A federal judge is considering postponing the execution of an Arizona prisoner who argues the state’s death penalty proceedings would violate his rights by subjecting him to unimaginable pain.
Lawyers for Frank Atwood have said their client would suffer excruciating pain if he was strapped to the execution stretcher while lying on his back, as he suffers from a degenerative spinal condition which left him left in a wheelchair. Atwood is set to receive a lethal injection on Wednesday for his murder conviction in the 1984 murder of 8-year-old Vicki Lynne Hoskinson.
In a hearing on Friday, Atwood’s attorneys questioned whether the compound pentobarbital to be used in the execution met pharmaceutical standards and whether the state had met the requirement that the expiration date of the medicine falls after the date of execution. They also challenge Arizona’s protocol for gas chamber executions.
Prosecutors say Atwood is trying to postpone his execution indefinitely through legal maneuvering.
Judge Michael Liburdi said he would likely issue an order over the weekend.
Two weeks ago, Atwood refused to choose between lethal injection or the gas chamber, leaving him to be put to death by lethal injection, the state’s default method of execution.
Even though he didn’t choose the gas chamber, he still challenges the state’s lethal gas protocol that calls for the use of hydrogen cyanide gas, which has been used in some past U.S. executions and by the Nazis to kill 865,000 Jews at Auschwitz concentration camp. only. His lawyers say hydrogen cyanide gas is unconstitutional and produces excruciating levels of pain during executions.
Without explicitly saying Atwood wants to die near the gas chamber, his attorneys argue he has a constitutional right to choose between methods of execution and said the state should replace its deadly gas with hydrogen cyanide. gas by nitrogen gas, because nitrogen would produce painless deaths. .
“They could do it tomorrow,” Joseph Perkovich, one of Atwood’s attorneys, said of the nitrogen gas.
Arizona, California, Missouri, and Wyoming are the only states with decades-old lethal gas enforcement laws still in effect. Arizona, which carried out the last gas chamber execution in the United States more than two decades ago, is the only state to still have a functioning gas chamber.
In recent years, Oklahoma, Mississippi and Alabama have passed laws allowing executions with nitrogen gas, at least in certain circumstances, although experts say this has never been done and that no state has established a protocol that would allow this.
Atwood’s attorneys also said Arizona could undertake executions by firing squad — a method of execution not used in the state.
Prosecutors say Atwood’s challenge is not intended to minimize the pain he will feel when he is put to death, but rather to delay the execution indefinitely by asking for alternative methods of execution that he knows the state is unable to deliver without amending its enforcement protocol and the state constitution.
Prosecutors say Atwood can relieve pain from lying on his back by propping himself up with a pillow and using the recline feature on the execution table. They say he will be allowed to continue taking painkillers and given a mild sedative before his execution.
Arizona prosecutors also said nitrogen gas was not tested during the executions and Atwood’s attorneys failed to establish that nitrogen gas or a firing squad would reduce the risk of severe pain.
Jeffrey Sparks, a state attorney, argued that Atwood’s legal claims regarding the deadly gas were moot, saying the execution would be by lethal injection.
Authorities said Atwood kidnapped Hoskinson, whose remains were discovered in the desert northwest of Tucson nearly seven months after he disappeared. Experts could not determine the cause of death from the recovered remains, according to court records.
Atwood maintains that he is innocent.
Last week, a federal appeals court denied a request by Atwood’s lawyers to present new arguments in an attempt to overturn his death sentence.
Atwood’s attorneys said they uncovered an FBI memo last summer describing an anonymous caller claiming to have seen the girl in a vehicle not associated with Atwood, but which may be linked to a woman. A panel of the 9th U.S. Circuit Court of Appeals said it could not conclude that disclosure of the unreported anonymous call would have had any effect on Atwood’s trial and conviction.
On Friday, Atwood’s attorneys also asked the Arizona Supreme Court to stay his execution, making similar arguments over what they said was new evidence of his innocence regarding the woman.
Until last month, Arizona went nearly eight years without an execution.
The hiatus was attributed to the difficulty of obtaining lethal injection drugs as manufacturers refuse to supply them and to problems during the July 2014 execution of Joseph Wood, who received 15 doses of a combination of two drugs for almost two hours. Wood sniffled several times and gasped before dying. His lawyer said the execution was botched.
The hiatus ended May 11 when the state executed Clarence Dixon for his murder conviction in the 1978 murder of Deana Bowdoin, a 21-year-old student at Arizona State University.