PHOENIX – A federal judge on Saturday refused to stop an execution scheduled for Wednesday in Arizona after the state provided attorneys for convicted killer Clarence Dixon with documents detailing testing of the drug he will use, but one additional spate of last-minute court cases could still cause a delay.
That lawsuit will almost certainly involve Dixon’s claim that test results released late Friday showed the tranquilizer to be used had passed its expiration date. Arizona attorneys claim it won’t expire until August.
Dixon’s attorneys also plan to appeal to the Arizona Supreme Court against Tuesday’s ruling by a state judge that while Dixon suffers from schizophrenia, he understands what is about to happen and therefore has jurisdiction to execute. If the state Supreme Court refuses to overturn this, they plan to take the matter to federal court.
But time is of the essence, as US District Judge Diane Humetewa noted.
“I just want to remind you that the window of opportunity here is closing,” Humeteva told Dixon’s attorneys at the end of Saturday’s hearing. “I beg you to consider that.”
Saturday’s hearing focused primarily on whether the barbiturate sodium pentobarbital, which was mixed into a solution by a licensed pharmacist, met expiry guidelines. But that question itself was not before the judge, only Dixon’s assertion that he had a constitutional right to know the test results that the state relied on to set the expiration date.
After this was provided by the state Friday night, Humeteva said she had nothing ahead of her.
“So your request was granted,” Humeteva said. “I think the argument about whether or not the connection timed out is a whole different issue.”
Dixon’s attorney, Jennifer Moreno, said an amended lawsuit seeking to investigate this is being expedited.
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 they plan to use from an unidentified compounding dispensary.
This pharmacist mixed a batch of the drug into a solution last September and sent it to a state-registered laboratory for testing, according to state documents. The tests showed that it would last 180 days. The pharmacist then mixed up a second batch of the same powder in February for use in Dixon’s execution, and the state claims it won’t expire until this coming August.
But Moreno said the documents just provided by the state don’t show what the state claims.
“The underlying data shows that the drug tested failed the defendant’s own tests,” Moreno said. “These are the tests that the (state) said had to be done to extend the Exceeded Use Date beyond 45 days.”
Since they failed, Moreno said the drugs the state plans to use actually expired in mid-April.
Dixon, now 66 and blind, is believed 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 convicted of the murder of 21-year-old Arizona State University student Deana Bowdoin. He 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.
On 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 kidnapped the girl whose body was found in the desert northwest of Tucson.
Associated Press reporter Jacques Billeaud contributed.
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https://www.local10.com/news/2022/05/07/judge-wont-halt-arizona-execution-at-least-for-now/ The judge won’t stop the execution in Arizona — at least for now