PHOENIX (CN) — The state of Arizona Monday agreed to use a new batch of lethal injection drugs to execute death row inmate Clarence Dixon, after his lawyers argued that the drugs the state had intended to use had expired.
The agreement came after a hearing in federal court Monday morning, where Dixon's attorneys argued the batch of drugs set to be used to kill him was in violation of a 2017 settlement agreement. They claimed the state's pentobarbital was expired, had failed certain tests and could possibly cause their client to experience severe pain during his execution, which is set for Wednesday.
In 2008, Dixon was convicted of murder and sentenced to death for the 1978 killing of 21-year-old Arizona State University student Deana Bowdoin. The case was dormant for 23 years before cold-case detective Tom Magazzeni investigated the matter and matched Dixon’s DNA to a national database.
Last week, Pinal County Superior Court Judge Robert Olson declined to stay Dixon's execution based on claims he was incompetent due to schizophrenia. In 1977, Dixon was arrested in Tempe for assaulting a 15-year-old with a metal pipe, causing a severe cut to the top of her head. Then-Maricopa County Superior Court Judge Sandra Day O’Connor, who would later serve on the U.S. Supreme Court, found Dixon not guilty by reason of insanity and ordered the Maricopa County Attorney’s Office to commence civil commitment proceedings to admit Dixon to the Arizona State Hospital. There was a delay and two days later, Dixon raped and murdered Bowdoin.
The settlement agreement discussed in Monday's hearing stems from a federal lawsuit filed in 2014 by death row inmates who claimed the state’s execution procedures violated their constitutional rights to be free from cruel and unusual punishment. One of the plaintiffs was convicted murderer Joseph Wood, whose execution in 2014 took almost two hours.
“What we do know is that the drugs shouldn't even get to this point, they expired in mid-April,” said Jennifer Moreno, an attorney for Dixon. “So, without a proper test that extends it those drugs should have been disposed of.”
Jeffrey Sparks from the state’s attorney general office argued that language in the settlement agreement affords Arizona some concession based on its “un-use date,” which is different than drug expiration dates.
“The un-use date for the drugs intended to be used this week is in August of this year,” said Sparks “[The] Department of Corrections is fully in compliance with that settlement agreement.”
Moreno also claimed that pentobarbital failed benchmarks during drug stability testing.
The pH limit standard set forth by United States Pharmacopoeia, a nonprofit that recommends drug administration standards, is 10.5. Moreno said the pentobarbital tested above that threshold at 10.6, and she argued that means its possible the drug would cause severe pain.
Sparks didn’t see an issue with the drug exceeding the pH standard.
“I think in order to prove an Eighth Amendment claim here, which you know, for example, under Glossip, requires a substantial risk of severe pain,” Sparks said.
Sparks referenced the U.S. Supreme Court cases Baze v. Rees and Glossip v. Gross, often referred to as the Baze-Glossip test, which mandates a state to provide a method of execution that does not cause severe pain under the Eighth Amendment. The high court found some pain and risk of heightened pain is inherently involved in any execution.
“However, defendants don't see any specific statement in either of those reports ever saying specifically that the pH result here, the 10.6, is likely to cause harm,” Sparks said about expert pharmacological reports submitted.
Presiding U.S. District Court Judge Diane Humetewa reminded Moreno that the burden of proof was on her to show the 2017 settlement agreement created a right for her client.
“We're simply asking that they comply with both what they have written down and what they have represented to courts that they are required to do,” Moreno said.
Moreno told the judge that if Arizona could provide proof that an alternative cocktail could pass the testing requirements, it would resolve their concerns in this case.
Later in the day, the court reconvened and announced an agreement by both parties mandating the use of new drug compounds during Dixon's execution. The new agreement seemingly sets Dixon’s fate, as the Arizona Supreme Court Monday also denied a last-minute effort to stay his execution.
Leslie Bowdoin James, the sister of the victim, was in court one final time before the state will administer her justice.
In April, she remembered her sister before the state’s clemency board.
“What I’m most grateful for is that I had three months with her, in one of her last summers, and we rode the trains through Europe,” said James before the board.
Dixon will be the first prisoner executed in Arizona since 2014.
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