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 azcen​tral​.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.”