killings, Arizona Attorney General's Office, fingerprint systems — Murray Hooper, pictured here, is scheduled to be executed on Nov. 16 for his convictions in the killings of Pat Redmond and Helen Phelps in Phoenix in 1980.

His lawyers declined to comment on the method by which he would be executed on Nov. 16 for the killings of William ‘Pat” Redmond and Redmond’s mother-in-law, Helen Phelps.

The last lethal gas execution in the United States was carried out in 1999 in Arizona. The state’s gas chamber at the prison in Florence, southeast of Phoenix, was dormant as Arizona started using lethal injection.

Corrections officials have declined to say why they refurbished the gas chamber and purchased materials to make hydrogen cyanide gas, which was used in some past U.S. executions and at Nazi concentration camps during World War II.

Death penalty experts say the United States switched to lethal injection due to the horrific nature of gas executions, which they say are slow and leave the condemned gasping for breath and thrashing in their restraints while appearing to be in excruciating pain.

Arizona, California, Missouri and Wyoming are the only states with old gas execution laws still on the books. Arizona is the only one that still has a working gas chamber.

Deborah Denno, a Fordham Law School professor who has studied executions for more han t25 years, said it’s not unusual for death row prisoners to refuse to complete method-of-execution forms, as condemned people who are depressed and resigned aren’t likely to be focused on how they will be put to death.

“This is not foremost in their minds in the way it may seem to seem to someone not in their position,” Denno said.

Authorities say Redmond and Phelps were killed after Hooper and two other men forced their way into Redmond’s home on Dec. 31, 1980. Redmond’s wife, Marilyn, was shot in the head but survived and testified against Hooper.

Lawyers for Hooper say he is innocent and was in Chicago at the time of the killings.

Two other men, William Bracy and Edward McCall, were convicted in the killings but died before their executions could be carried out.

Authorities say Robert Cruz, who was alleged to have had ties to organized crime, hired Hooper, Bracy and McCall to kill Pat Redmond, who co-owned a printing business. They said Cruz wanted to take over the business and was unhappy that Redmond had rejected his offers to enter several printing contracts with Las Vegas hotels, according to court records. In 1995, Cruz was acquitted of murder charges in both deaths.

Hooper would be the third Arizona prisoner put to death since the state resumed carrying out executions in May following a nearly eight-year hiatus attributed to the difficulty of obtaining lethal injection drugs and criticism that a 2014 execution was botched.

In recent years, Oklahoma, Mississippi and Alabama have passed laws allowing executions with nitrogen gas, at least in some circumstances, though experts say it has never been done and no state has established a protocol that would allow it, according to the Death Penalty Information Center.

The last prisoner to be executed in a U.S. gas chamber was Walter LaGrand, the second of two German brothers sentenced to death for killing a bank manager in 1982 in southern Arizona. It took LaGrand 18 minutes to die.

Arizona’s gas chamber refurbishment was condemned internationally, including coverage in Israel and Germany drawing parallels to Holocaust atrocities.

There are 111 prisoners on Arizona’s death row and 22 have exhausted their appeals, according to the state attorney general’s office.

Arizona Supreme Court returns convicted murderer to death row

The Arizona Supreme Court reinstated the death penalty today for convicted murderer Darrel Pandeli after finding a Maricopa County Superior Court judge overstepped his bounds when reviewing the case.

According to the court’s unanimous ruling, Judge Robert Gottsfield repeatedly second-guessed defense counsel’s strategy when he should have offered deference. The high court found Gottsfield “did not explain how Pandeli suffered prejudice from any of the acts or omissions” he believed to be an ineffective defense.

“Simply disagreeing with strategy decisions cannot support determination that representation was inadequate,” Justice Clint Bolick wrote in the court’s opinion.

Pandeli was sentenced to death by a judge in 1998 for the murder of Holly Iler.

The state appealed Gottsfield’s 2015 decision to throw out the death penalty.

The state Supreme Court categorically disagreed with Gottsfield finding that 15 claims of ineffective assistance of counsel and a due process violation were grounds enough for throwing out the death sentence.

The justices noted many of Gottsfield’s findings centered around the fact that Pandeli’s trial counsel, Gary Shriver and his co-counsel Dawn Sinclair, made a “spur-of-the-moment decision” not to cross-examine the state’s key witness, psychologist Dr. Brad Bayless. Gottsfield determined Bayless “frequently doesn’t have any scientific basis for his opinion” that Pandeli was psychotic and “that there’s no saving him.”

Shriver and Sinclair testified to that decision’s “wrongheadedness,” which constituted ineffective assistance in Gottsfield’s view, but the hight court today determined their decision was informed by more than a lack of preparation.

Shriver testified that he knew Bayless to be adversarial and “hard to control” on the stand. Ultimately, Shriver decided simply cross-examining Bayless “doesn’t mean that you are going to successfully examine him…”

The Supreme Court determined “no finding was made that the decision lacked ‘some reasoned basis.’”

Pandeli had also asserted ineffective assistance of counsel claims based on various alleged failures to lodge objections, including references to serial killers and presentation of his violent sexual fantasies; the alleged failure to effectively cross-examine the defendant’s brother Chris Pandeli, who was believed to have “some sort of damaging information” that may come out during lengthy questioning; and Sinclair’s in-experience as a trial attorney, which the state Supreme Court found to be irrelevant given Shriver’s extensive experience.

Likewise, the court’s opinion went on, Gottsfield was wrong to uphold Pandeli’s due process claim because he “implied the jury must be given only objectively accurate expert testimony.” Gottsfield determined “it is clear” that Pandeli suffered from a “serious mental illness” even though Bayless testified he had exaggerated during cognitive tests and simply had an antisocial personality disorder.

“The [post-conviction relief] court did not find that Dr. Bayless relied on any inaccurate facts to arrive at his opinions; the court simply disagreed with those opinions,” Bolick wrote. “However, a defendant’s due process rights are not violated by a good-faith ‘battle of the experts.’”

Iler was the granddaughter of Donald W. Douglas, Sr., whose company Douglas Aircraft went on to become McDonnell Douglas. She turned to prostitution to support a drug habit, according to The Arizona Republic, and Pandeli hired her for sex. The arrangement turned violent when Pandeli was unable to perform.

Iler’s beaten body was found naked in a Phoenix alley, her throat slashed and breasts mutilated.

Pandeli was also convicted for the 1992 murder and mutilation of another prostitute, Teresa Humphreys. For that, he was sentenced to 20 years in prison.

Arizona’s next criminal justice reform – end death penalty

The most recent legislative session in Arizona has seen progress on criminal justice reform, but the biggest reform still awaits – elimination of the death penalty.

Am I crazy for even suggesting this? I’m still new to the state, having moved here from Virginia last year. But, if Virginia, the former cradle of the confederacy can end capital punishment – which it did recently – Arizona can do the same.

We’re all probably familiar with the traditional arguments against the death penalty: it is cruel and unusual punishment, the Bible enjoins us against killing, and the process is prohibitively long because of necessary safeguards. Any liberal is familiar with this line of argument against capital punishment.

But there is a strong conservative case to be made against the death penalty. From this perspective, capital punishment does not deter crime, its mistakes are irredeemable, its costs are unwieldy, victims’ families do not often find peace or satisfaction in the executions, and other options are just as effective.

According to the National Research Council, there is no credible evidence that states with the death penalty enjoy lower crime rates as a result of executions. The decision to kill is rarely reasoned, the criminal considering other alternatives if only he knew he faced the death penalty. The reality is that most crimes, even the supposedly premediated, are done on impulse rather than with deliberative thought. Criminals typically aren’t thinking of consequences when in the heat of the moment.

To date, more than 180 death row inmates have been exonerated of their crimes. In a shocking statistic, for every 8.3 people put to death since the mid-1970s, one capital defendant has been exonerated. To some, this might be a sign that the system is working, since the innocent are cleared before execution. However, there are multiple cases in which it’s feared the innocent have been put to death, some as recently as last year. More to the point, do we trust government processes so much that we are willing to risk an innocent person’s execution when the penalty is irreversible?

