PHOENIX - A judge is mulling whether to postpone the July 23 execution of an Arizona death row inmate who is demanding details about the two-drug combination that will be used to put him to death.
The arguments made Wednesday by inmate Joseph Rudolph Wood's lawyers mark a new legal tactic in death penalty cases. Wood's attorneys want his execution delayed until officials provide the information and argued his First Amendment rights were violated by the state's refusal to provide key details, such as the makers of the drugs and how the state developed its method for lethal injections.
Two other Arizona death row inmates prevailed last year in making First Amendment arguments, but the judge in Wood's case said there's no case law to back up his lawyers' claims that they are entitled to that information.
The legal dispute in Arizona is emerging as concerns over the death penalty mount after a botched April 29 execution of an Oklahoma inmate and an incident in January in which an Ohio inmate snorted and gasped during the 26 minutes it took him to die.
The Oklahoma inmate writhed on the gurney after he was given a three-drug combination. The execution was stopped after a doctor determined there was a problem with an IV in the inmate's groin. The Ohio execution was the longest since the state resumed putting inmates to death in 1999.
Arizona prison officials intend on using the same drugs -- the sedative midazolam and painkiller hydromorphone -- used in the Ohio execution. A different drug combination was used in the Oklahoma case.
Deborah Denno, a professor at Fordham Law School who has studied executions for more than two decades, said the First Amendment arguments by lawyers for condemned inmates are a relatively new development that grew out of the problems that states have faced in recent years in getting supplies of lethal injection drugs.
The arguments weren't raised in the past because states used the same three-drug combination and didn't have problems getting access to the drugs, until the maker of a sedative used in executions decided not to make it anymore. Then, states started to shield the identity of the drugmakers.
"The issues have changed -- the dynamics have changed -- that require this approach," Denno said. "This wouldn't have been necessary in the past."
Lawyers for the state say there is no First Amendment right to the information Wood seeks. "Wood alleges a right that doesn't exist," said Matthew Binford, an attorney for the state.
Robin Konrad, an attorney for Wood, said her client has a First Amendment right of access to non-confidential information connected to executions, which are already open to journalists to attend.
U.S. District Judge Neil Wake posed skeptical questions about Wood's arguments that the access to the executions themselves extends to documents related to such executions. "I don't see anything that supports that," Wake said.
In October, another federal judge ordered Arizona officials to provide more information on the drug it planned to use in two death penalty cases. The judge had ruled the inmates had established a First Amendment right to the information, such as the drug's manufacturer. Prison officials released the information, and both inmates were executed shortly thereafter.
Wood, 55, is scheduled to be executed in the August 1989 shooting deaths of his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz, at an automotive shop in Tucson.
He watched arguments in his case Wednesday by video conferencing from the prison where he is being held.
Wood and Debra Dietz had a tumultuous relationship in which he periodically assaulted her. Wood fatally shot Dietz's father in the chest. Dietz was on the phone calling for help when Wood grabbed her around the neck and shot her in the chest. Wood acknowledged his role in the killings but said they weren't premeditated.