Death penalty foes want Hobbs to publish the independent report she spiked

Arizona has carried out most executions with lethal injection since 1992, but with a litany of changing protocols and problems, which ultimately halted executions in the state for eight years. Photo courtesy Arizona Department of Corrections, Rehabilitation and Reentry

Several advocacy groups on Wednesday called on Gov. Katie Hobbs to finish and release an investigation into the state’s death penalty practices. 

In January 2023, after a series of botched lethal injections, Hobbs issued an executive order establishing a Death Penalty Independent Review Commissioner to examine how the Arizona Department of Corrections, Rehabilitation & Reentry carried out executions and issue a report on its findings.

Lethal injections are difficult to carry out, and many of them go very poorly. In 2014, the state of Arizona executed Joseph Wood after two hours and 15 injections of an experimental two-drug cocktail. In 2022, after renovations and several attempts to purchase more lethal injection drugs, Clarence Dixon was executed after 40 minutes. Execution staff had to place an IV line in his groin. Dixon bled as he died.

Hobbs hired retired federal Magistrate Judge David Duncan to conduct the report. His investigation began in September 2023. 

Duncan’s draft detailed the history of lethal injections in Arizona, which date back to 1992, and the numerous problems the state has had getting access to a supply of drugs to use for lethal injections.

“This impenetrable cloud of secrecy that cloaks the execution process is a by product (sic) of the desire and legislative command to protect the identity of the executioner,” Duncan wrote in the draft. “Unfortunately, the black hood that covered the person carrying out the execution has grown to a cement silo that shields nearly all aspects of execution procedures. It is this siloed environment that breeds the errors and flawed practices that hobble lethal injections.”

During his investigation, Duncan said, he interviewed roughly 40 to 50 people involved with the execution process and reviewed tens of thousands of ADCRR records. 

Within those records, Duncan found handwritten memos related to Wikipedia searches about lethal injection drugs and financial statements to one execution staff member who was paid $60,000 for three executions in 2022.

Duncan wanted to interview executioners in person, he said, and view a dry run of the protocols to better understand the methods being used. ADCRR would not allow him to do so.

Duncan’s draft concluded that the only method of execution that would be quicker and more painless than lethal injections is the firing squad, something that is explicitly barred by state law.

“A dozen shooters targeting the silhouette of the heart placed immediately above the actual organ would result in an obliteration of that organ and an immediate cessation of its pumping function, thus depriving all cells in the body of the oxygen required to function,” Duncan wrote.

In late November, Hobbs abruptly fired Duncan, ended his investigation and ordered that an internal investigation into execution practices and protocols by ADCRR Director Ryan Thornell would suffice.

“Your review has, unfortunately, faced repeated challenges, and I no longer have confidence that I will receive a report from you that will accomplish the purpose and goals of the Executive Order that I issued nearly two years ago,” Hobbs wrote in an email to Duncan. “Under Director Thornell’s leadership, ADCRR has undertaken a comprehensive review of prior executions and has made significant revisions to its policies and procedures.”

Hobbs’ office has provided media outlets with 12 pages of a draft report written by Duncan, in addition to ADCRR’s repudiation of his work and its own internal review, but has not made any of those documents available to the general public.

“Governor Hobbs and Attorney General (Kris) Mayes told us they had serious doubts about whether the state could carry out executions humanely, and that a thorough and independent review was necessary before executions were resumed in the state,” Jared Keenan, the legal director of the American Civil Liberties Union of Arizona, said during a press conference at the state Capitol on Wednesday. “Yet Governor Hobbs has now decided to dismiss Judge Duncan and complete an (internal) review of the state’s execution protocols, rather than allow the public to see a completed report.”

Duncan’s draft, which concludes that “lethal injection is not a viable method of execution in actual practice,” is an unfinished outline of the report. It was originally meant to be finished this month.

“I don’t know whether it was a shift in the political winds, or if they were no longer interested in waiting,” Duncan said.

With Duncan’s independent review axed, and the internal review completed, the Hobbs administration now has nothing blocking it from pursuing executions for some of the 111 people sitting on Death Row in Arizona. 

The first person likely to face a lethal injection is Aaron Gunches, who was convicted in 2002 for murdering Ted Price, an ex-boyfriend of Gunches’ girlfriend. Gunches kidnapped Price and killed him in a desert area near the Beeline Highway.

Gunches was not immediately imprisoned. In 2003, during a traffic stop, Gunches shot an Arizona Department of Public Safety officer twice and fled the scene. He was arrested a day later in Wenden after a massive manhunt.

In 2022, Gunches represented himself and asked for the Arizona Supreme Court to expedite his execution. He withdrew that request in 2023, but a lengthy legal battle played out between Hobbs and Mayes over Gunches’ death warrant. 

Now, with the legality of executions clearer, Mayes has requested another execution warrant for Gunches. 

It’s unclear exactly what will happen next, but advocates say they want transparency.

“What it ultimately comes down to is that Governor Hobbs, the Department of Corrections, and Attorney General Mayes are saying, ‘Trust us,’” said Katie Gipson-McLean, a defense attorney who represented the nonprofit organization Arizona Attorneys for Criminal Justice at the press conference. “That’s not good enough. We insist on proof.”