| Arizona Republic
Attorney General Mark Brnovich said his department had found a compound pharmacist and asked if the Arizona Department of Corrections, Rehabilitation and Reentry leaders could meet with his senior staff in November to make plans.
Corrections Director David Shinn responded, saying the department already has made steps to buy the lethal drug and had identified a compound pharmacist.
“I and the entire Department stand shoulder-to-shoulder with you and the Arizona Attorney General’s Office to fulfill our respective duties under the law and to ensure that justice, at long last, is served for the victims, their families, and our communities,” Shinn wrote.
Brnovich has reminded Gov. Doug Ducey for more than an year about the state’s pause in executions, sending the governor updates about court proceedings concerning the state’s execution protocols, requests to help find a manufacturer that sells lethal drugs and then requests to purchase the drug after a supplier was found.
The next step was finding a compound pharmacist, a professional who could create a custom formulation of the approved drug.
One of the drugs Arizona is able to use is pentobarbital, which is a solid drug.
“You need to make sure it is available in the form that can be injected,” Daniel Ruiz, Ducey’s chief operating officer, told The Republic in September.
A compound pharmacist is required to ensure that the drug is in the proper form and that the process is done legally.
A federal lawsuit was filed against the state after the the last execution which was in 2014. Joseph R. Wood, was left snorting and gasping for nearly two hours before he died from a controversial drug cocktail.
The lawsuit led to a series of settlements, establishing what drugs the Department of Corrections could not use, what witnesses should be allowed to see, and how the protocol must be followed.
Over the years, it has been hard for states to find the lethal drugs because many manufacturers have refused to sell them and the Food and Drug Administration has flagged shipments.
This changed after the U.S. Department of Justice issued an opinion last year stating the FDA did not have jurisdiction for regulating drugs for executions. The federal government is using the same drug Arizona is trying to acquire.
Katie Conner, Attorney General’s Office spokesperson, told The Republic it will continue to assist in any way possible.
“Our Office has always maintained, the ultimate crimes deserve the ultimate punishment,” she said. “We appreciate the response from the Arizona Department of Corrections, Rehabilitation and Reentry.”
‘Victims’ families continue to suffer’
Families and loved ones of countless victims have advocated for years that Arizona resume executions. They have met with state leaders, sent numerous letters and written op-eds sharing their precious memories and the horrific details of cases.
The overall court process can be daunting for families and loved ones.
Brnovich has said the state must ensure that justice is served for the victims and their families. Several families have met with the attorney general to share their stories. Connor said hearing their pain is “heartbreaking.”
“Far too often we focus on the convicted killers in these cases,” she said. “Meanwhile, the victims’ families continue to suffer as justice gets further delayed. Those convicted of the ultimate crimes need to be held accountable.”
Parents like Debbie and George Carlson, and siblings like Leslie Bowdoin James, are still waiting for the men who killed their family members to be executed.
The Carlsons’ 8-year-old daughter, Vickie Lynne Hoskinson, was murdered by Frank Atwood 36 years ago.
After hearing the news on about a compound pharmacist being found, Vickie Lynn’s parents made a statement. Her parents are thankful for the work of Arizona’s leaders.
“When our daughter, Vicki Lynne Hoskinson, was kidnapped, raped and brutally murdered on September 17, 1984, we never imagined we would be fighting for her justice 36 years later,” the parents wrote. “Our world, since that September day, has been a journey we hope no other family ever has to endure.”
The child’s entire family continues to fight for justice and they remain hopeful.
James is the only member of her sister’s immediate family that is still alive. Deana Bowdoin, 21, was a student at Arizona State University at the time of her murder in 1978.
Her murder was a cold case until the Tempe Police Department used DNA technology to find the killer. Clarence W. Dixon was serving a life sentence for sexual assault. His DNA was connected to the scene of Bowdoin’s murder, and he was sentenced to death.
“For the first time in 42 years, I am hopeful that we are close to seeing justice for Deana, our family, her friends and all of this inmate’s other victims,” James wrote to a letter to Ducey in August.
Using pentobarbital, the same drug approved for Arizona, the U.S. Department of Justice resumed executions for federal inmates in July after a 17-year hiatus. Lezmond Mitchell, an Arizona man and citizen of the Navajo Nation, was executed in August for the murder of Alyce Slim, and her 9-year-old granddaughter, Tiffany Lee. He was the first Native American executed by the federal government in modern history.
Lezmond Mitchell and his victims were citizens of the Navajo Nation. Crime on tribal lands is under federal jurisdiction.
After the execution, Tiffany’s father, Daniel Lee, said he received justice. His attorney, Colleen Clase read the father’s statement on his behalf.
“I have waited 19 years to get justice for my daughter, Tiffany,” the father wrote. “I will never get Tiffany back, but I hope that this will bring some closure.”
Lawsuit over death penalty panel continues
Meanwhile in Maricopa County, the American Civil Liberties Union of Arizona and the County Attorney’s Office are continuing to fight over public records involving potential death-penalty cases.
The two parties reached a settlement over public records earlier this year in a lawsuit that has cost the county $24,000.