Every court system that has studied the subject has concluded that the death penalty costs significantly more than its alternatives, at least 40% more and as much as three times as high. Partially, that’s because capital cases have two parts – a guilt phase about the crime itself and a separate trial for the punishment. Jurors have to be separately qualified, and investigations are more intensive and expensive. The money spent on these processes could be better dedicated to crime reduction, victim services, or drug or mental health treatment programs. It’s not surprising, then, that juries across the nation are rejecting the death penalty, concluding that life imprisonment without the possibility of parole is an acceptable alternative. In Arizona alone, only one person was sentenced to death in 2020, the same number as 2019. Why spend hundreds of thousands of dollars on a process and penalty that is now so little employed?

Ultimately, the death penalty seems premised on retribution, that old biblical sense that a perpetrator should pay with his own life for ending another’s existence. If there were any group that would seek retribution, surely it would be the victim’s family members. However, psychological research indicates that family members are rarely comforted by the perpetrator’s execution and that survivors find greater long-term satisfaction with a defendant’s life sentence. In a study from the University of Minnesota, just 2.5% of family members achieved closure from the perpetrator’s execution. As a therapist who works with victims’ families explains, “More often than not, families of murder victims do not experience the relief they expected to feel at the execution. Taking a life doesn’t fill that void, but it’s generally not until after the execution that families realize this.”

Against this backdrop, the death penalty is a relic of a bygone era. Putting aside its barbarousness, the long-term trauma it inflicts on the executioners themselves, capital punishment is prohibitively expensive, it fails to make us safer, it is fraught with error, and it does not satisfy the families of the very victims to be avenged. Life without the possibility of parole accomplishes the needed goals of punishment without these frightful costs and risks. If a state with the troubled history of Virginia can reach this conclusion, a state like Arizona can eliminate the death penalty, too.

Jon Gould is foundation professor criminology, justice and law and director of the School of Criminology and Criminal Justice at Arizona State University.

Attorney general offers again to get drugs for executions

Attorney General Mark Brnovich sent a pointed message August 20 to Gov. Doug Ducey: I can get you the necessary drugs when you’re finally ready to start executing murderers.

Brnovich noted that he has offered not once but twice before to help the governor and his Department of Corrections, Rehabilitation and Reentry to find a legal source of lethal chemicals. To date, the governor has not responded.

Now, the attorney general said he’s done the work that technically is the responsibility of the state agency. And Brnovich said now that he’s found a supplier there’s no reason for further delay by Ducey who, in his six years as governor, has yet to sign a death warrant.

Ducey was noncommittal.

“This is the first letter that I’ve received saying that there’s an actual solution to what was a lack of product that’s there,” he said August 20. “And it was just received.”

What Ducey said he wants, are “the details,” including what is the source.

“And then I’ll have a response for you,” the governor said.

Ducey insisted that he’s not ducking the issue.

“I haven’t been reticent,” he said, “There’s been no opportunity.”

But the issue is not a new one.

Brnovich first offered more than a year ago to help Ducey and the Department of Corrections, Rehabilitation and Reentry to get a new supply of lethal chemicals to begin executions on the more than 100 people on death row.

He pointed out at the time that U.S. Attorney General William Barr had just announced the federal government intends to resume executions and will use pentobarbital rather than the three-drug mixture that had previously been used.

Arizona has not had an execution since 2014 because of its inability to get lethal drugs through legal means. Brnovich said the federal government has found a legal supply of the drug, meaning the state should be able to also get its hands on it.

At that time there were 14 death-row inmates who had exhausted all their appeals.

Brnovich wrote to Ducey again last month, repeating the same offer after the federal government conducted its first execution.

In both cases, Brnovich aide Ryan Anderson said there was no formal response.

Now, Brnovich said, with the number of inmates who have exhausted their appeals at 20, he has located a supplier. All that’s needed is for Ducey or his agency to put in the order.

“The ball is in the governor’s or the Department of Corrections’ court,” Anderson said.

There was no immediate response from either the Governor’s Office or the corrections agency as to whether either had ever sought to obtain drugs for lethal injections.

The last known effort was in 2015 when the state ordered 1,000 vials of sodium thiopental, a muscle relaxant used in the execution process, from a supplier in India. That came after a domestic manufacturer refused to sell it to put people to death.

The decision to order the drugs came despite warnings by the FDA that buying the drug from India-based Harris Pharma would be illegal. Customs and Border Protection seized the drugs at Sky Harbor International Airport. They were never released.

Ducey has not expressed a personal opinion on the death penalty.

He was asked about it in 2018 after Pope Francis declared that death is unacceptable in all cases.

“I, of course, am going to listen to what the pope says,” Ducey said when asked about it. The governor is a Catholic.

“At the same time, I took an oath to uphold the law in Arizona,” he continued. “And I’m going to continue to uphold the law.”

Brnovich, in his latest letter, said the time has come.

“We must uphold the rule of law and respect court-ordered sentences,” he wrote to the governor. “It is our solemn obligation to all victims of heinous crimes, their families, and our communities, some of whom have been waiting for decades, for justice to be served.’

Bill for execution drug: $1.5M

Arizona spent $1.5 million this past fall to buy 1,000 vials of an execution drug.

A heavily redacted document obtained by Capitol Media Services shows the invoice from a not-disclosed source for jars of pentobarbital sodium salt to be shipped to the state Department of Corrections, Rehabilitation and Reentry in “unmarked jars and boxes.”

The seller’s name is blacked out.

State officials have repeatedly declined to identify where they have attempted to purchase supplies of lethal chemicals. And the 9th Circuit Court of Appeals has ruled that Arizonans have no right to know where the state obtains drugs to execute inmates.

A spokesman for the agency would not comment or answer questions about the source of the drugs, how they were obtained — and whether they were obtained legally.

“ADCRR does not discuss its procurement process for execution drugs or services rendered to carry out these legally imposed sentences,” said Bill Lamoreaux, “Moreover, the information you seek is statutorily confidential and not subject to disclosure.”

The Attorney General’s Office, which has pushed to obtain these drugs for months and is now pursuing execution dates for two inmates, referred all questions to the corrections department.

And an aide to Gov. Doug Ducey declined to respond to the purchase order originally published by The Guardian.

But Dale Baich, an assistant federal public defender who represents several inmates on Arizona’s death row said he was “shocked” at the steps the state has taken to hide the facts related to its efforts to restart executions for the first time since 2014.

“Taxpayer money should not be spent in this matter without complete transparency,” he said in a prepared statement, specifically noting that the state wants the items shipped in “unmarked boxes.”

Beyond that, Baich said it was disturbing that the agency is spending that kind of money given the other problems.

That includes an internal staffing report obtained last year by KJZZ which showed a vacancy rate of more than 54% for correctional officers at the Eyeman State Prison in Florence. The agency also has run up millions of dollars in both federally imposed fines and legal costs over the health care conditions in its facilities.

“Surely there is a better use for this money than carrying out executions,” Baich wrote.

The refusal of the corrections department to provide details also raises questions about how the drugs were obtained.

Pentobarbital is an otherwise legal drug which can be used for everything from controlling seizures to a pre-anesthetic in the operating room. But manufacturers generally do not want to sell their drugs to be used for executions.

The last time the state tried to get some drugs for execution it didn’t work out so well.

In 2015 Arizona ordered 1,000 vials of sodium thiopental, a muscle relaxant used in the execution process, from a supplier in India. That came after a domestic manufacturer refused to sell it for executions.

That decision to order the drugs came despite warnings from the federal Food and Drug Administration that buying the drug from India-based Harris Pharma would be illegal. That followed a 2012 decision by a federal judge, ruling in a lawsuit brought by inmates, requiring the federal agency to block importation of the drug as unapproved.

It ended up with Customs and Border Protection seizing the drugs at Sky Harbor International Airport. And in 2017 the FDA refused a request by Arizona to release them.

Brnovich urges Ducey to start executions again in Arizona

Now that the federal government plans to resume capital punishment, Arizona should as well, according to Attorney General Mark Brnovich.

U.S. Attorney General William Barr announced Thursday that the Department of Justice would resume executions of federal death row inmates for the first time in nearly two decades, stating that “we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

Brnovich echoed Barr in a letter to Gov. Doug Ducey.

“Justice must be done for the victims of these heinous crimes and their families. Those who committed the ultimate crime deserve the ultimate punishment,” Brnovich wrote on Friday.

