Courts refuse to block Arizona execution - East Valley Tribune: Tempe

Courts refuse to block Arizona execution

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Posted: Wednesday, May 25, 2011 1:28 pm | Updated: 3:48 pm, Wed May 25, 2011.

State and federal courts on Wednesday denied requests by inmate Donald Beaty to block his scheduled execution because of a last-minute replacement of one of three execution drugs.

The Arizona Supreme Court lifted a temporary stay that it issued late Tuesday after Beaty's lawyers objected to the state's announcement of the drug swap.

The justices later ruled 4-1 to lift the stay, with the majority saying Beaty's lawyers hadn't proved he was likely to be harmed by the change. Justice Andrew Hurwitz dissented, saying he was troubled by the timing.

Meanwhile, U.S. District Judge Neal Wake in Phoenix refused to block the execution. And the U.S. Supreme Court declined to consider two stay requests for Beaty.

However, Beaty's lawyers then turned to the 9th U.S. Circuit Court of Appeals and filed a notice of appeal to Wake's ruling.

Expecting further court action, prison officials in Florence took no visible steps by early Wednesday afternoon to begin the execution.

Beaty was sentenced to death for the 1984 murder of 13-year-old Christy Ann Fornoff, of Tempe.

His lawyers objected to the planned drug switch that the state announced 18 hours before the now-passed scheduled execution time of 10 a.m. Wednesday.

The Arizona court issued the temporary stay Tuesday night after Arizona officials said they had planned to replace sodium thiopental with another sedative, pentobarbital, because federal officials contended the state failed to fill out a form to import a supply of the drug being swapped out.

Beaty defense attorney Jennifer Garcia said Beaty didn't object to using pentobarbital but that the last-minute switch denied his lawyers an opportunity to determine whether the new drug would be properly administered and avoid subjecting him to severe pain inflicted by another execution drug if the sedative isn't effective.

"It's not just a simple switch. There's certainly much more to it than that," she said.

Assistant Attorney General Kent Cattani said the only issue is whether the prison medical team, which includes a medical doctor, can mix and administer the drug. Beaty's defense hasn't offered any proof that there's a problem and the stay should be lifted, Cattani said.

The attorney general's office notified the state Supreme Court on Tuesday that the Corrections Department would replace sodium thiopental with pentobarbital.

The state's filing said the Corrections Department was making the swap because a U.S. Justice Department official told the state the Drug Enforcement Administration believes the Corrections Department "failed to fill out one of the forms necessary for importation of sodium thiopental from a foreign source."

Defense lawyers for Arizona death row inmates for months have questioned whether the state legally imported its supply of sodium thiopental. State officials previously acknowledged a miscoding on an importation form but insisted they acted legally in obtaining a supply of sodium thiopental from a British supplier last year.

"The question of whether the Department of Corrections legally imported the drug has now been answered," defense attorney Dale Baich said before the temporary stay was granted.

Several other states have already switched to pentobarbital because sodium thiopental is in short supply nationally, and state Corrections Director Charles Ryan has said previously that Arizona planned to switch to that drug also.

DEA officials seized several states' supplies of sodium thiopental because of importation issues.

The Arizona filing said DEA "has not taken any action against the Arizona Department of Corrections to date" and that the Justice Department official who contacted the department Tuesday "offered no explanation for the timing of the call."

Department of Justice spokeswoman Laura Sweeney declined comment.

Natasha Minsker, death penalty policy director for the American Civil Liberties Union of California, said Arizona's "11th-hour switch to another execution drug" was unconscionable.

"Rather than rushing to change the rules to carry out an execution, we all should be asking why state and federal officials failed for months to follow or enforce the law," Minsker said in a statement.

On May 9, 1984, Beaty kidnapped Christy from the Tempe apartment complex where he worked as a custodian while she was making collections for her newspaper route with her mother. He took her to his own apartment, where police say he raped and suffocated Christy as her mother searched the complex for her.

___

Associated Press writer Amanda Lee Myers contributed from Florence.

© 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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