Fired Federal Judge Raises Serious Concerns About Arizona’s Lethal Injection Protocol

Retired fed­er­al mag­is­trate Judge David Duncan (pic­tured), who was hired and then abrupt­ly fired by Arizona Governor Katie Hobbs to review the state’s exe­cu­tion pro­to­col, con­tin­ues to raise sig­nif­i­cant con­cerns about the state’s lethal injec­tion pro­to­col. In an inter­view with ABC15, Judge Duncan high­light­ed issues with the chain of com­mand for lethal injec­tion drugs, trans­paren­cy, and the state doc­u­men­ta­tion process. ​“It’s shock­ing irony that one of my tasks was trans­paren­cy — [and] on the eve of pro­duc­ing the report, [Gov. Hobbs] shut it down,” Judge Duncan told ABC15. Attorney General Kris Mayes said that the state has ​“pro­cured the drugs nec­es­sary to car­ry out exe­cu­tions in Arizona” and intends on exe­cut­ing Aaron Gunches in March 2025, pend­ing the state Supreme Court’s approval. 

Gov. Hobbs dis­missed Judge Duncan’s con­cerns about the state’s inter­nal review, say­ing, ​“I feel con­fi­dent in the team at Corrections,” and crit­i­cized Judge Duncan as not ​“up to the task.” In a state­ment from the Arizona Department of Corrections, Rehabilitation & Reentry (ADCRR), offi­cials main­tain that the depart­ment ​“is oper­a­tional­ly pre­pared to car­ry out an exe­cu­tion and remains con­fi­dent in both the quan­ti­ty and qual­i­ty of its pen­to­bar­bi­tal sup­ply.” Questions have been raised about that sup­ply. Judge Duncan said when he request­ed to observe an exe­cu­tion train­ing, the reac­tion at the Department of Corrections was ​“absolute­ly not.” His con­cerns about the state’s lethal injec­tion pro­to­cols were such that Judge Duncan was pre­pared to sug­gest the state con­sid­er aban­don­ing lethal injec­tion in favor of using anoth­er alter­na­tive, such as the fir­ing squad, for exe­cu­tions. He also sug­gest­ed that ​“polit­i­cal pres­sures changed” towards the end of his review, with Gov. Hobbs dis­miss­ing his con­cerns by claim­ing he was ​“expand­ing his report far beyond what the exec­u­tive order asked him to do.”

In a let­ter from the ADCRR Deputy Director to Gov. Hobbs’ office, con­cerns were raised about Judge Duncan’s review process, and specif­i­cal­ly whether the judge would keep the iden­ti­ties of those involved in the exe­cu­tion process con­fi­den­tial. In the inter­view, he direct­ly addressed this accu­sa­tion, stat­ing, ​“it is ille­gal to reveal the iden­ti­ties of exe­cu­tion­ers in the state of Arizona. I’m a retired judge. It’s impos­si­ble to con­ceive that I would break the law.” Judge Duncan explained that his ques­tions and inter­est were an attempt to ver­i­fy incon­sis­tent infor­ma­tion he received from var­i­ous sources. He was shocked by his ter­mi­na­tion, say­ing ​“I thought that we were on pret­ty clear terms.” Judge Duncan also raised ques­tions about the finan­cial aspects of exe­cu­tions, specif­i­cal­ly inquir­ing about 1099s tax forms issued for those car­ry­ing out exe­cu­tions. He found gross incom­pe­tence by prison staff, cit­ing an exam­ple of exe­cu­tion team mem­bers research­ing cor­rect drug dosages on Wikipedia the night before an exe­cu­tion, as well as secret $20,000 cash pay­ments to prison offi­cials involved in three botched exe­cu­tions in 2022.

Mr. Gunches, who has con­sis­tent­ly sought his own exe­cu­tion, has waived appeals and legal rights at vir­tu­al­ly every stage of pro­ceed­ings. In 2022, Mr. Gunches asked the Arizona Supreme Court to issue a war­rant for his exe­cu­tion, but at the time, Gov. Hobbs said that the state was not pre­pared to con­duct an exe­cu­tion due to insuf­fi­cient staff train­ing. Mr. Gunches sub­se­quent­ly with­drew his request for an exe­cu­tion date, say­ing the state’s three ​“botched” exe­cu­tions in 2022 were ​“car­ried out in a man­ner that amounts to tor­ture,” and asked to be trans­ferred to Texas and exe­cut­ed there. This unprece­dent­ed request was ulti­mate­ly denied. If Mr. Gunches’ most recent request for an exe­cu­tion date is grant­ed, he would be the 167^th per­son to ​“vol­un­teer” for exe­cu­tions in the mod­ern death penal­ty era despite seri­ous con­cerns about men­tal health, com­pe­ten­cy, and due process in near­ly every case.

Arizona has a prob­lem­at­ic his­to­ry of botched exe­cu­tions and has pro­fessed dif­fi­cul­ty legal­ly obtain­ing exe­cu­tion drugs. In 2022, the state resumed exe­cu­tions after an eight-year pause, which was spurred by the ​“botched” exe­cu­tion of Joseph Wood in 2014. With efforts to resume exe­cu­tions in 2020, Arizona spent $1.5 mil­lion to obtain 4 – 8 ​“unla­beled” jars of pen­to­bar­bi­tal. In 2015, Arizona spent $27,000 to pro­cure 1,000 vials of sodi­um thiopen­tal to use in exe­cu­tions from a sup­pli­er in India, after domes­tic pro­duc­ers would not sell the drug for exe­cu­tions. The drugs were seized by the US Customs and Border Protection in Phoenix after the Federal Food and Drug Administration warned ADCRR that the pur­chase was illegal.