PHOENIX – The scheduled execution of an Arizona man stayed on track Monday after two last-minute court cases ended with no rulings that would keep the state from putting 66-year-old Clarence Dixon to death.
Earlier in the day, the state Supreme Court declined to overturn a lower court ruling that found Dixon competent to be executed. And late in the day, Dixon’s attorneys dropped a federal court challenge against the drug the state wanted to use, after agreeing that a new batch mixed by a pharmacist slammed their argument that the drugs had expired , refuted.
Dixon is scheduled to be executed Wednesday morning at Florence State Penitentiary, a move that will end decades of waiting for the family of the 21-year-old Arizona State University student he killed in 1978.
Leslie James, the older sister of victim Deana Bowdoin, was in federal court Monday morning as the case unfolded and plans to be in jail on Wednesday. Because of the ongoing litigation over the case, she declined comment from her attorney.
In the lawsuit before the state Supreme Court, the Supreme Court declined to review last week’s decision by a Pinal County judge who dismissed arguments that Dixon’s mental illness left him unable to understand why he was executed.
While noting that Dixon suffered from schizophrenia, the judge said Dixon was rational and understood the procedure in his case well enough to show he was competent.
Dixon’s attorneys are now expected to ask a federal judge in Phoenix to consider whether his execution because of his mental illness would be unconstitutional. That had not yet been submitted as of Monday evening.
Dixon’s attorneys had challenged the state’s planned use of a batch of the tranquilizer sodium pentobarbital mixed in February. They claimed that it had expired and that its use would violate Arizona’s execution rules.
Arizona attorneys denied that the drug was expired, but instead offered to mix the new batch and have it tested for efficacy. Since it is used within three days, there is no worry that it is out of date.
It was doubtful whether the expired drug challenge claim would have been successful.
At a hearing Monday morning examining that allegation, US District Court Judge Diane Humetewa said she had “fought” to see how the argument could be made in the face of US Supreme Court rulings that courts did not delve into the details of the allegation State deaths should interfere, raise a valid constitutional issue injection decisions.
“The question I’m wrestling with is, does this constitute a constitutional right?” she asked Dixon attorney Jennifer Moreno.
Moreno told the judge that a 2017 settlement agreement required Arizona not to use expired drugs, and this helps support their contention that using expired pentobarbital amounted to cruel and unusual punishment.
“Without a proper test, these drugs should have been discarded and we shouldn’t even be talking about it,” Moreno said.
However, she conceded that if the state is able to mix up the new batch and have them tested before the scheduled execution at 10 a.m. on Wednesday, “that will resolve the outstanding issues in this case.”
That came Monday night when Humetewa called the court back into session and Moreno and Arizona Assistant Attorney General Jeff Sparks told her they had agreed that using a new batch would end the litigation.
Arizona and many other states have struggled to get execution drugs in recent years after drugmakers refused to sell their products for the purpose. Arizona obtained the pentobarbital it intends to use from an unidentified compounding dispensary.
Dixon, who is blind and in deteriorating health, is said to be the first person to be executed in Arizona in nearly eight years, largely over issues with the previous execution. The state had to give Joseph Wood 15 doses of a two-drug combination for over two hours before he died in July 2014 in an execution his lawyers called a botch. The state now uses only one drug.
Dixon was serving life sentences for assaulting a 21-year-old Northern Arizona University student in 1985, when DNA testing linked him to Bowdoin’s unsolved rape and murder.
Dixon was found “not guilty by reason of insanity” in a 1977 personal injury trial delivered by Sandra Day O’Connor, then Judge of the Maricopa County Superior Court, nearly four years before her nomination to the US Supreme Court. According to court records, Bowdoin was killed on January 7, 1978, two days after that verdict.
Bowdoin was found dead in her apartment, having been raped, stabbed and strangled. Dixon had been charged with raping Bowdoin, but the charges were later dropped on the statute of limitations. However, he was convicted in her death.
Defense attorneys said Dixon had been diagnosed with paranoid schizophrenia on multiple occasions, had experienced hallucinations regularly for the past 30 years and should not be executed.
Last Tuesday, the Arizona Supreme Court issued a warrant for a second execution. Frank Atwood is set to die on June 8 for killing an 8-year-old girl in 1984. Authorities say Atwood abducted the girl whose body was found in the desert northwest of Tucson.
This story has been corrected to show that Dixon’s execution is scheduled for 10am instead of 11am on Wednesday.
Associated Press writer Jacques Billeaud contributed to this report.
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