PHOENIX — A federal judge late Friday ordered Arizona to provide more
information on the drug it plans to use in two upcoming executions, but she
refused to block the executions.
U.S. District Judge Roslyn Silver’s ruling said the two convicts had
established a First Amendment right to the information. She ordered the drug’s
manufacturer, lot number and expiration date released by noon Saturday, noting
the state hadn’t shown why it should keep the information secret when it had
disclosed it before previous executions.
Also Friday, an appeals court ruled that Edward Schad could not raise a new
claim of ineffective assistance of counsel at his 1985 trial. The U.S. Supreme
Court ruled in June that the 9th Circuit must stop blocking his execution and
the case was concluded.
Schad is set for execution Wednesday and Robert Glen Jones Jr. on Oct. 23.
Assistant Attorney General John Todd argued at an afternoon hearing that
releasing the information would lead to harassment of the drug’s manufacturer
and distributor, and cited examples in Texas and with a British drug maker that
sold its interest in one drug after public scrutiny, making it more difficult
for states that use drugs for executions to obtain them.
But Silver’s ruling said the state hadn’t demonstrated there was a legitimate
reason related to its prison operations to justify not releasing the drug
information, and hadn’t shown it wasn’t exaggerating the impact of the release.
Lawyers for the inmates were worried the state may not have unexpired, FDA
approved drugs. The state uses just one drug, pentobarbital, and the sole U.S.
manufacturer said it won’t sell it for executions.
The federal public defenders for Schad and Jones said in court filings that
Arizona has a history of problems legally obtaining execution drugs and assuring
they aren’t expired.
Silver said the state had a tough mission in executions and has had to change
its drug protocol because it couldn’t get drugs and could have that problem
“They have been chasing a moving target, and they have an obligation _ whether
you like it, whether the public likes it or not _ to ensure these executions
take place,” Silver said.
A second appeal involving both inmates seeks a halt to the executions because
of allegations Gov. Jan Brewer’s office has improperly influenced the state
clemency board to deny clemency in high-profile cases.
Silver held a hearing earlier this week where current and former members of the
Arizona Board of Executive Clemency testified, then ruled there was “no
reasonable basis” to conclude the current board couldn’t be independent because
of worries they would lose their jobs or be passed over for reappointment.
She refused to reconsider that ruling Friday after defense lawyers called into
question testimony a current and a former board member made Tuesday.
Schad’s lawyer, Kelley Henry, said after court that she plan to pursue appeals
on the cases up until the execution date.
Schad, now 71, was convicted of killing 74-year-old Lorimer “Leroy” Grove of
Bisbee in August 1978 but has maintained his innocence. Grove was last seen
leaving Bisbee in a Cadillac that was pulling a trailer on his way to visit his
sister in Washington state. Eight days later, his body was found south of
Prescott in underbrush off the shoulder of U.S. 89.
Authorities say Schad drove Grove’s car across the country for a month, used
Grove’s credit cards and forged a check from the victim’s bank account. He was
arrested in Utah about a month after the killing.
Jones, 43, was condemned for the fatal shootings of six people during two 1996
armed robberies in Tucson. Jones and a co-defendant were found guilty of fatally
shooting two people at a Tucson smoke shop in May 1996 and four people at the
Tucson Firefighters Association Union Hall the following month.