A remaining issue involves whether a judge will order County Attorney Allister Adel to release records of the office’s capital review committee. The committee provides advice on first-degree murder cases.
MCAO and ACLU attorneys will meet in front of a Superior Court judge for an oral argument on Friday.
When requesting public records from the Maricopa County Attorney’s Office, the ACLU asked for several documents, including the voting history of the capital review committee. The ACLU requested information from Jan. 1, 2013, to the present at the time of submitting the public records request in October 2018.
The committee gives advice to the office on if it should pursue the capital punishment in cases. It votes and then provides its conclusion to the county attorney, who makes the ultimate decision.
State law doesn’t require the County Attorney’s Office to have this type of committee process.
Last year, Gov. Ducey signed into law legislation that eliminates three of the possible aggravating circumstances, potentially limiting how many people will qualify for a death sentence.
None of the records involved in the ACLU’s request is for cases currently in trial.
County Attorney Allister Adel told The Republic in a statement, the office views the voting history as work product.
“The record at issue is part of the deliberative process when advising me on making this strategic and very serious decision regarding seeking the death penalty,” Adel said. “My office has produced huge volumes of records responsive to the requester and stand by the decision that this single document is privileged and not subject to public release.”
The ACLU argues many of the committee’s records are “generalized office policies.” Jared Keenan, a lawyer for the ACLU, said it doesn’t want to know the committee member’s names, but only the voting history.
“Those vote tallies are important because we can see if there was ever or not any disagreement within the committee or if all of the cases where the death penalty is sought are unanimous votes, which can also be problematic,” he said.
The organization wants to compare how many times the office pursued the death sentence against the capital review panel’s advice.
Keenan said the information is also important to citizens voting in elections and to show if there were racial disparities in pursuing capital punishment in Maricopa County.
The organization released a report in July stating people of color were disproportionately prosecuted more in Maricopa County under the administration of Bill Montgomery, who is now a justice on the Arizona Supreme Court.
Does the public need to know?
According to a transcript of a March 6 hearing on the issue, Judge Barry Schneider, the special master, is recommending the court order Adel to release the records.
Ann Uglietta, an attorney representing MCAO, told Schneider the office informs the public on cases by filing a notice of intent in dockets for criminal cases. These filings inform the court that the office wants to pursue the capital sentence in a case.
Uglietta told Schneider it wasn’t relevant if the public wanted to know if the county attorney went against the advice of the death penalty committee.
Adel, a Republican, is currently running to win a full term against Julie Gunnigle, a Democrat. Adel was appointed by the Board of Supervisors after Montgomery became a justice for the Arizona Supreme Court.
Schneider asked Uglietta if she thought voters would like to know if Adel and her predecessors decided to pursue the capital sentence even if the committee didn’t support it.
“It doesn’t matter if the voter would want to know,” Uglietta said. “It’s still protected information.”
In 2017, Montgomery wrote in an op-ed in The Republic that the death penalty was still needed.
“As long as there are horrific murders reflecting the worst of crimes, there will be a role for the death penalty as a just and proportionate punishment,” he wrote.
The special master asked how this could be applied to post-conviction relief claims made by those already convicted for errors in their trial or ineffective assistance.
The office’s attorney said “the defense bar could abuse” the information.
“Regardless of whether they would be successful, they could create a lot of havoc and there could be a lot of time wasted an attorney can be dragged into court and questioned on their vote,” Uglietta told Schneider.
She also noted that the office is concerned that some convictions could be appealed and then lead to the court overturning them and remanding the case for a new trial.
Under Adel’s leadership, the office decided to stop pursuing the death penalty in the cases against Jesus Busso-Estopellan, a man who killed two teens during a 2011 drug deal in Mesa, and Bryan Hulsey, convicted of first-degree murder in the 2014 death of a Glendale police officer.
Both cases originally were prosecuted by former deputy county attorney Juan Martinez. Martinez was recently disbarred and reprimanded for ethical misconduct in three capital murder cases.
“The county attorney does support the death penalty in the worst of the worst cases,” Maricopa County Attorney’s Office spokeswoman Jennifer Liewer told The Republic earlier this year. “It signifies that she is going to look at every case on its individual merits and make sure that justice is done. Sometimes that might include changing course during the process.”
The ACLU disagreed that the general defense community would do “something shady” with the information.
“There’s not basis in the law for a defense attorney to be able to use this in any way to hinder a death prosecution,” Keenan, ACLU’s attorney told Schneider.
According to Somil Trivedi, another attorney for the ACLU, Arizona case law says it’s inappropriate to look into the purpose for why someone is requesting documents.
“If the documents are disclosable and requested in the proper way they should be disclosed,” he said.
After hearing the concerns of the ACLU and MCAO, Schneider recommended the court order the county attorney’s office to release the records from a specific time frame, provide a tally of the committee’s decision and exclude the committee members’ names.
Have thoughts about people incarcerated in Arizona or the Maricopa County Attorney’s Office? Reach criminal justice reporter Lauren Castle at Lauren.Castle@gannett.com. Follow her on Twitter @Lauren_Castle.
Support local journalism. Subscribe to azcentral.com today.