Convicted killer Frank Atwood was down to his last appeals Tuesday, after a federal circuit court rejected a bid to stop his Wednesday execution for the 1984 murder of an 8-year-old Tucson girl.
The 9th U.S. Circuit Court of Appeals on Tuesday afternoon upheld a three-judge panel’s decision from earlier in the day rejecting Atwood’s arguments that his spinal disease would cause him “extreme” pain if he was strapped to a gurney for the lethal injection.
Atwood’s attorneys had appealed that decision to the U.S. Supreme Court Tuesday night, and were also pressing a last-minute appeal with the Arizona Supreme Court.
But if those appeals fail and Atwood is executed as scheduled Wednesday morning, he would be the second person put to death in Arizona in a month, after a gap of eight years since the prior execution.
Atwood has long maintained his innocence in the kidnapping and murder of Vicki Lynn Hoskinson. His attorney, Sam Kooistra, said in a statement that the state is on the verge of executing “an innocent man who was convicted in a case haunted by the specter of prosecutorial wrongdoing and an alternate suspect.”
But Arizona Attorney General Mark Brnovich welcomed the circuit court ruling, saying Atwood “has been afforded an extraordinary amount of legal process over the decades.”
“Capital punishment is the appropriate response to those who commit the most shocking and vile murders because it ensures the last word still belongs to the innocent victims who can no longer speak for themselves,” Brnovich said in a statement released by his office Tuesday.
The state had scheduled both Atwood and Clarence Dixon for execution last fall, but those executions were put on hold after defense attorneys said the pentobarbital to be used had expired. But the state was able to replace those drugs this year, and Dixon was put to death May 11.
He was the first inmate put to death by the state since 2014, when state officials botched the execution of Joseph Wood, who received 15 injections of drugs over a two-hour period, during which witnesses said he was snorting and gasping for air before he died.
Because they committed their crimes before 1992, both Dixon and Atwood could choose to die in the state’s gas chamber, which was last used in 1999, or be put to death by lethal injection. Atwood did not choose a method, so was scheduled to die by lethal injection.
But in one of his last appeals, Atwood claimed that the state’s uses of hydrogen cyanide in the gas chamber is unconstitutional, and demanded to be put to death using nitrogen gas – a demand the state denied.
A federal district judge on Saturday upheld the state’s decision to put Atwood to death by lethal injection. Joe Perkovich, an attorney for Atwood, called that decision “nonsense,” saying it essentially means Atwood “would have to choose an unconstitutional execution by hydrogen cyanide gas, in order to have a basis in theory to challenge its constitutionality.”
The district court also rejected Atwood’s claim that pain from a spinal disease that forces him to sit in a wheelchair most of the time, and to bend one leg when he tries to sleep. That would cause him “significant pain” if he was strapped to a gurney for the lethal injection, in violation of his Eighth Amendment protection against cruel and unusual punishment.
But the district court noted that state officials have said they can tilt the gurney and provide Atwood with a wedge for his back to ease any pain, similar to how he sleeps in his cell and refused to delay the execution.
The 9th Circuit upheld that ruling Tuesday, agreeing with the lower court that “the Eighth Amendment does not guarantee a prisoner a painless death and a defendant’s Eighth Amendment rights are impinged only when the risk of potential pain is ‘substantial when compared to a known and available alternative.”
In his appeal to the Arizona Supreme Court, Atwood claimed that the state wrongly withheld information during his trial. That claim was rejected last week by a Pima County Superior Court judge, who said Atwood should have raised the claims earlier in his case and thus was not entitled to a retrial now.
His attorneys say the FBI inspected Atwood’s car and found no physical evidence including blood, hair or fingerprints that tied him to the crimes committed against Hoskinson, whose body was found months later in the desert. No cause of death was ever determined, and Atwood’s attorneys also say there were no eyewitnesses to the kidnapping but that witnesses came forward and pointed to another suspect.
“The state suppressed exculpatory evidence for many years,” Perkovich said Tuesday. “The courts have refused to consider it and have rejected consideration based on procedural grounds that are unfounded.”
The Arizona Board of Executive Clemency on May 24 refused to commute Atwood’s sentence, leaving the U.S. and state supreme courts as his last options.