Arizona violates journalists' rights to witness executions, attorney says

·6 min read
The lethal injection execution chamber at the Arizona State Prison in Florence as seen in 1993.
The lethal injection execution chamber at the Arizona State Prison in Florence as seen in 1993.

The Arizona Republic is demanding the Arizona Department of Corrections follow their own protocols and give the press its legally mandated access to serve as witnesses to executions.

The Department of Corrections violated the law and its own policies by denying The Republic access to the execution of Clarence Dixon, and for failing to allow other witnesses who were granted access to see the entirety of the execution, attorney David Bodney said in a letter sent Monday to Arizona Department of Corrections Director David Shinn and Gov. Doug Ducey.

Bodney represents Phoenix Newspapers, Inc., which publishes The Republic and azcentral.com.

While the state’s guidelines allow Corrections director David Shinn to invite up to five members of the media, only three reporters were given access to the May 11 execution of Clarence Dixon, the first execution in Arizona since 2014.

Shinn is “allowed by Arizona law to select ‘at least twelve reputable citizens ... to be present at the execution [of an inmate],’” Bodney wrote, citing Department protocols. The protocols also state: “In addition ... up to five members of the media may be present for executions as members of the press pool.”

The procedures define those five official media witnesses as “representatives, from

media-print, television/cable, radio, and the local market where the crime occurred.” Reporters selected to be a part of the press pool are asked to relay what they saw to other media in a press briefing conducted at the prison after the execution.

“It merits note that The Arizona Republic, which is printed in Maricopa County and is the largest daily-circulation newspaper in Arizona, has been denied access to be present at the State’s most recent executions – one, administered this month, the other scheduled for next – as a member of the press pool,” Bodney wrote.

Nationally, courts have ruled media witnesses are central to the legal protocols governments must follow to conduct executions.

In Dixon’s case, media witnesses described how the execution team struggled to insert IVs into Dixon’s body, eventually resorting to making an incision into his femoral vein.

They took notes on what Dixon said, and provided important details on the length of time it took to put him to death.

They also reported that, in violation of protocols, witnesses found it hard to hear or see all aspects of the execution.

Paul Davenport, a veteran reporter with the Associated Press who witnessed Dixon's execution and has witnessed previous executions, said the audio feed was not crystal clear. “I had a hard time making out his voice,” he said of Dixon.

There were screens on two sides of the witness room, Davenport said, but the execution was hard to follow on those closed-circuit monitors.

“You had the same image of the - looking down on him shot - as it were,” he said. “And then in the middle, you had one screen that has a tight close up of the sets of injection drugs. And that's all you saw. You occasionally saw some hands - blue gloved hands reached down and manipulated one or two of them at a time. I had a hard time actually discerning what was happening and in what order.”

Several media witnesses reported that Dixon asked the execution team if they were doctors and they appeared to answer him, however, witnesses could not hear the replies. Dixon seemed to indicate they had responded in the affirmative because he then asked them if they were violating their Hippocratic oath.

Dixon’s attorneys reported it took 40 minutes and an incision in Dixon’s groin to get the IVs into his body, during which time he grimaced in pain and struggled against the restraints. It is unclear whether this was due to a lack of medical experience of the execution team, but the public would have known if reporters could clearly hear what was said in the room.

Additionally, Dixon’s attorney, federal assistant public defender Amanda Bass, stated in a declaration that her first view of Dixon was after he had been restrained to a gurney in the execution chamber.

“I entered the viewing room at 9:27 AM,” Bass wrote. “At 9:32 AM the curtains to the execution chamber opened. Clarence was strapped to the gurney.”

But the right of press access “extends from the moment the condemned person enters the execution chamber,” Bodney wrote, citing a 2016 ruling from U.S. District Chief Judge G. Murray Snow.

“In fact, the U.S. District Court entered a permanent injunction against ADOC requiring that it ‘allow execution witnesses to view the entirety of the execution, including each administration of drugs,’” Bodney wrote. “Based on the evidence at hand, PNI believes ADOC violated the Permanent Injunction, legal precedent on point and its own policies during the course of the Dixon execution.”

Death row: Arizona prisoner Frank Atwood requests execution using nitrogen instead of cyanide gas

The Republic was one of several news outlets that were denied requests to serve as media witnesses for the Dixon execution. Reporters from The Phoenix New Times and KOLD in Tucson confirmed to The Republic their requests to serve as media pool witnesses were denied.

“This is about more than just access for the Republic,” said Republic Executive Editor Greg Burton. “This is about having as many members of the press as possible conduct oversight on behalf of the public of the ultimate act of any government; taking someone's life. There is no undoing a mistake."

After the Department of Corrections denied the Republic's request just days before the Dixon execution, Burton said he contacted the Governor’s office to express concern about the process.

“I reached out to Gov. Ducey to let him know that his agency is playing games with a process that could not be more grave – and legally prescribed," Burton said. "His chief of staff, Daniel Ruiz, just scoffed."

Burton said Ruiz told him if The Republic did not print “false information,” the news organization might be treated differently.

In the demand letter, The Republic calls upon the Department of Corrections “to ensure that the forthcoming execution of Mr. [Frank] Atwood comports with the clear mandates outlined by the courts, ADOC’s own policies and the rights secured by the Federal and Arizona Constitutions.”

In the letter, Bodney asks the Department to grant The Republic access to Atwood’s execution, scheduled for June 8, as a member of the media pool “to erase the appearance of impropriety and enhance the public’s right to observe the entirety of the capital punishment process in Arizona.”

Anticipating the Department of Corrections would again limit full media access, a Republic reporter asked Atwood’s attorney to attend the execution as a witness for his client. But department protocols are ambiguous as to whether witnesses for the prisoner receive the same access as media pool witnesses.

“The Department’s refusal to permit a journalist from Arizona’s largest-circulation newspaper to witness the execution as a media representative raises serious concerns,” Bodney wrote. “It is imperative that a full complement of five media witnesses be permitted to attend all executions, and that a reporter for The Republic be among them so the public can have full confidence in the State’s administration of justice.”

Have a news tip on Arizona prisons? Reach the reporter at jjenkins@arizonarepublic.com or at 812-243-5582. Follow him on Twitter @JimmyJenkins.

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This article originally appeared on Arizona Republic: Attorney: Arizona violates journalists' rights to witness executions