Brnovich requested the governor assist the Arizona Department of Corrections obtain the drugs needed to perform lethal injections on the state’s 14 death row inmates who have exhausted all of their appeals.

Corrections Director Charles Ryan has twice changed the state’s protocol for lethal injections since 2014, the last time Arizona executed an inmate.

Ryan did away with the two-drug procedure used to execute Joseph Wood, who took two hours to die after he was administered a combination of hydromorphone, a painkiller, and midazolam, a sedative. The same mix of drugs was used months earlier in Ohio and left a prisoner choking and snorting for 19 minutes as he died in January 2014.

Ryan initially implemented a three-drug procedure that was never used. Instead, the department again changed the protocol in 2017, calling for the use one of two drugs – sodium pentothal or pentobarbital – in a move that met the demands of attorneys representing seven Arizona inmates on death row.

During that time, Arizona officials tried and failed to import sodium thiopental from India in order to perform lethal injections. Those drugs were seized at Sky Harbor International Airport by the U.S. Food and Drug Administration in 2015 – FDA officials said the drugs appeared to contain unapproved and misbranded drugs.

Under Barr’s orders, the federal government will use pentobarbital to begin executions again in December and January. Brnovich inferred that Barr would not have made the announcement if pentobarbital wasn’t available for use, the attorney general wrote to Ducey.

“In order to administer the lawfully imposed death sentences in accordance with the Arizona Constitution, my office respectfully requests your assistance in obtaining pentobarbital,” he wrote. “We stand ready to vigorously defend you and the Department of Corrections in this effort and urge you to act without delay.”

Brnovich added that a recent Justice Department opinion clears the way for Arizona to import pentobarbital without interference from the FDA.

A spokesman for Ducey said the governor is reviewing the letter.

Condemned prisoner argues for clemency

As the execution of Clarence Dixon draws near, his attorneys are challenging whether the law enforcement-heavy state clemency board can give him a fair hearing and whether their client is mentally competent to be put to death.

Before his scheduled May 11 execution, Dixon has a chance to plead for mercy – a hearing in front of the Arizona Board of Executive Clemency on April 28. But with three of the four board members having a combined 85 years of law enforcement experience, Dixon’s attorneys say he won’t get a fair shake.

Earlier this week, they filed a challenge in Maricopa County Superior Court, saying the board’s current makeup breaks the law.

This undated photo provided by the Arizona Department of Corrections shows Clarence Dixon, who was sentenced to death in the 1977 killing of Deana Bowdoin, a 21-year-old Arizona State University senior, in Maricopa County. On Tuesday, April 6, 2021, prosecutors said they have told the Arizona Supreme Court that they intend on soon seeking execution warrants for Dixon and another death-row inmate in what would be the state’s first executions in almost seven years. (Arizona Department of Corrections via AP)

“If the board proceeds with a clemency hearing under its current composition, it will violate Arizona law and deprive Dixon of his right to a clemency hearing consistent with the requirements of due process under the state and federal constitutions,” Dixon’s attorneys wrote, noting that state law sets a limit of two board members from any one profession.

Board members Salvatore Freni, Louis Quinonez and Michael Johnson are all retired cops. The board’s chair Mina Mendez, who was not in law enforcement, spent six years as an assistant attorney general in the state Attorney General’s Office. The board typically has five members, but one seat is vacant.

Dixon’s attorneys said that the Legislature’s intent was for there to be more diversity on the board.

After a capital clemency hearing, the board makes a recommendation to the governor on whether to grant reprieve. The board can also make recommendations regarding commutation. Gov. Doug Ducey will have the final say. If he denies clemency, he is not required to give an explanation.

Capital clemency has never been granted in Arizona, nor has the board ever recommended it. In the rare cases where capital clemency has been granted in the U.S., the reasons have included mental illness, a possibility of innocence and a co-defendant having a lesser sentence, according to the Death Penalty Information Center.

As of April 14, the clemency board has not filed a reply to Dixon’s complaint in Superior Court.

Dixon, who was sentenced to death in 2008 for the 1978 rape and murder of ASU student Deana Bowdoin, has a lengthy history of mental illness, and his mental and physical health have deteriorated in prison, according to his attorneys

His attorneys note that Dixon, who is blind, has long had paranoid schizophrenia and has previously been determined by an Arizona court to be mentally incompetent and legally insane.

Two days before Dixon killed Bowdoin, then-Maricopa County Superior Court Judge Sandra Day O’Connor found him not guilty by reason of insanity in a separate assault case.

The attorneys said Dixon has “experienced regular hallucinations” for the past 30 years.

They wrote that Dixon’s mental illness “renders him incompetent to be executed” because it prevents him from being able to “form a rational understanding” of the reasons why the state is executing him.

Arizona law requires that the condemned simply be aware that they’re to be executed. That’s too narrow of a standard to be constitutional, the attorneys argue, saying that the person must also “have a rational understanding of the state’s reason for the execution.”

The attorneys request that Dixon be evaluated to determine his competency.

“It would offend humanity to execute Mr. Dixon, a person who is so wracked by mental illness that he cannot comprehend the ‘meaning and purpose of the punishment,’” the attorneys wrote.

Last week, Attorney General Mark Brnovich filed a motion for warrant of execution for another death row inmate, Frank Atwood, who kidnapped and murdered an 8-year-old Tucson girl Vicki Lynn Hoskinson in 1984. Atwood’s case has been delayed because one of his attorneys died in February. The state Supreme Court now plans to discuss his case on May 3. If the court issues an execution warrant on May 3, Atwood’s execution will be set for 35 days later.

Court: Arizona governor not required to carry out execution

The Arizona Supreme Court ruled Wednesday that state law doesn’t require Gov. Katie Hobbs to carry out the April 6 execution of a prisoner who was convicted of murder.

The decision marks a legal victory for the newly elected Democratic governor whose office said the state isn’t currently prepared to carry out the death penalty. The high court had set the April execution date for Aaron Gunches, who fatally shot Ted Price near Mesa in 2002.

The order came after Hobbs said executions will not be carried out until Arizonans can be confident that the state isn’t violating constitutional rights when it enforces the death penalty.

execution, death penalty, Mayes, Brnovich, Gunches — This undated photo provided by the Arizona Department of Corrections, Rehabilitation and Reentry shows Aaron Brian Gunches, who was convicted of murder in the 2002 killing of Ted Price in Maricopa County,

The governor vowed two weeks ago that she wouldn’t carry out the court’s order while the state reviews death penalty protocols that she ordered because of Arizona’s history of mismanaging executions.

Lawyers for Hobbs said the department lacks staff with proper expertise and does not have a current contract for a pharmacist to compound the pentobarbital needed for an execution. They also said corrections officials are unable to find out the identity of the state’s prior compounding pharmacist, who primarily had contact with an official no longer with the department.

A top corrections leadership position critical to planning executions remains unfilled.

Corrections Director Ryan Thornell has said he was unable to find enough documentation to understand key elements of the execution process and instead has had to piece it together through conversations with employees on what might have occurred in past executions.

Hobbs maintained that while the court authorized Gunches’ execution, its order doesn’t require the state to carry it out.

Karen Price, whose brother was the victim in Gunches’ case, had asked the court to order Hobbs to carry out the execution. Colleen Clase, an attorney for Karen Price, didn’t immediately return a call seeking comment on Wednesday evening.

Gunches pleaded guilty to murdering Ted Price, who was his girlfriend’s ex-husband.

Arizona, which currently has 110 prisoners on death row, carried out three executions last year after a nearly eight-year hiatus brought on by criticism that a 2014 execution was botched and because of difficulties obtaining execution drugs.

Since then, the state has been criticized for taking too long to insert an IV for lethal injection into a condemned prisoner’s body and for denying the Arizona Republic permission to witness the three executions.

Gunches, who is not a lawyer, represented himself in November when he asked the Supreme Court to issue his execution warrant so that, he said, justice could be served and the victim’s families could get closure. In Republican Mark Brnovich’s last month as state attorney general, his office asked the court for a warrant to execute Gunches.

But Gunches then withdrew his request in early January, and newly elected Democratic Attorney General Kris Mayes later asked for the warrant to be withdrawn.

