Sidley Austin Secures Ariz. Death Penalty Reforms

By Emma Cueto | August 2, 2020, 8:02 PM EDT

It took two hours for the state of Arizona to execute Joseph Woods, 55, in 2014. Woods spent much of that time gasping and struggling to breathe as the state continued to administer additional doses of an experimental combination of fatal drugs, while observers watched through a window with the audio feed deliberately turned off.


In June, attorneys from Sidley Austin LLP and the Federal Public Defenders reached a deal that resolved the last remaining claims in the six-year litigation challenging the way the state handled the Woods execution.

The settlements in the case, brought as a pro bono matter on behalf of the First Amendment Coalition of Arizona and seven death row inmates, imposed restrictions on the drugs that Arizona can use in its executions and its discretion to modify the execution procedure, though the state scored a victory on keeping supplier identities secret. In the most recent settlement, Arizona also agreed it would not mute the sound of future executions, a First Amendment victory.

Collin P. Wedel

"For us, we saw an opportunity to vindicate an important set of civil rights both for the prisoners and for the public," said Collin P. Wedel, a Sidley associate who has worked on the case since 2014. "In addition to trying to make sure that Arizona wouldn't use these problematic drugs again, we also wanted to bring accountability and transparency to a process that has very much become shrouded in secrecy."

The Woods case was originally filed before the execution, with Woods' attorneys seeking more information about the drugs that would be used. The execution was initially stayed by the Ninth Circuit, but then allowed to proceed by the U.S. Supreme Court.

Arizona used a combination of the sedation drug midazolam and the opiate hydromorphone, which had been used in different dosages in another botched execution in Ohio.

When the execution process did not go to plan and Woods appeared to wake up from sedation, the state continued to give additional doses of both drugs while Woods gasped for air, eventually administering 13 times the planned dosage.

Between the administration of the first dose and Woods' time of death, 117 minutes elapsed.

After the execution, the lawsuit against the Arizona Department of Corrections Director Charles L. Ryan was amended to challenge the states' decision not only to use midazolam and hydromorphone, but also to deviate from its own execution protocols on the fly and to shut off the audio feed from the execution chamber, among other claims.

The broadened lawsuit took larger aim at Arizona's death penalty processes. The case focused on First Amendment claims challenging the secretive process, Eighth Amendment claims alleging that the drugs used amounted to cruel and unusual punishment, and 14th Amendment claims regarding the way the execution protocols were carried out and modified.

It was at this point that the Federal Public Defenders, who represented Woods, reached out to Sidley to help with the new phase of litigation.

Joshua E. Anderson

"We had worked with the Federal Public Defenders office over a lot of different litigation over a number of years," explained Joshua E. Anderson, a partner at the firm. That relationship made this a natural case for the firm to take on pro bono, he said.

For years, there had been problems with Arizona executions, Dale Baich with the Federal Public Defenders office told Law360.

It's something the Ninth Circuit itself also highlighted in one appeal during the Woods litigation, noting that members of the court had previously raised concerns with how Arizona had a pattern of deviating from its lethal injection protocols at the last minute and with the state's general "shroud of secrecy" over its executions.

Baich said, "With each execution, what happened is we got more evidence to show what the state was doing was either hurting our clients or somehow violating the law."

In addition to the challenges to the protocols and drugs themselves, the First Amendment piece of the lawsuit was also key, he explained.

"We wanted to make sure that whatever drugs are used, that the drugs are going to be effective and our clients won't suffer," he said. "But also from the public's perspective, the government is carrying out this profound act and citizens should be aware of everything that goes on in order to be able to hold the government accountable."

The First Amendment claims in the suit were initially dismissed by the district court, with the Eighth and 14th Amendment claims moving forward. The attorneys eventually negotiated an agreement with the state that it would cease using the two drugs in question, and that if it violated the agreement, it would be on the hook for Sidley's attorney fees in the suit to that point.

"We wanted a mechanism by which we could ensure that they were going to live up to their obligations under that order even as administrations changed in the state," Anderson explained.

The attorneys also later negotiated an agreement limiting the ability to deviate from the established execution protocols. With the Eighth and 14th Amendment claims thus dealt with, Sidley and the public defenders were then able to appeal the dismissal of the First Amendment claims.

In a precedential opinion in November, the Ninth Circuit refused to revive efforts to obtain more information about drug suppliers or about the qualifications of those performing the execution, but did revive the claims related to the execution audio.

"Execution witnesses need to be able to observe and report on the entire process so that the public can determine whether lethal injections are fairly and humanely administered," the court ruled. "Barring witnesses from hearing sounds after the insertion of intravenous lines means that the public will not have full information regarding the administration of lethal-injection drugs and the prisoner's experience as he dies."

Though the attorneys for Woods hailed the resolution of the case as a victory, the state of Arizona highlighted that the state was able to reserve the right to not reveal information about the identity of lethal injection drug suppliers.

"Anti-death penalty activists continue to file lawsuit after lawsuit, attacking the court system and seeking retaliation against companies lawfully supplying execution drugs," Arizona Attorney General Mark Brnovich said in a statement. "Meanwhile, the victims' families continue to suffer as justice is further delayed. Enough is enough. Justice demands that the law be enforced and that those convicted of the ultimate crimes be held accountable for their gruesome acts."

For Wedel, who was born and raised in Arizona, reaching the district court settlement ensuring audio access during executions was "very rewarding."

"It was meaningful for me to go back to my home state and make sure that they were following the constitution scrupulously, and to be involved in a case that really did effect real constitutional change," said Wedel.

Sidley, which has a long history of taking on litigation related to capital punishment, has since filed several cases making similar claims in other states.

Baich called the relationship with Sidley "a great partnership" and an important part of securing relief in the suit.

"We are death penalty lawyers," he explained. "We represent clients in habeas corpus proceedings. We're not experts when it comes to civil litigation."

The Woods case was Wedel's and Anderson's first foray into death penalty cases, and both said they were proud of the impact in Arizona, where the attorney general's office has said there are 115 inmates currently on death tow, including 20 who have fully exhausted their appeals

"While this case was never about challenging the constitutionality of the death penalty writ large," Anderson said, "I think it is worth noting that, in addition to all of the specific relief that we have obtained, that in the state of Arizona there has not been an execution since Mr. Woods' execution."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Rebecca Flanagan.

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