Efforts by an Arizona death row inmate's lawyers to block his scheduled execution produced a disclosure that Arizona plans to use a knockout drug not made by the sole U.S. manufacturer. A lawyer for the inmate said after a court hearing Wednesday that means the drug came from another country.
Jeffrey Landrigan, 50, is scheduled to die by lethal injection Tuesday for a 1989 killing.
His lawyers argue that using the drug sodium thiopental that has expired or was obtained from an unreliable source may not work correctly, potentially subjecting Landrigan to cruel and unusual punishment through death by suffocation.
They want the Arizona Supreme Court to order the state to provide details about the drug, including its source, labeling and expiration date.
Assistant Attorney General Kent Cattani said prosecutors could provide information about the drugs to the court under seal if necessary but that the source cannot be publicly disclosed because state law requires confidentiality for those involved with executions.
However, Cattani did say when questioned by justices that Arizona obtained its supply from a lawful source, and that Hospira Inc., the only U.S. maker of the drug, didn't produce it.
The specific source of the drug doesn't matter because the state's execution protocol requires the medical team to confirm lack of consciousness before two additional drugs are administered to paralyze and to stop the heart, Cattani said.
"That is the protection that is necessary, not where the drug came from," he said.
What Cattani said about Hospira not being the drug source means it must be foreign, Dale Baich, a lawyer for Landrigan, said after the hearing.
Hospira is currently not making the drug and it is in short supply nationally.
Landrigan's lawyers said use of the drug for an execution falls under a federal consumer safety law on food and drugs.
"It has to do what it is intended to do," said Landrigan attorney Karen Wilkinson.
But Justice Andrew Hurwitz voiced skepticism about the consumer safety law applying to an execution.
"These are drugs that are going to be used to kill somebody," Hurwitz said.
The court did not rule immediately on that issue or two other defense motions to stop the clock on the execution, which would be the state's first since 2007.
Landrigan faces a death sentence for the 1989 killing of Chester Dyer, of Phoenix. Dyer was stabbed and strangled in his apartment in a killing that authorities attributed to a robbery motive.
One stay request argues that Landrigan is entitled to have additional DNA testing conducted on evidence — a blood smear on Dyer's pants — that it said a defense scientist inadvertently didn't process years ago.
Several justices questioned whether they should allow the execution to proceed when a trial judge recently ordered that the evidence be provided again to the lab to test .
Cattani argued that additional testing isn't necessary because at most it would indicate another person was present, which the prosecution contends was the case. "The evidence will not exonerate him," Cattani said.
Landrigan attorney Sylvia Lett said finding another person's DNA in the blood smear would bolster the defense's argument that Landrigan either wasn't the actual killer or wasn't involved at all.
The justices' questioning during Wednesday's hearing touched only briefly on the second stay request, a claim Landrigan couldn't get a fair decision from Gov. Jan Brewer on a commutation recommendation made before Nov. 2 because she's on the ballot.
A stay is needed "to ensure that it is not tainted by the political process," Landrigan attorney Karen Wilkinson said.
Prosecutors said the motion amounts to speculation and noted that Brewer can only consider commuting Landrigan's sentence to life in prison if a state board recommends she do so.