PHOENIX (CN) — After hearing arguments and expert testimony Friday, a federal judge in Arizona must now decide if he will delay the execution of death row inmate Frank Atwood.
Atwood was sentenced to death in 1987 for the murder of 8-year-old Vicki Lynne Hoskinson.
He initially requested to be executed by nitrogen gas but that request was declined because the gas of preference in the state is cyanide gas. Instead, Atwood chose to be put to death by lethal injection because cyanide gas purportedly causes agonizing pain.
Atwood’s attorneys, Joseph Perkovich and David Lane, argued the batch of drugs set to be used to kill him violates a 2017 settlement agreement. They claim the state’s pentobarbital is expired, has failed specific tests, and could cause their client to experience severe pain during his execution, which is set for Wednesday.
The settlement agreement discussed in Friday’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 “botched” execution in 2014 took almost two hours.
James Ruble, an associate professor at the University of Utah College of Pharmacy, was called to provide expert testimony for Atwood’s team. As a former licensed attorney, Ruble also teaches at Utah’s College of Law.
In his testimony, Ruble stated that according to the evidence, the drug slated to be used in Atwood’s execution does not meet standards set by medical consensus. According to Ruble, the pH limit standard set by United States Pharmacopoeia (USP), a nonprofit that recommends drug administration standards, is 10.5. Ruble said the pentobarbital tested above that threshold at 10.6.
“Do you believe that if the pH is not within the limits set by USP, it could lead to excruciating pain?” asked David Lane, an attorney for Atwood. Ruble answered yes.
Additionally, Ruble testified that there was a lack of transparency in the qualification of the state pharmacist handling the drugs and a lack of quantitative data points to illustrate the drug’s continued stability.
According to Atwood’s team, the last test the state conducted on the batch was on April 13. Dixon’s execution is slated for Wednesday, close to two months after that test date.
“[Decay] is nonlinear, it doesn’t go in a linear fashion,” Ruble said, about the tested pentobarbital. “It goes through an exponential decay fashion.”
In May, Arizona agreed to mix a new batch of pentobarbital for Clarence Dixon’s execution when his attorneys made a similar argument revolving around the stability and safety of the drug. The agreement alleviated expiration concerns argued by Dixon’s attorneys.
Perkovich also contends that Atwood’s physical condition cannot accommodate the state’s requirement to lay flat on an execution table, as required and illustrated by the state in Dixon’s execution. This is primarily due to a degenerative spinal condition that causes him severe pain when he lays down flat.
According to Atwood’s attorneys, he has skeletal deformity throughout his spine, which causes severe pain due to a narrowing of his spinal openings. The narrowing causes the nerves to compress, which manifests pain in several ways for Atwood.
Jeffrey Sparks from the state’s attorney general office didn’t see an issue with the prisoner’s discomfort or the drug exceeding the nonprofit’s pH recommendation.
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 provide a method of execution that does not cause severe pain under the Eighth Amendment.
“The Supreme Court has acknowledged the Eighth Amendment doesn’t require painless execution,” he said. “Mr. Atwood’s back conditions means he’s always at some level of pain, and the Department of Corrections has taken measures to alleviate that as much as possible, under the execution procedures.”
The Department of Corrections will provide comfort pillows on the execution table for Atwood to elevate his legs and back during the execution. In Glossip, the high court found some pain and risk of heightened pain is inherently involved in any execution.
Perkovich argued that his interpretation was a fallacy.
“That’s a misreading of Glossip,” Perkovich said. “Is the state knowingly inflicting pain on this person and refusing to implement [a] regrettably implemented alternative?”
Perkovich later told the judge in closing arguments that if Arizona could provide an alternative gas that could provide nearly zero pain, it would relieve his client’s concerns.
“When people die from nitrogen hypoxia, they’re not aware that they’re dying,” he said. “They [just] lose consciousness and die. We could go to the nitrogen supply shop over the weekend and get canisters. I mean, many kitchens in downtown Phoenix have said canisters we’re talking about. It’s not like procuring sodium cyanide capsules.”
U.S. District Judge Michael Liburdi cut the hearing short due to staffing constraints, which led to the tabling of a witness' testimony. Liburdi said he’d analyze the witness’ declaration included in the filings. Perkovich pleaded for a Saturday continuance, but the judge denied it due to staffing concerns and a personal appeal.
“Well, since it’s my daughter’s sixth birthday party tomorrow, that is not going to happen,” Liburdi said.
The Arizona Constitution was amended in 1992 to eliminate lethal gas as a method of execution. Arizona prisoners, like Atwood, condemned to death before 1992 have the option to choose between death by lethal injection or lethal gas. In May, clemency was unanimously rejected by the governor’s executive clemency board.
Atwood is slated to become the second prisoner in Arizona executed by the state this year.
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