The 9th U.S. Circuit Court of Appeals ruled Saturday that Arizona must divulge information about the drugs and executioners it will use to put a man to death Wednesday or the execution will not go forward.
Joseph Wood, who killed his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz, in Tucson in 1989, is scheduled to die July 23.
But his attorneys at the Federal Defender's Office in Phoenix filed suit claiming he had a First Amendment right to know who supplied the drugs that will be used to kill him and the qualifications of the executioners who will carry it out.
Two of the judges in a panel of three sided with Wood; the third dissented.
At issue is a new drug combination that Arizona has turned to because it cannot obtain the drugs it normally uses for executions. That combination, and one of the drugs in particular, a Valium relative called Midazolam, has caused apparent "flawed executions," as the court called them, in Ohio and Oklahoma.
The state argued that the information is protected by state law shielding the identity of executioners, and that there is no mandate to turn over all information held by the government.
A judge in the U.S. District Court in Phoenix agreed, prompting Wood's attorneys to take the case to 9th Circuit. It was argued in San Francisco on Friday and the 9th Circuit issued its opinion late Saturday afternoon.
The court said "... the State's argument ignores the ongoing and intensifying debate over lethal injection in this country, and the importance of providing specific and detailed information about how safely and reliably the death penalty is administered."
The opinion mentioned problems over the past several years in obtaining lethal injection drugs. In 2010, The Arizona Republic reported that Arizona had sidestepped federal laws to obtain lethal injection drugs from overseas.
The U.S. District and Appeals Courts in Washington, D.C., ruled that the laws had been violated, but Arizona officials have steadfastly denied that the state violated them, placing responsibility on the federal agencies regulating the drugs.
The 9th Circuit took note.
"We, and the public, cannot meaningfully evaluate execution protocol cloaked in secrecy," the majority wrote. "It is in the public's interest that Wood's injunction be granted."
The Arizona Attorney General's Office, which represents the Department of Corrections in the matter, told The Republic that it will ask the court to reconsider the decision en banc, meaning that it wants a larger panel of judges to evaluate the question.
Wood's attorney, Dale Baich of the Federal Public Defender's Office, said, "The court correctly recognized the importance of the information Mr. Wood seeks. There is a continuing and intensifying debate over lethal injection in the country, and the court said it's important that specific and detailed information be provided so the public can know about how safely and reliably the death penalty is administered."
In its arguments, the state noted that public attention to the sources of the lethal injection drugs has already led to drug manufacturers refusing to sell to prisons for executions.
Judge Jay Bybee agreed in his dissent, saying, "...the disclosure of certain kinds of information also hobbles the state's ability to carry out its legitimate functions. When disclosure inhibits the effectiveness of the process at issue without producing substantial benefits, then public access to the information does not "play a significant positive role in the functioning of the particular process in question."
But the majority issued a preliminary injunction that can be lifted by Wednesday if the state turns over the information. If not, the warrant for Wood's execution will expire by Thursday morning.
"We will be asking the full court to consider this opinion," said Assistant Arizona Attorney General Jeffrey Zick. "Judge Bybee's dissent correctly points out that there is no First Amendment violation here."
If the court refuses to do so, the state can appeal to the U.S. Supreme Court, and whether Wood is executed Wednesday could go down to the last minute.