The state Supreme Court rejected Mayes’ request, saying that it must grant an execution warrant if certain appellate proceedings have concluded and that those requirements were met in Gunches’ case.

In another reversal, Gunches said in a filing that he still wants to be executed and asked to be transferred to Texas, where, he wrote, “the law is still followed and inmates can still get their sentences carried out.” Arizona’s high court denied the transfer.

Death penalty return takes state backwards

Attorney General Mark Brnovich has announced the planned resumption of executions and has expressed his intention to make sure the 21 death row inmates who have exhausted their appeals are killed before he leaves office. This politically motivated decision is completely at odds with public opinion and completely ignores the glaring flaws in Arizona’s penalty system. It would be a disaster for our state and damage our standing for years to come – perhaps irreparably. It must be stopped.

As a business leader who has experienced the justice system first-hand, I know how bad the death penalty is: for our businesses, for our people, and for Arizona. It completely undermines any assertion that our laws and institutions reflect progressive values or evidence-based approaches, which in turn undermines investment and employment. As we look to rebuild post-pandemic, it’s crucial that we get people back to work and get our economy going again. Ending capital punishment will help.

Business and investor opposition isn’t hypothetical – it’s a rapidly growing movement. In March, some of the world’s preeminent corporate figures launched a campaign calling for its end, titled Business Leaders Against the Death Penalty. Supporters included billionaire employer and investors like Virgin founder Sir Richard Branson, Vista Equity Partners chairman Robert Smith, and Galaxy Investment Partners CEO Mike Novogratz. By moving away from the death penalty, we will demonstrate shared values with stakeholders critical to our recovery.

We need cost-effective justice solutions that work. The death penalty has been proven repeatedly to be ineffective as a deterrent, and in fact, makes our communities less safe by siphoning off resources from programs that actually reduce crime. Its failure also comes at huge financial cost – at least $2 million more per case than a life sentence. In a pandemic driven recession, it represents an unacceptable waste of public funds. This was brought into sharp relief last month, when it was revealed that Arizona secretly paid $1.5 million dollars for execution drugs, at a time when 1 million Arizonans are struggling with hunger – including more than 300,000 children. Our government should prioritize saving lives, rather than ending them.

It carries an alarming risk of killing innocent people – and Arizona has sentenced innocent people to die. Ten people have been exonerated from our death row after evidence revealed their innocence. Wrongful executions cannot be corrected. This should be unacceptable to anyone.

Capital punishment is racist and arbitrary – in Arizona and beyond. Although only 5.2 percent of our state’s population is Black, they make up 16% of our death row population. We have also sentenced almost a quarter of all Native Americans in the U.S. currently facing the death penalty. The racial bias that permeates our justice system is arguably the most pressing social issue facing an American generation. If we resume executions, we will send a profoundly damaging signal about Arizona’s indifference to that issue.

For these reasons and more, support for capital punishment continues to decline. Polls last year revealed that, for the first time ever, most Americans support alternative punishments for murder. Virginia, Colorado, and New Hampshire have all abolished it in the past two years, recognizing it as arbitrary, unfair, racially discriminatory, ineffective and harmful. Closer to home, Nevada is on the cusp of ending it. Support for abolition is reflected across the political spectrum. Conservatives and people of faith are increasingly opposed to the practice as it contradicts pro-life values, wastes public resources, and runs the risk of killing innocents. If these executions go ahead, we will show ourselves to be completely out of touch with prevailing beliefs.

We must do everything in our power to shut down Arizona’s machinery of death once more. By attempting to restart it, Attorney General Brnovich is acting against Arizona’s interests, and ignoring what years of research have made startlingly clear: the death penalty fails to deliver justice by every conceivable measure.

Michelle Cirocco is the Chief Social Responsibility Officer for Televerde, the preferred global revenue creation partner supporting marketing, sales and customer success for B2B businesses around the world. Seven of Televerde’s 10 engagement centers are staffed by incarcerated women, representing 70 percent of the company’s 600+ global workforce. Michelle is also the Executive Director of Televerde Foundation.

Death row thinning in Arizona, nationally – reasons vary

The death row population in Arizona has largely been on the decline since 2010, following a nationwide trend observed over the past 15 years. Meanwhile, experts are at odds about the forces at play.

According to the Bureau of Justice Statistics’ most recent data – accounting for prisoners under sentence of death as of December 31, 2015 – Arizona did see its first uptick in death row inmates in five years with the addition of two inmates in 2015. But that runs counter to the slow yet steady decline of the state’s death row.

Ron Reinstein, a retired Maricopa County Superior Court judge who now chairs the state’s Capital Case Oversight Committee, attributed the trend to ongoing challenges in obtaining the drugs states like Arizona need to perform lethal injections, the high costs of capital cases and, particularly, stronger defense performances.

Those factors resonate with an analysis of the data done by the Death Penalty Information Center.

Death rows are shrinking faster than new death sentences are imposed, the information center concluded. The data shows 28 inmates nationwide were executed in 2015 compared to 82 removed by other means – 49 new inmates were admitted that year. That means exonerations, reversals of death sentences or convictions and death by other causes – including natural death while in wait – have occurred at a higher rate than the executions sought by prosecutors.

Maricopa County Attorney Bill Montgomery (Cronkite News Service Photo by Christina Silvestri)

Maricopa County Attorney Bill Montgomery had other thoughts on what might explain the trend.

He said fewer death sentences have coincided with a decline in the sort of crimes that might lead prosecutors to seek the death penalty. With fewer murders committed – 2015 saw the lowest homicide rate since 1960, he said – a decline in death penalty cases is expected.

Reinstein questioned that suggestion.

“As far as Arizona goes, there’s Maricopa and then there’s the rest of the state,” he said.

He said Montgomery’s office “seems to be filing the same type of cases they always had, and that number – somewhere between 65 and 70 – has pretty much held true ever since the drop off” following former County Attorney Andrew Thomas’ administration, under which death penalty cases exceeded 140.

“If what Bill’s saying is true, then I think you’d see that number go down more… We haven’t seen any kind of reduction in that 65 to 70 range.”

And since roughly September 2015, according to Reinstein, only one of the nine capital cases that went to trial in Maricopa County ended with a death sentence.

That could simply be a result of the types of cases presented to jurors, he said, and could easily change if the county saw a spurt of murders involving torture or contract killings.

Prosecutors in Yuma County, for example, successfully argued for the death penalty in a case involving six victims. Reinstein said that was the first death sentence imposed outside of Maricopa or Pima counties in nearly a decade.

And that, in Reinstein’s view, seems to reflect the difficulty of convincing 12 jurors to unanimously find death is warranted.

According to the Death Penalty Information Center, most Americans prefer life without parole, an option in Arizona, to the death penalty. Public opinion may act as a deterrent to the costly battle over a death sentence or even public office.

Montgomery disagreed with that assertion.

In terms of public opinion–which still polled favorably in 2015 – he said that does not figure into whether his office seeks a death sentence.

“It’s not like we’ve got this huge data set of jury verdicts that would allow us to extrapolate a general or any kind of specific sense among the electorate,” he said.

And as for his own personal politics: “I’ve never made the death penalty a key component of any campaign or re-election as the county attorney, nor have I seen – I can’t recollect any county attorney in Arizona making that a significant issue,” he said. “I think that’s low-hanging fruit for some people to try to justify why the number of capital cases goes up or down.”

Ducey says state law, not pope, dictates his action on death penalty

Gov. Doug Ducey said he will obey Arizona law and not Pope Francis, who has now declared that the death penalty is unacceptable in all cases.

But the governor noted that, at least for the moment, he doesn’t have to make that choice.

The issue arises because the pope, in the strongest statement ever, said earlier this month that executions are “an attack” on human dignity. Francis also promised to work “with determination” to abolish capital punishment wherever it still exists.

“I, of course, am going to listen to what the pope says,” Ducey said on Monday when asked about it. The governor is a practicing Catholic.

“At the same time, I took an oath to uphold the law in Arizona. And I’m going to continue to uphold the law,” he added.

Anyway, Ducey said, it’s not like this is something new.

“This has been the catechism for some time of the church,” he said, referring to the beliefs laid on in writing of the Catholic faithful. He said Francis was only “adding a qualifying comment.”

