PHOENIX (AP) – A federal judge on Saturday refused to stop an Arizona execution scheduled for Wednesday after the state provided attorneys for convicted murderer Clarence Dixon with documents detailing the testing of the drug it will use, but one extra flurry of last-minute court action could still cause delays.
That lawsuit almost certainly includes Dixon’s claim that test results released late Friday showed that the sedative to be used has passed its expiration date. Arizona attorneys say it won’t expire until August.
Dixon’s lawyers also plan to appeal to the Arizona Supreme Court, a state judge ruled Tuesday that although Dixon suffers from schizophrenia, he understands what is going to happen and is therefore qualified to be executed. If the Supreme Court refuses to overturn that, they plan to take the matter to federal court.
But time is running out, as U.S. District Judge Diane Humetewa noted.
“I just want to remind you that the opportunity here is closing,” Humetewa told Dixon’s lawyers at the end of Saturday’s hearing. “I ask you to bear that in mind.”
Saturday’s hearing focused primarily on whether the barbiturate sodium pentobarbital mixed into a solution by a licensed pharmacist met expiration guidelines. But that matter itself wasn’t up for court, just Dixon’s claim that he had a constitutional right to know the test results the state relied on to determine the expiration date.
When that was provided by the state Friday evening, Humetewa said she had nothing for her.
“So your request has been granted,” Humetewa said. “I think arguing whether or not the connection has expired is a completely different question.”
Dixon attorney Jennifer Moreno said an amended lawsuit will be expedited.
Arizona and many other states have struggled in recent years to get executive drugs after drugmakers refused to sell their products for that use. Arizona has obtained the pentobarbital they intend to use from an unidentified compounding pharmacy.
That pharmacist last September mixed a batch of the drug into a solution and sent it to a federally registered lab for testing, according to state documents. The tests showed it would last 180 days. The pharmacist then mixed a second batch of the same powder in February for use in Dixon’s execution, and the state claims it won’t expire until August.
But Moreno said the documents just provided by the state do not show what the state is claiming.
“The underlying data shows that the drug being tested failed the defendant’s own tests,” Moreno said. “These are the tests that the (state) said should be done to extend the expiration date beyond 45 days.”
Because they failed, Moreno said, the drugs the state plans to use have expired in mid-April.
Dixon, now 66 and blind, will be the first person to be executed in Arizona in nearly eight years, mainly because of problems with the previous execution. The state had to give Joseph Wood 15 doses of a two-drug combination over two hours before he died in July 2014 in an execution his lawyers said had failed. The state now uses only one drug.
Dixon has been convicted of murdering 21-year-old Arizona State University student Deana Bowdoin. He was serving life sentences for a 1985 assault on a 21-year-old Northern Arizona University student when DNA testing linked him to Bowdoin’s unsolved rape and murder.
Dixon was “found not guilty by reason of insanity” in a 1977 assault case, in which the sentence was handed down by Sandra Day O’Connor, then judge of the Maricopa County Superior Court, nearly four years before her appointment to the U.S. Supreme Court. According to court records, Bowdoin was murdered on January 7, 1978, two days after that verdict.
Bowdoin was found dead in her apartment and had been raped, stabbed and strangled. Dixon was charged with raping Bowdoin, but the charges were later dropped under the statute of limitations. However, he was convicted of her death.
Defense attorneys said Dixon has been diagnosed with paranoid schizophrenia on multiple occasions, has had frequent hallucinations for the past 30 years, and should not be executed.
On Tuesday, the Arizona Supreme Court ordered a second execution. Frank Atwood will 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.
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