Federal Courts Deny Arizona Prisoner’s Lethal-Injection Challenge and Request to Present New Evidence of Innocence

Federal courts denied relief in two law­suits brought by Arizona death-row pris­on­er Frank Atwood, clear­ing the path for his exe­cu­tion on June 8, 2022. Atwood had sought an oppor­tu­ni­ty to present new evi­dence of his inno­cence, but the U.S. Court of Appeals for the Ninth Circuit reject­ed that peti­tion. The appel­late court also affirmed the Arizona fed­er­al dis­trict court’s denial of Atwood’s chal­lenge to the state’s lethal-injec­tion pro­ce­dure, which Atwood said would cause him excru­ci­at­ing pain due to a debil­i­tat­ing spinal condition.

On May 27, 2022, the U.S. Court of Appeals for the Ninth Circuit denied a request from Atwood’s lawyers to allow a fed­er­al dis­trict court to con­sid­er a sec­ond or suc­ces­sive habeas peti­tion pre­sent­ing three claims: 1) that the aggra­vat­ing fac­tor that made him eli­gi­ble for a death sen­tence was uncon­sti­tu­tion­al­ly applied, 2) that the state ille­gal­ly with­held excul­pa­to­ry evi­dence, and 3) that new evi­dence sup­ports his claim of inno­cence. Atwood has main­tained his inno­cence in the 1984 kid­nap­ping and mur­der of Vicki Hoskinson. In the sum­mer of 2021, his lawyers uncov­ered an FBI memo about an anony­mous call the bureau received after Hoskinson’s dis­ap­pear­ance but before her body was found, report­ing that the vic­tim was seen in a vehi­cle con­nect­ed not to Atwood, but to the next-door neigh­bor of an alternative suspect. 

The Ninth Circuit ruled that, because oth­er evi­dence relat­ed to the alter­na­tive sus­pect was already known at the time of Atwood’s tri­al, the anony­mous phone call would not have made a dif­fer­ence. Because the court did not think the evi­dence would have changed the out­come of Atwood’s tri­al, it also denied him the oppor­tu­ni­ty to pur­sue the claim that the state had vio­lat­ed his con­sti­tu­tion­al rights by with­hold­ing it. His first claim, regard­ing the inap­plic­a­bil­i­ty of the sole aggra­vat­ing fac­tor used to sen­tence him to death, was reject­ed on procedural grounds.

In a sep­a­rate rul­ing, Judge Michael Liburdi of the U.S. District Court for the District of Arizona denied Atwood’s request to enjoin his exe­cu­tion on the grounds that the state’s exe­cu­tion meth­ods would be uncon­sti­tu­tion­al as applied to him. Atwood had argued that his exe­cu­tion would vio­late the Eighth and Fourteenth Amendments because of his severe spinal con­di­tion, Arizona’s fail­ure to fol­low its pro­to­col on prepar­ing and test­ing com­pound­ed pen­to­bar­bi­tal, and his forced choice between the gas cham­ber and a tor­tur­ous­ly painful lethal injec­tion. On June 7, the Ninth Circuit Court of Appeals affirmed the denial of Atwood’s pre­lim­i­nary injunc­tion motion and reject­ed his relat­ed motions to stay his execution.

Atwood suf­fers from a degen­er­a­tive spinal con­di­tion and needs to be pushed in a wheel­chair. He argued that because of his spinal con­di­tion he would be in unimag­in­able pain dur­ing the time his is strapped to the gur­ney for lethal injec­tion, a process that has tak­en Arizona an aver­age of 54.4 min­utes. Judge Liburdi said that the state can make accom­mo­da­tions, includ­ing using a med­ical wedge and tilt­ing the gur­ney, that ​“will min­i­mize the pain Plaintiff expe­ri­ences when he lies on his back.” He said that the con­sti­tu­tion ​“does not require a pain-free execution.” 

Atwood also chal­lenged Arizona’s fail­ure to abide by its exe­cu­tion pro­to­col and the set­tle­ment agree­ment reached with death row pris­on­ers in pri­or lethal injec­tion lit­i­ga­tion. He argued that the state failed to fol­low stan­dard pro­ce­dures for com­pound­ing the pen­to­bar­bi­tal it plans to use to exe­cute him and arti­fi­cial­ly extend­ed the expi­ra­tion dates on the com­pound­ed drug. The dis­trict court denied this claim, find­ing that Atwood was unlike­ly to suc­ceed in prov­ing that the state’s com­pound­ing and test­ing of the drugs vio­lat­ed its pro­to­col and the settlement agreement.

Atwood also argued that use of the gas cham­ber was uncon­sti­tu­tion­al, but Judge Liburdi ruled that Atwood lacked legal stand­ing to chal­lenge this method of exe­cu­tion. Atwood refused to choose between lethal injec­tion and the gas cham­ber, leav­ing him with the default method of lethal injec­tion. Arizona recent­ly refur­bished its gas cham­ber and pur­chased ingre­di­ents to per­form exe­cu­tions with hydro­gen cyanide gas, the same sub­stance used by Nazis to mur­der more than one mil­lion peo­ple dur­ing the Holocaust. Atwood’s attor­neys said he should be giv­en the choice of con­sti­tu­tion­al exe­cu­tion meth­ods, and sug­gest­ed the state switch to nitro­gen gas, which they argue would be more accept­able than cyanide gas.

Atwood’s request to have a spir­i­tu­al advi­sor per­form reli­gious rites and accom­pa­ny him to the exe­cu­tion cham­ber was grant­ed by the fed­er­al dis­trict court. On June 6, the court grant­ed a pre­lim­i­nary injunc­tion that would allow Atwood’s reli­gious advi­sor to per­form reli­gious rites before the exe­cu­tion and pray over him and touch him dur­ing the execution.