But that has not exactly been the case.

In his 1995 Evangelium vitae — the Gospel of Life — Pope John Paul II said that execution is only appropriate in cases of absolute necessity, “in other words when it would not be possible otherwise to defend society” through non-lethal means. That language provided enough of an escape clause of sorts for Catholic officials like the governor who must sign death warrants.

What Francis said earlier this month effectively closes any loophole, at least as far as Catholic doctrine.

The governor sidestepped questions of whether he is saying that state statutes, and his oath to obey them, are superior to God’s law, at least as interpreted by the pope.

“We can have an interesting discussion about that and about life,” Ducey responded. He pointed out that, at least for the time being, he doesn’t have to make that choice.

“Thankfully, there’s nothing on the docket in front of me at the time,” he said.

The last execution in Arizona was in 2014, under Gov. Jan Brewer. Since that time, a series of legal actions about the penalty and the drugs used to execute inmates have resulted in a virtual moratorium on executions.

There are currently 117 inmates on “death row,” including three women.

Justices questions constitutionality of Arizona death penalty laws

The U.S. Supreme Court won’t disturb Arizona’s death penalty statutes despite claims – and what several justices say is some evidence – that they may be overly broad.

Without comment the majority of the justices on Monday brushed aside claims by Abel Hidalgo that state laws fail to discriminate between the types of murders that merit execution and those for which a death penalty is inappropriate.

But in a show of how divisive the issue is, four of the nine justices said the Arizona statutes really do need a closer look by the nation’s high court, especially given evidence — undisputed by the state — that they open the door for prosecutors to seek the death penalty in virtually every case. Justice Stephen Breyer, writing for himself and three other colleagues, said the evidence presented “points to a possible constitutional problem.”

In general, murder by itself under Arizona law does not entail capital punishment.

Instead, prosecutors must present evidence to jurors of at least one “aggravating circumstance,” such as performing murder for money, the defendant was on probation, or the homicide was committed in “an especially heinous, cruel or depraved manner.” Defense attorneys then can provide “mitigating circumstances” such as the age or mental development of the defendant, with the final decision up to the jurors.

There is no question here but that the evidence showed at least one of these aggravating circumstances applied in this case.

According to court records, Hidalgo agreed to kill Michael Cordova in exchange for $1,000 from a gang member. He also killed Jose Rojas who showed up at the auto body shop where Hidalgo was waiting for Cordova, with each victim shot five more times in the head after the initial fatal bullets.

Hidalgo, who pleaded guilty to two counts of first-degree murder, appealed his death sentence to the Arizona Supreme Court. He pointed out that of 866 murder cases examined in Maricopa County alone between 2002 and 2012, 856 had some aggravating factor making them potential death penalty cases.

That failure to distinguish between types of murders, he argued. is overly broad and unconstitutional.

Chief Justice Scott Bales, writing for the unanimous Arizona Supreme Court last year, rejected those arguments, saying there is no due process violation simply because it effectively leaves the decision whether to seek the death penalty to prosecutors. And Bales said there are built-in protections for defendants, including mandatory appellate review.

On Monday, Breyer said states are required to enact “constitutionally necessary” laws to narrow which cases merit seeking the death penalty and which do not. Breyer said the reasoning cited by the Arizona Supreme Court in upholding the state death penalty law, “cannot be squared” with prior Supreme Court precedents.

But Breyer said that, given the history of this case, he had to agree that Hidalgo was in no legal position to challenge Arizona’s death penalty statute. He blamed that, however, on Arizona courts, saying they denied a bid by Hidalgo to get a hearing where judges could take a closer look at the evidence and determine if, in fact, Arizona’s death penalty statute is overly broad as based on the 98 percent of first-degree murder cases being eligible for the death penalty.

“That evidence is unrebutted,” Breyer wrote.

“It points to a possible constitutional problem,” the justice continued. “Evidence of this kind warrants careful attention and evaluation.’

But Breyer said the failure of Arizona court to conduct an evidentiary hearing left he and his colleagues with insufficient information to be able to reach a conclusion on whether that 98 percent figure, by itself, is enough to void the state law.

Breyer said future capital defendants “may have the opportunity to fully develop a record to the kind of empirical evidence that (Hidalgo) points to here,” he wrote.

Mass murderer seeks to avoid death penalty

A convicted quintuple murderer is looking to the Arizona Supreme Court for leniency and a way to avoid the death penalty.

William Craig Miller, 43, murdered five people in Mesa in 2006, including two children, in an apparent attempt to dispose of witnesses after he and one of his victims burned down Miller’s house for the insurance money.

Miller received the death penalty for each of the five counts of first degree murder. The jury took less than two days to deliberate before returning the verdict. Miller was also found guilty of four counts of solicitation of first degree murder and one count of burglary. The Supreme Court affirmed his conviction and sentences in 2013.

In a post-conviction proceeding, Miller argued his Sixth Amendment right to effective assistance of counsel was violated, in part because his counsel did not object to a misworded jury instruction. The court ordered a new penalty phase trial, and the state appealed.

The state Supreme Court took the case and will hear oral arguments at 9:30 a.m. on Thursday.

The state argues that the jury instructions used were adopted with the defense bar’s input, through the State Bar’s jury-instructions committee, and were also used in at least three other capital cases without objection.

The issue is with how “significantly impaired” was defined in the instructions.

The instructions asked whether the significant impairment “prevented” Miller from knowing right from wrong and complying with the law. The instructions should have asked the significant impairment “substantially reduced” those abilities.

The post-conviction court stated that the instructions caused jurors to “reject[] the evidence of Miller’s mental illness/personality disorder if they believed it did not prevent him from appreciating the wrongfulness of his conduct or conforming his conduct to the requirements of the law, even if they believed it substantially reduced his ability to do so.”

However, if the jury had received the correct instructions, the state also contends that it wouldn’t have returned a different outcome than the five death sentences, stating that Miller and the post-conviction court didn’t consider all the facts and aggravating factors in asserting the contrary.

Miller’s crimes more than a decade ago shook the community, then-county attorney, now state Supreme Court Justice Bill Montgomery said after Miller’s 2011 conviction. Montgomery has recused himself from the case.

Steven Duffy, 30, helped Miller burn his house down in 2005 but later started cooperating with the arson investigation, and Miller was indicted.

Angered that Duffy was helping the police, Miller then tried four times to hire someone to kill Duffy and his girlfriend, Tammy Lovell, 32, according to court documents. When that failed, he shot and killed them himself, along with Duffy’s brother Shane, 18, and Lovell’s 10- and 15-year-old children.

He then faked a burglary to suggest the killer was coming for him, next.

A 2006 East Valley Tribune article described Miller as “Full of bluster and bravado, behind the wheel of a fancy car, dropping $200 for dinner and living the high life in Scottsdale” before the arson and the murders. Even as police started their investigation, he reveled in the attention and would call up reporters to joke about the news vans outside his house.

Miller’s murder trial was delayed five years to 2011, caused by Miller considering representing himself, competency proceedings and a shuffling of his defense team.

At the time, the Supreme Court concluded that no Sixth Amendment speedy trial violation occurred because Miller would have been incarcerated anyway due to his arson conviction. The Court also noted that Miller remarked during the trial he was “going to get convicted anyway,” regardless of delay.

New corrections policy, no drugs bring Arizona executions to a halt

June marked the end of a three-year long legal battle to tighten up Arizona’s execution laws, but even after the state reached an agreement, the fate of those on death row is still uncertain.

Dale Baich (Photo by Gary Grado/Arizona Capitol Times)

Dale Baich, an assistant federal public defender and supervising attorney in the Capital Habeas Unit in the Office of the Federal Public Defender said the settlement was completely unprecedented.

Seven death row prisoners sued the state following Arizona’s last execution in 2014, when it took nearly two hours and 15 “lethal doses” of midazolam, a sedative, and hydromorphone, a painkiller, to kill convicted murderer, Joseph Wood.

A large portion of the litigation surrounded regulating the medication used to execute prisoners. The state traditionally used a drug cocktail of a sort, which usually consisted of two or three different drugs, and often a paralytic. The new protocol does not allow for “cocktails” to be used in executions anymore.

