Arizona Violated Court Order to Allow Media to Witness Execution, Lawyer for Newspapers Says

Arizona violated state law, state corrections policies, and a court order by denying a reporter from the state’s largest daily circulation newspaper access to view the May 11 execution of Clarence Dixon and by blocking witnesses’ views of a portion of the execution process, a lawyer for the newspaper has charged.

In a May 20, 2022 letter to Arizona Department of Corrections (ADOC) Director David Shinn and Arizona Governor Doug Ducey, David Bodney, attorney for Phoenix Newspapers, Inc. (PNI), which publishes The Republic and azcentral.com, wrote that Arizona had retaliated against the paper for its critical coverage of the state’s death-penalty practices by denying a reporter permission to witness Arizona’s first execution since 2014. ADOC improperly restricted what the reporters selected as media witnesses were permitted to see and hear during the execution, the letter said.

“[T]he U.S. District Court entered a permanent injunction against ADOC requiring that it ‘allow execution witnesses to view the entirety of the execution, including each administration of drugs,’” Bodney wrote. “Based on the evidence at hand, PNI believes ADOC violated the Permanent Injunction, legal precedent on point and its own policies during the course of the Dixon execution.”

State guidelines authorize the governor to invite up to five media witnesses to view an execution, who then conduct a press briefing after the execution to inform other reporters and the public about the execution. The guidelines specify that those witnesses include “representatives from media-print, television/cable, radio, and the local market where the crime occurred.” Ducey, however, invited only three members of the media to view Dixon’s execution and denied requests by The Republic, The Phoenix News Times, and KOLD in Tucson to witness the execution.

“The Department’s refusal to permit a journalist from Arizona’s largest-circulation newspaper to witness the execution as a media representative raises serious concerns,” Bodney wrote.

Bodney’s letter also charged that Ducey denied The Republic’s request in retaliation for its coverage of the state’s death penalty, stating that Governor Ducey’s Chief of Staff told The Republic’s Executive Editor Greg Burton, “If The Republic did not print ‘false information,’ it might be treated differently.” Neither Ducey’s office nor ADOC provided any examples of inaccuracies in The Republic’s reporting.

“[G]iven The Republic’s long-standing, independent scrutiny of the Department’s approach to capital punishment, and the paper’s long-pending but unfulfilled public records requests for information that would shed light on other aspects ADOC’s inmate policies, the Department’s denials of The Republic’s repeated requests to witness these executions smacks of arbitrary, retributive conduct by ADOC,” Bodney wrote.

Dixon’s execution spotlighted the critical role media witnesses play, when reporters’ accounts of the execution led experts to conclude it had been botched. Fox News media witness Troy Hayden reported that the execution team had trouble inserting the IV line and that Dixon appeared to be in pain and grimaced during the insertion process. He said that after about 25 minutes, the execution team cut into Dixon’s groin to place the IV line there.

Burton said “[t]his is about more than just access for The Republic. This is about having as many members of the press as possible conduct oversight on behalf of the public of the ultimate act of any government; taking someone’s life. There is no undoing a mistake.”

Witnesses to Dixon’s execution also reported that their ability to fully see and hear the execution had been impaired. Paul Davenport, a reporter for the Associated Press, said that he “had a hard time actually discerning what was happening and in what order.” Dixon’s lawyer, Amanda Bass, stated: “I entered the viewing room at 9:27 AM. At 9:32 AM the curtains to the execution chamber opened. Clarence was strapped to the gurney.” Under the court order, Bodney said, the right to media access to the execution “extends from the moment the condemned person enters the execution chamber.”

Ducey also denied The Republic’s request for its reporter, Jimmy Jenkins, to witness the execution of Frank Atwood, scheduled for June 8, 2022. Atwood subsequently invited Jenkins to attend as one of the witnesses allotted for the prisoner.

The Republic’s letter implores the ADOC “to ensure that the forthcoming execution of Mr. Atwood comports with the clear mandates outlined by the courts, ADOC’s own policies and the rights secured by the Federal and Arizona Constitutions.”