Arizona Botched an Execution and Accuses Witnesses of Lying About It

The law, lawyers, and the court.
July 24 2014 4:32 PM

Arizona’s Botched Execution

The state claims that witnesses are lying about the two-hour debacle.

Death Penalty.
We shouldn’t have to decide the constitutionality of executions based on he-said, she-said debates among witnesses.

Photo by Caroline Groussain/AFP/Getty Images

On Wednesday afternoon, in a ritual that has become increasingly—indeed almost numbingly—familiar, the state of Arizona administered a secret drug protocol that took almost two hours to kill a man. Joseph R. Wood III was sentenced to death in 1991 for shooting and killing his ex-girlfriend Debra Dietz and her father, Eugene. The murder was gruesome, and Wood was guilty. He shot his victims in the chest at close range. The only question that remains, as yet another state botches yet another execution, is whether the two hours of gasping and snorting by the accused before he finally died is excessive, or whether it sounds about right to us.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Wood’s execution dragged on for so long that at the midpoint, his lawyers filed an emergency appeal to stop the procedure and called on Justice Anthony M. Kennedy to intervene. Wood died before the federal court could respond, and Kennedy turned down the lawyers’ request. After Wood was pronounced dead, the Arizona Supreme Court ordered that the state “preserve any drug labels and unused drugs pertaining to the execution of Mr. Wood.”

The two-hour execution was just the latest debacle made possible by an ever more familiar combination of state secrecy, untried protocols being tested for the first time on live human beings, and a judicial system that can’t quite make up its mind about how much gasping and coughing is reasonable in a state-sanctioned killing. The new wrinkle is that this time we must endure the spectacle of witnesses to the execution fighting over how much suffering they saw.

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Wood’s lawyers challenged the execution before it took place. They raised First Amendment claims, arguing that the public and the accused had a right to know what was being pumped into Wood’s veins and where it came from. They asked the courts to let them know, specifically, “the source(s), manufacturer(s), National Drug Codes (‘NDCs’), and lot numbers of the drugs the Department intends to use in his execution; (2) non-personally identifying information detailing the qualifications of the personnel the Department will use in his execution; and (3) information and documents explaining how the Department developed its current lethal-injection drug protocol.”

This wasn’t exactly a random fishing trip. Wood’s lawyers sought this information because the state of Arizona—following an increasingly fashionable effort to keep lethal injection procedural details a secret—planned to use a two-drug cocktail of midazolam and hydromorphone to execute Wood. The details about the source of the drugs, the lot numbers, and how the protocol was devised were withheld by the state. This was, by the way, a protocol the state had never used before and the same combination Ohio used in January to execute Dennis McGuire. Witnesses reported that McGuire “started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes, with his chest heaving and his fist clenched.”

While most lethal injections take between 10 and 15 minutes, Wood’s took one hour and 57 minutes. And that is what the debate about capital punishment in America has now devolved into: We are debating how many minutes of wheezing and coughing are too many, under a lethal injection regime so fundamentally unfixable that federal appeals court Judge Alex Kozinski is advocating a return to the firing squad.

Not much has changed since I wrote about a similarly screwed-up execution in Oklahoma in April, an execution one lawyer described as looking like torture. Arizona, like Oklahoma and Ohio before it, refused to disclose any information about the drugs, which came from a compounding pharmacy because U.S. pharmaceutical companies and European suppliers no longer provide the necessary drugs for ethical reasons. After Wood’s lawyers sued seeking to know what drugs would be used, the various courts issued conflicting and contradictory orders. The execution was stayed by the 9th Circuit Court of Appeals over the weekend, reinstated by the U.S. Supreme Court on Tuesday, and green-lighted by the Arizona Supreme Court—which stayed the execution, then dissolved the stay.

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