The new protocol prohibits the state from using a paralytic drug during an execution. Now, the protocol also requires that the state execute prisoners with one of two drugs: pentobarbital or sodium thiopental.

Baich recognized the new protocol, effective June 13, as a success for the prisoners.

“The death row prisoners were concerned about the drugs the Arizona Department of Corrections were using to carry out executions,” Baich wrote in an email. “By agreeing to never again use midazolam as one of the drugs and removing the paralytic from the protocol, the prisoners have more confidence that they will not be harmed or tortured if they are executed.”

The settlement also expanded the list of witnesses for executions, and allows witnesses to see more of the execution process than previously allowed. It also took steps to reduce the discretion of prison employees during the execution process.

However, the Arizona Department of Corrections is now faced with a new problem.

There are presently 119 prisoners on death row in Arizona, and as of now, the state has no means of obtaining the drugs to execute them. Sodium thiopental is not manufactured in the United States and is also illegal to import. And while pentobarbital is manufactured in the U.S., its manufacturers are adamant that their drug not be used for executions.

So for now, Baich said both the state and the prisoners have no choice but to wait.

However, Baich said for many prisoners, more time on death row is not a bad thing. For those prisoners, Baich said, more time alive is more time for new facts in their cases to surface and for death penalty laws to change.

According to the Arizona Department of Correction’s website, since 1937 the average death row prisoner has spent 12 years there. But records show that some prisoners received their death sentences more than 30 years ago, like convicted murderer Hooper Murray who has been on death row since 1983.

In many situations, lengthy stays on death row are the result of slow-moving legal processes. But during their time on death row, prisoners live alone in an 86.4 square-foot, concrete cell for 23 hours per day. They have three opportunities for recreational activities and showers each week. They are allowed visitation, but all visits are non-contact.

Baich called the living conditions of death row prisoners “harsh.” According to the Department of Corrections website, prisoners are allowed “limited” reading and writing material while they are confined, but have unlimited access to legal materials.

“This would be a good time to have an open and honest public debate about the utility of the death penalty and whether it is a fiscally responsible public policy,” Baich wrote in an email. “There is an equally effective alternative; life without parole or release.”

The Arizona Department of Corrections declined to comment on the settlement.

Pima County Attorney seeks delay in execution

Pima County’s top prosecutor is seeking a delay in the bid by Attorney General Mark Brnovich to set an execution date for Frank Jarvis Atwood.

But in a spat that is pointing up a divergence of views on capital punishment, he is spurning her request.

In a letter to Brnovich obtained by Capitol Media Services, Laura Conover said that since taking office in January she is reviewing a number of cases, including those on death row, because of an “unfortunate” history of the department she said led to several disbarments and appellate cases “born out of prosecutorial misconduct.”

“Now that my name is attached to all the work of the office, I need to undertake a review to be certain we haven’t overlooked anything,” she wrote. Conover said she wants to “put to rest the history here out of the old homicide and capital units.”

Conover is not seeking to overturn the death sentence imposed on Atwood, a previously convicted pedophile, who 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.

Atwood has continued to maintain his innocence, even after exhausting all appeals, contending police planted evidence, including testimony that pink paint on the front bumper of Atwood’s car had come “from the victim’s bike or from another source exactly like the bike” and that Vicki’s bicycle had nickel particles on it that were consistent with metal from the bumper.

“By no means do I want to cause undue delay,” Conover wrote Brnovich. “But I think we will all be well served by a temporary hold on any death warrants from Pima cases while we put to rest the history here out of the old homicide and capital units.”

Brnovich dismissed her request.

Part of it, he wrote, is because the Atwood case was handled by someone from his office and not Pima County, “rendering any proposed review of this case by you unnecessary, as well as untimely.”

That, however, us only partly correct.

John Davis actually started handling the case when he was a deputy Pima County attorney. He was allowed to continue handling the case when he went to the Attorney General’s Office.

Brnovich, in his response to Conover, also took a slap at her for making the request in the first place.

“I am concerned that your letter is less about an internal review and more about ending the death penalty in general,” he told her, noting that she campaigned on a platform of ending capital punishment. Brnovich said that it is her right, as the county attorney, to decide when to seek the death penalty.

“As attorney general, I am charged with enforcing the laws of Arizona, including carrying out capital punishment sentences,” he said. “I also take seriously the finality of jury verdicts, as well as the constitutional right afforded crime victims to a prompt and final resolution of a criminal case.”

Joe Watson, spokesman for Conover, acknowledged that her reference to “disbarments” of attorneys may have been overstated.

Only Ken Peasley was forever denied the ability to practice law again after it was determined that he had allowed a police officer to lie on the stand in two murder cases. But Watson said other prosecutors had their law licenses suspended.

But Watson said there is a “volume of misconduct” by prosecutors which has been detailed when appellate courts reviewed Pima County cases. That, he said, “could result in a lengthy review, especially in the homicide and capital case arena,” the review that Conover wants to conduct before anyone else convicted in her county is put to death.

Watson acknowledged the opposition of his boss to the death penalty and her decision not to seek it in future cases.

Part of that, he said, is based on her campaign promises. But Watson said that the move also frees up the attorneys assigned to capital cases to focus on the backlog of other homicide cases that had accumulated before Conover took office.

And there’s a philosophical element to it, too.

“The death penalty perpetuates ongoing trauma to victims and their families,” Watson said. And then there’s the fact that “mistakes can happen, evidence can get lost, and science can fail us.”

He also said that, at least in Pima County, the overwhelming sentiment is to stop seeking the death penalty.

Prisoners try to slow push for executions

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.

SCOTUS to hear AZ death row inmate appeal

Visitors walk outside the Supreme Court building on Capitol Hill in Washington, Monday, Feb. 21, 2022. (AP Photo/Patrick Semansky)

WASHINGTON – The U.S. Supreme Court on March 28 agreed to hear an Arizona death-row inmate’s claim that he was wrongly denied the chance to tell jurors he would be ineligible for parole if they sentenced him to life instead of death.

John Montenegro Cruz killed a Tucson police officer in 2003 and has been on death row since 2005 – more than a decade after the Supreme Court said defendants have a due process right to tell jurors they would spend the rest of their lives behind bars if sentenced to life.

Arizona courts did not allow that right until 2016, when the U.S. Supreme Court directly ordered the state to do so. Cruz asked for a resentencing, citing the 2016 ruling, and his attorneys said it “should have been an easy case” for the Arizona Supreme Court to order the new hearing.

John Montenegro Cruz was sentenced to death for the 2003 killing of a Tucson police officer, but he says he was wrongly denied the chance to tell jurors he would have been ineligible for parole had they sentenced him to life. (Photo courtesy Arizona Department of Corrections, Rehabilitation and Reentry)

Instead, the state court in June said Cruz should not get another sentencing hearing because the high court’s 2016 ruling was not a “significant change in the law” that would merit a new hearing.

“The Arizona Supreme Court’s refusal to follow the same approach here creates a square conflict on an important issue of federal law in a case with life-or-death stakes,” Cruz said in his petition to the U.S. Supreme Court.

That petition said the decision in Cruz’s case could affect more than two dozen other defendants in Arizona who have sought review under the 1994 ruling that established the due process right – Simmons v. South Carolina – or the 2016 ruling, Lynch v. Arizona, that enforced it in the state.

Calls seeking comment from Attorney General Mark Brnovich’s office were not immediately returned March 28. But an attorney for Cruz welcomed the high court’s decision to hear the case.

“We are gratified that the U.S. Supreme Court has decided to hear the case and look forward to the Court’s hearing later this year,” Neal Katyal said in an emailed statement.

The case began in 2003, when Cruz was being questioned by Tucson Police Officer Patrick Hardesty as part of hit-and-run investigation. Cruz started to run, according to court documents, and Hardesty chased him. At some point Cruz opened fire and hit Hardesty five times, with four of the shots fired from less than a foot away, killing the officer on the spot.

Cruz was charged with one count of first-degree murder, convicted and sentenced to death in 2005. Among the factors contributing to the death sentence was the fact that the victim was a police officer.

Under Arizona law, defendants in capital cases are not eligible for parole if sentenced to life, and Cruz’s trial attorney tried to call a witness from the state’s Board of Clemency to testify to that fact. But the request was denied.

The jury foreperson said after the sentencing that jurors wanted to find a reason to be lenient, but they did not think they had “an option to vote for life in prison without possibility of parole,” so they voted for the death sentence, according to Cruz’s petition.

When Cruz filed for post-conviction relief, citing the 2016 Lynch ruling, the Arizona Supreme Court said that Lynch was not a change in the law but merely a “significant change in the application of the law,” which did not merit a new hearing.

“Thus, Cruz could not obtain the benefit of Simmons now because it had been clearly established when he was sentenced to death, even though Cruz had been denied the benefit of Simmons when he was sentenced to death because the Arizona Supreme Court misapplied it,” Cruz’s lawyers wrote.

In its response, the state said that Cruz also failed to ask the trial judge to inform jurors that state law “did not allow parole for defendants, like Cruz, who committed felonies after 1993,” ignoring his claim that he was denied the chance to call a witness who would have said that.

Robert Dunham, the executive director of the Death Penalty Information Center, noted that the Supreme Court has narrowed the scope of the question in the case to whether the Arizona Supreme Court’s grounds for ruling against Cruz were adequate.

“What that means is if Arizona has its own state law grounds for rejecting Cruz’s claim, and that state law has been adequately applied and this is not a new procedural rule … then Cruz doesn’t get a review of this claim,” Dunham said.

This is not the only Arizona death-row case the justices have considered. The U.S. Supreme Court in December heard the appeals of two inmates who argued they had ineffective assistance of counsel and needed new hearings.

No ruling has been handed down in those cases. But Dunham said it isn’t a coincidence that Arizona is again before the high court.

“Arizona has historically provided defendants substandard representation and denied death row prisoners meaningful access to judicial review,” he said.

Dunham said it’s unclear whether Cruz’s death sentence will be overturned if the Supreme Court rules in his favor, or if it will be returned to the lower courts for resentencing. Arguments in the case have not yet been scheduled, but it will not likely be heard until after the next court term begins in October.

“Regardless of what the outcome of this case is, it raises significant questions about whether Arizona can be trusted to provide fair trial and fair appeals in death penalty cases,” Dunham said.

Secrecy prevails as executions to resume

Arizona is readying to resume executions after nearly seven years, although the Arizona Department of Corrections, Rehabilitation and Reentry did not provide reassurances that the medical team or the drugs used would avoid issues that surfaced through litigation leading up to and during the hiatus.

The department has updated its protocol since the most recent execution in Arizona, that of Joseph Wood in 2014, but hasn’t quashed concerns that it might not follow it. Wood snorted and gasped for air for nearly two hours as he was given 15 doses of the sedative Midazolam and hydromorphone, a painkiller.

Currently, 20 death row inmates have exhausted their appeals in Arizona.

Federal public defender Dale Baich, who specializes in death penalty cases, represented Wood. He said in the past, the department has said, “Trust us,” but then after litigation, it became clear the state was cutting corners.

He noted that when the state wants to tackle an infrastructure or repair project, all of the information is public — the bids, the names of the contractors, the cost. But much information about who is administering what to the condemned is kept confidential.

“Why is it that when it comes to carrying out executions, the state wants to shroud everything in this veil of secrecy?” Baich asked. “The public should be concerned about the qualifications of the people doing this work. The public should be concerned about the drug coming from a legitimate source and not the gray market.”

Caroline Isaacs, Arizona program director for American Friends Service Committee, said she had no faith in the department to be transparent. The committee is a Quaker organization advocating for peace and social justice.

“If we can’t get information about things like whether or not the locks work, or whether or not their software is operational, I have zero confidence that we’re going to get anything even close to resembling transparency on execution,” Isaacs said.

The department did not answer whether a medical professional had been hired to oversee the executions or whether the department could assure the public that the medical team was qualified, instead pointing to state law that protects the identities of those involved in executions.

But Baich noted that there have been documented instances of people not being qualified to do what needs to be done as physician executioner.

During the hiatus from executions, the department has made changes to protocol regarding what drugs it can use and added some transparency measures, such as allowing witnesses — journalists, family members and officials — to watch and hear the execution, starting when the condemned enters and is strapped down and to see the drugs being administered.

As part of a 2017 settlement, the department agreed not to use paralytic drugs in future executions and is now limited to the barbiturates pentobarbital or sodium thiopental.

ADCRR Director David Shinn wrote in a letter to Arizona Attorney General Mark Brnovich on March 5 that the department “is prepared to perform its legal obligation and commence the execution process as part of the legally imposed sentence” and has been searching for sources of the drugs needed to administer the executions.

However, in the Attorney General Office’s response, chief of staff Joseph Kanefield noted that ADCRR was “finalizing outstanding details” and would determine by March 16 whether further steps were required.

ADCRR did not give a specific answer as to whether it had determined its readiness by that date.

“The Department continues to work closely with the AZ Attorney General’s Office to bring justice for the victims’ families,” its spokesperson said in a March 17 email.

The department has secured pentobarbital, the same drug the federal government has used since resuming executions in 2020. A U.S. Court of Appeals for the 9th Circuit ruled in 2019 that death row inmates do not have the right to know additional information about execution drugs beyond certain information about the chemical composition and dosages of the drugs, as well as the procedures for administering them.

“Pentobarbital has been administered successfully for many years throughout the State and federal correctional systems,” ADCRR spokesman Bill Lamoreaux said in an email.

Baich said the source of the drugs is still a concern.

“The Controlled Substances Act requires that a physician needs to write a prescription for a patient to get a compounded drug, and we don’t know if the department is following federal law on that,” Baich said.

The department has had other problems in the past with procuring execution drugs legally. An attempt to import sodium thiopental from India in 2015 ended with Customs and Border Protection seizing the drugs at Sky Harbor International Airport.

State begins 1st execution since 2014

Arizona’s first execution in eight years is set for May 11, following the Arizona Supreme Court issuing an execution warrant for death row inmate Clarence Dixon on Tuesday.

The warrant comes about a year after Arizona Attorney General Mark Brnovich notified the court that he intended to seek the death penalty for two of the approximately 20 death row inmates who have exhausted all their appeals.

“I made a promise to Arizona voters that people who commit the ultimate crime get the ultimate punishment,” Brnovich said in a prepared statement. “I will continue to fight every day for justice for victims, their families, and our communities.”

In 2008, Dixon was convicted and sentenced to death for the 1978 killing of 21-year-old Arizona State University student Deana Bowdoin. Because the crime was committed before Nov. 23, 1992, Dixon has a choice between lethal injection or lethal gas and must notify the Arizona Department of Corrections, Rehabilitation & Reentry of the method 20 days before the execution. If he doesn’t choose, he will be killed by lethal injection.

Jennifer Moreno, an attorney for Dixon, said in a prepared statement that Arizona has “a history of problematic executions,” noting the state’s most recent execution of Joseph Wood as an example. During his 2014 execution, Wood snorted and gasped for air for nearly two hours as he was given 15 doses of the sedative midazolam and hydromorphone, a painkiller.

Moreno said that the state has not shown that the drugs it will use in the execution won’t be expired.

“Under these circumstances, the execution of Mr. Dixon — a severely mentally ill, visually disabled, and physically frail member of the Navajo Nation — is unconscionable,” Moreno said.

Brnovich’s first push for the two executions was delayed in July 2021 when the state Supreme Court denied his request for a new, shorter briefing schedule after the compounding pharmacist told ADCRR that the shelf-life of the compounded lethal drug was 45 days instead of 90. The justices said the motions could be renewed “after specialized testing to determine a beyond-use date for compounded doses of the drug.”

In January, Brnovich renewed his push for the executions, requesting new briefing schedules for the two executions and saying that testing showed the pentobarbital to be used in the executions has a beyond-use date of at least 90 days.

According to Dixon’s attorneys, Dixon has long struggled with severe mental illness, which, along with his physical ailments, have worsened on death row. They said he is blind, “extremely frail” and has numerous “debilitating health conditions.” He still has paranoid schizophrenia and sometimes has episodes where he “loses connection to reality.”

The state is also pursuing the death penalty for Frank Atwood. Atwood was convicted of the 1987 murder and kidnapping of an 8-year-old child and sentenced to death.

Supreme Court refuses to extend death warrant

The Arizona Supreme Court denied the Maricopa County Attorney and the crime victim’s motion to extend the execution warrant for Aaron Gunches.

The order from the high court coupled with the expiration of Gunches’ warrant at 11:59 p.m. tonight left the Maricopa County Superior Court judge overseeing a separate case filed by the county attorney and the crime victims questioning “what can this court do about it?”

On Friday, the county attorney and the victims’ attorneys filed a motion for an extension of Gunches’ execution warrant with the Arizona Supreme Court and a complaint in Maricopa County Superior Court.

The complaint asked for orders to compel Gov. Katie Hobbs and Arizona Department of Corrections Rehabilitation and Reentry Ryan Thornell to carry out Gunches’ sentence and to prohibit Hobbs from granting a “de facto reprieve” by continuing the pause on executions.

In a hearing today, Judge Frank Moskowitz pressed attorneys for the victims and the Maricopa County Attorney’s Office for relief that did not hinge on the warrant for Gunches.

Ryan Green, attorney for Brittany Kay, daughter of Gunches’ victim Ted Price, pushed for an evidentiary hearing on whether the Arizona Department of Corrections Rehabilitation and Reentry was truly unequipped and unprepared to carry out the execution.

The factual dispute arose from conflicting declarations submitted by Thornell and former deputy director Frank Strada in briefings at the Arizona Supreme Court.

Thornell said he could not locate information on execution teams, the pharmacist supplying the drugs and used the lack of documentation as basis to say the department could not carry out an execution by April 6.

In a press conference Wednesday, Maricopa County Attorney Rachel Mitchell said Strada “paints a very different picture,” and contradicts Thornell’s assertion that he could not locate any documentation on the most recent executions, or the source of the execution drugs.

Strada said he left the documentation on the premises when he left office in January and named employees still with the department who would be able to track it down.

Green said, “if it’s not true that the department of corrections can’t do an execution, it lays the groundwork for us to seek that the laws be faithfully executed. He also said they could seek relief enjoining the governor and ADCRR from ceasing preparations for executions.

“How do I tell them they need to prepare for a death penalty without a warrant?” Moskowitz said.

He also noted the court does not hold evidentiary hearings “just to find things out,” and said his decision would ultimately only be advisory.

“I hear a lot of ‘whens’ and ‘ifs’” he said. “I don’t want to litigate a case on whens and ifs. I’m only supposed to litigate cases based on here and now.”

Attorney for Thornell, Alexander Samuels, said the fact that Gunches’ warrant had lapsed made his case “look exactly like” other death row inmates’ cases after midnight tonight.

Samuels also said the lapse of the warrant and pause on executions in no way meant a warrant would not be sought at some point. He did note the circumstances of the case, citing the sweeping changes in administration across the board.

Hobbs counsel Bo Dul made a statement expressing empathy for the victims but said they could not allow the “unprecedented encroachment” on executive powers and duties to go forward.

Attorneys for the victims and county attorney then pivoted to their claim that Hobbs granted a “de facto reprieve” by pausing executions.

Moskowitz said that was the only conceivable claim with which he could rule on, but he said he did not have nearly enough in front of him.

He ordered briefing from all parties on the justiciability and the relief and rulings the court could provide.

Moskowitz also said he was “skeptical” and said he was tempted to dismiss the case immediately. But because it was a “serious matter,” with “constitutional concerns,” he set a briefing schedule for the parties, with the first brief due from the county and the victims on April 20, and responses from the state and Gunches due by May 11. He also set oral argument for June 23.

The Breakdown: You’re killing me, session

Arizona state Rep. Eddie Farnsworth, left, R-Gilbert, and sponsor of the anti-human trafficking House Bill 2454, talks with Rep. David Stevens, R-Sierra Vista, at the Arizona Capitol on Tuesday, April 15, 2014, in Phoenix. The bill was unanimously passed by the Senate, and toughens penalties for trafficking adults and targets businesses such as massage parlors and escort services that advertise online, and increases the minimum penalties for a child-prostitution conviction to 10 years to 24 years in prison. (AP Photo/Ross D. Franklin) — Sen. Eddie Farnsworth (AP Photo/Ross D. Franklin)

The Legislature is contemplating a bill that would diminish the death penalty law for the first time since 1973. And you might be surprised to hear who’s pushing it.

Other bills have not been so lucky as many have been left to die silently without ever even receiving a hearing.

And in case you missed it, Arizona’s water future was laid on the line early last week. What could that mean for ongoing negotiations?

Don’t forget to subscribe to The Breakdown on iTunes and Stitcher.

Music in this episode included “Creative Minds,” “Funky Element” and “Energy” by Bensound.

U.S. Supreme Court to hear Arizona death penalty case

The U.S. Supreme Court has agreed to decide whether someone convicted decades ago of two murders will get a chance now to present evidence of his abusive childhood to a jury.

In a brief order, the justices said they will decide whether James McKinney is entitled to be resentenced under the law as it existed in 1991 when he committed the burglaries and murders, or the law as it exists now.

The difference could be a matter of life and death.

A federal appeals court already has ruled that McKinney should have been able to argue that what happened to him as a child – described by the trial judge as “horrific” and “beyond the comprehension and understanding of most people” – should have been considered at that time. But the trial judge did not, saying state law at that time allowed him to weigh only specific factors in deciding whether to spare McKinney’s life.

That limit was declared unconstitutional by the federal appellate court, ruling McKinney was entitled to be resentenced.

What happened, though, is that prosecutors, rather than send the case back to the trial court, simply asked the Arizona Supreme Court to review the record. And the state’s high court concluded that the death sentence was merited, even after looking at the additional information.

Attorney Neal Katyal, who is representing McKinney, told the U.S. Supreme Court that was wrong, and not only for the failure to send the case back to the trial court. He also pointed out that in 2002 the justices voided another Arizona law, one that allowed judges and not juries to determine whether a death sentence should be imposed.

With Monday’s order, the nation’s high court will determine whether McKinney does get a new sentencing hearing to try to escape the death penalty, and whether he’s entitled to make his case to a jury even though that wasn’t a requirement at the time of his original trial or appeal.

What the justices rule is likely to have implications beyond this case.

It would set the precedent for other old cases where a defendant is trying to get a federal court to review the propriety of a sentence. That includes co-defendant and half-brother Charles Hedlund whose own public defender is seeking Supreme Court review.

And it comes as courts in different states have reached disparate conclusions.

In documents filed by Assistant Attorney General David Cole, McKinney and Hedlund committed a series of five residential burglaries in less than a month in the Phoenix area.

The two at issue are the fourth and fifth, both in Chandler.

In No. 4 they broke into the home of Christine Mertens, beating and stabbing her, with McKinney ultimately holding her face down to the floor and shooting her in the back of the head. They escaped with about $120 in cash.

In the fifth they broke into the home of Jim McClain, with Hedlund shooting him in the head while he was sleeping. They took his watch, three hand guns and his car.

Both were sentenced to death

Katyal told the justices there was massive evidence of post-traumatic stress disorder based on McKinney’s childhood.

McKinney’s aunt said he, Hedlund and McKinney’s two sisters shared a room where there were no sheets on the bed, with dogs, cats, snakes, a goat and a monkey kept in the room where they “regularly defecated and urinated.” There also was evidence of extensive physical, verbal and emotional abuse, including a beating with a garden hose.

At his sentencing before a trial judge, a psychologist testified McKinney had PTSD “resulting from the horrific childhood” he had suffered, leaving him “susceptible to manipulation and exploitation.”

The trial judge acknowledged the abuse but said that, under Arizona law at that time, he could not consider any of that in deciding whether leniency was appropriate.

That led to the first appeal and the ruling by the Arizona Supreme Court affirming the sentence – the procedure that Katyal now wants the U.S. Supreme Court to rule was improper.

Ryan Anderson, a spokesman for the Attorney General’s Office, said his agency believes the Arizona Supreme Court did nothing wrong when it affirmed McKinney’s sentence without sending the case back to a trial court.

“We feel confident in our arguments and believe we will ultimately prevail at the federal level as well,” he said.

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Issue: death penalty